The Trans Mountain pipeline expansion project cleared a significant legal hurdle this week, but months of regulatory hearings lie ahead before the company’s construction contractors can begin work on vast stretches of the route across British Columbia.
The Federal Court of Appeal ruled on Tuesday that Ottawa met its obligations for Indigenous consultation before it reapproved the $9.3-billion expansion project last year.
While the project was in limbo, the regulatory process on the precise location for the new oil pipeline had ground to a halt.
The Canada Energy Regulator is now resuming its detailed route hearings for landowners and Indigenous communities along the pipeline’s path. Construction is already under way in some sections along the route between Edmonton and Burnaby, B.C. However, roughly one-third of the 1,147-kilometre route has not yet been approved, mostly in the B.C. stretch between Kamloops and Metro Vancouver.
The CER has scheduled hearings on the remaining portions of the route. Those hearings are expected to carry on through the summer and final decisions are due before the end of the year.
There is strong opposition to the federally owned pipeline on the West Coast because of the increased oil tanker traffic that will result from the project. The Supreme Court of Canada has yet to decide whether to hear additional legal challenges.
In addition, some sections of the pipeline route are being contested because of local environmental concerns.
The expansion will more than triple the existing pipeline’s capacity by adding a second pipeline. The CER’s process is looking at the specifics of where the twinned pipeline will be built, and details of its construction. The CER has the power to reject a section of the proposed route, which would leave Trans Mountain to propose a new path.
One section of the proposed route has been frozen by the regulator pending a review because of concerns mounted by the Coldwater Indian Band in B.C.'s Interior.
The band fears the new pipeline will threaten an aquifer that is their sole source of drinking water, and they are not persuaded there is any alternate route through their valley that would be safe.
The existing pipeline runs through their primary residential community on the Coldwater Reserve, 12 kilometres southwest of Merritt. Trans Mountain proposes running its second pipeline across the aquifer that lies adjacent to their reserve.
“We have to make sure that our sole source of drinking water is protected,” Chief Lee Spahan said in an interview Wednesday. The regulator is holding a first round of hearings in May to look at Coldwater’s concerns.
The Coldwater Indian Band, representing 850 people, was one of the Indigenous groups that sought to block the pipeline expansion in court, and this week the Federal Court of Appeal made clear that their concerns will have to be dealt with now at the regulatory level.
“Trans Mountain will have the burden of showing which is the better route during the detailed route hearing,” the judgment states.
Among the 156 conditions imposed on Trans Mountain by Canada is a requirement to produce a hydrogeological study assessing the potential impact on the aquifer, which must be done before the regulator can make a final determination, the court said. “The CER will consider the science and data sufficiency during the detailed route hearing."
Since at least 2015, Coldwater has sought a commitment to avoid risks to its drinking water, and a process that would evaluate alternative routes. Now, Mr. Spahan said, Trans Mountain is proposing a water aquifer study that it says will take just two months to complete. Coldwater maintains it would take at least a full year for a study, which it adds should have been undertaken years ago.
The court rejected Coldwater’s legal argument that it had not been adequately consulted on the project. The regulator “will have the occasion to inform itself of the impact to the aquifer and take the rights and interests of Coldwater into account before making a final decision,” it concluded.
The four Indigenous groups that brought the case to the Federal Court of Appeal have 60 days to decide if they will seek to appeal the ruling.
“We are going to do whatever it takes to make sure that our water stays protected,” Mr. Spahan said.
Justine Hunter