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Tories can likely push pipelines, but not without delays in court

Tories can likely push pipelines, but not without delays in court
Ottawa's clout will only go so far and will face legal challenges, experts say

By Doug Ward, Vancouver Sun
May 2, 2012

Retired NHL star Scott Niedermayer (left) and economist Robyn Allan speak out against proposed construction of the Northern Gateway pipeline Tuesday.
Photograph by: Jason Payne, PNG, Vancouver Sun

The Conservative government probably has enough power to override growing opposition in B.C. to the Enbridge Northern Gateway pipe-line and the Kinder Morgan pipeline expansion - but not enough clout to prevent the projects from getting snagged in the courts for years.

The Tories announced last month in their budget that the federal cabinet will have the ability to overrule the National Energy Board on major projects considered by Ottawa to be in the "national interest."
But legal experts say aboriginal groups in B.C. and even a provincial government under the NDP could mount legal challenges that could add to the projects' legal and financial risk.

"I think we could see some constitutional battles reaching the courts. But I can't predict the outcome at this point," said University of B.C. constitutional law professor Elizabeth Edinger. "But there will certainly be a serious attempt to delay."

Edinger said new legislation giving cabinet the trump card over energy projects of "national interest" gives the Harper government the "final say" politically. But cabinet's new powers may not give the Tories enough of a "leg up" legally. Edinger said the courts would probably not consider themselves constrained by the "national interest" claim when considering legal issues arising from the two pipeline projects.
The list of opponents in B.C. to the export pipelines has grown steadily.

The provincial NDP, which could form government next year, came out Monday against Enbridge's Northern Gateway pipeline. Vancouver Mayor Gregor Robertson and Burnaby Mayor Derek Corrigan have spoken strongly against the Kinder Morgan pipeline expansion. Even B.C. hockey hero Scott Niedermayer has joined the anti-Northern Gateway bandwagon.

But the most substantial legal road-blocks to the progress of the two pipe-lines will probably come from aboriginal groups that fear oil spills could irreparably harm their communities.
UBC professor George Hoberg said some legal cases could stem from the Crown's duty to "consult and accommodate" first nations over major resource projects on disputed lands.

The courts could be asked to rule on whether the environmental assessment of the Enbridge project goes far enough in addressing the duty to consult with first nations and try to accommodate their interests.
When it comes to a potential conflict between the pro-pipeline Harper Conservatives and an anti-pipeline NDP government in B.C., backed by Robertson and other mayors, Ottawa would probably win.

UBC's Edinger said Canadian law gives the federal government the right to "constitutionally barge on in and do whatever it damn well pleases" when it comes to pipelines. But Ottawa's willingness to wield all of its powers could be tempered by politics if both the next B.C. government and major municipalities are in opposition, she added.

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