Kinder Morgan Canada CEO Ian Anderson said he is hopeful about negotiations with the new social democratic government in British Columbia and that his pipeline from Alberta to the West Coast can still be salvaged after British Columbia launched a constitutional challenge to the project’s federal approval at a Vancouver press conference on Aug. 11.

Attorney General David Eby and Environment Minister George Heyman announced that the NDP minority government, which is kept in power by the B.C. Green Party, will request that it be added to two judicial reviews of the 525,000 barrel per day (bbl/d) Trans Mountain Expansion pipeline that will carry Alberta oil sands diluted bitumen and has already been approved by the National Energy Board, as well as given the final green light from Prime Minister Justin Trudeau. Construction is slated to start next month.

“We are committed to fighting for B.C.’s interests and it is government’s desire to seek intervenor status in legal challenges to federal approval of the pipeline expansion and increased oil tanker traffic off B.C.’s coast,” Eby said.

Two cases initiated by West Coast First Nations are about to go before the courts. The Tsleil-Waututh Nation, whose traditional territory includes the Burrard Inlet near Burnaby, site of Kinder Morgan’s terminal, initiated the review, which has since been joined by about 20 other groups and will be heard in November. The Squamish Nation has a similar review upcoming, but Heyman says no trial date has yet been set.

The provincial government will try to persuade the Federal Court of Appeal to dilute the exclusive jurisdiction over inter-provincial pipelines enjoyed by the federal government as set out in Section 92 of the Canadian constitution and confirmed by legal precedents stretching back to 1954.

The heart of the Province’s argument is that both levels of government have a “duty to consult” indigenous peoples about developments that take place on traditional territory (only one treaty has been signed in all of B.C.; the rest of the province is “unceded” and Canada’s jurisdiction is disputed by First Nations). Coastal First Nations are vociferous opponents of Trans Mountain Expansion, arguing the risk of a pipeline spill or oil tanker catastrophe are too high.

“Clearly, the new provincial government believes that its constitutional obligations (and those under the United Nations Declaration on the Rights of Indigenous Peoples) are powerful counterpoint to federal jurisdiction,” Margot Young, law professor at the University of British Columbia, said in an email.

“Successful argument before a court that section 35 [duty to consult] obligations that have not been met will stall—if not foreclose—implementation of any pipeline, regardless of federal approval.”

James Coleman, a professor with the Dedman School of Law at Southern Methodist University, said the big news in the announcement is the government’s insistence that construction cannot begin until consultation with First Nations is completed to B.C.’s satisfaction.

“There are a number of permits issued, but they cannot be acted on until the company meets the requirements of the environment certificate that was issued by the previous government of British Columbia,” Heyman said during the press conference. “Before they can begin work, the certificate required them to complete environment management plans.”

There are eight of them—only three have been accepted to date and the other five have not because they have not, according to the Environment Assessment Office, met the test of adequate consultation with First Nations.

This is a clear challenge to federal authority as exercised by the Canadian regulator, the National Energy Board, Coleman said. He added that Kinder Morgan has the option of repeating what it did several years ago when the City of Burnaby denied permits for exploration work on Burnaby Mountain. In that case, the NEB intervened, overrode the municipality and issued the permits.

If the Texas-based pipeline giant goes this route, the start of construction will likely be met by widespread protests similar to the Standing Rock Sioux opposition to the Dakota Access Pipeline a year ago, which attracted 5,000 activists to a “protest village” and drew worldwide attention. B.C. First Nations are closely allied with the Native American protesters and have said publicly that they are planning a similar strategy if their legal challenges fail or if Kinder Morgan starts construction as planned.

Anderson has chosen diplomacy for the moment. He said Kinder Morgan is committed to working with the province to obtain the necessary permits and permissions.

“We have undertaken thorough, extensive and meaningful consultations with aboriginal peoples, communities and individuals and remain dedicated to those efforts and relationships as we move forward with construction activities in September,” he said in a statement.

The B.C. announcement was greeted with dismay in neighboring Alberta, home of the Canadian oil and gas industry. Canadian pipelines south to the American Midwest and Gulf Coast markets are already full and shipping crude oil by rail is more expensive. Producers have also been adamant that they need alternative markets given the protectionist trade policies of the Trump administration that have already included triggering a renegotiation of NAFTA.

“One can expect [B.C. Premier John] Horgan, [legal adviser Tom] Berger et al to go all out to achieve injunctive relief to thwart efforts by Kinder Morgan to proceed with construction," said retired pipeline executive Dennis McConaghy, author of “Dysfunction—Canada after Keystone XL.” “They will be relentless until they are rebuffed by the courts.”

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