Conservationists File Legal Challenge to Trans Mountain Reapproval Over Whales

July 9, 2019 Updated: July 9, 2019

VANCOUVER—The federal government is facing a new legal challenge after it approved the Trans Mountain pipeline expansion for a second time.

Ecojustice has filed a motion to the Federal Court of Appeal on behalf of Raincoast Conservation Foundation and the Living Oceans Society asking for leave to launch a judicial review of cabinet’s decision.

The organizations say in a joint statement that Ecojustice will argue cabinet failed to comply with its responsibility to protect critically endangered southern resident killer whales when it reapproved the project June 18.

This is the second time Ecojustice has gone to court on behalf of the conservation groups over the pipeline expansion, which is expected to increase tanker traffic sevenfold in the whales’ habitat.

A aerial view of Kinder Morgan's Trans Mountain marine terminal, in Burnaby, B.C., is shown on May 29, 2018. (Jonathan Hayward/The Canadian Press)
A aerial view of Kinder Morgan’s Trans Mountain marine terminal, in Burnaby, B.C., is shown on May 29, 2018. (Jonathan Hayward/The Canadian Press)

Last August, the federal court struck down the government’s previous approval of the project, ruling the marine environment hadn’t been considered and Indigenous consultations were incomplete.

Margot Venton, nature program director for Ecojustice, said in an interview that while cabinet and the National Energy Board have since acknowledged marine threats, the approval still fails to mitigate their impacts on the endangered species.

“Our concern is they haven’t satisfied their responsibilities under the law because they have not ensured that there will be measures in place that will avoid or lessen these effects on the whales,” she said.

In the wake of the Appeal Court’s ruling, Natural Resource Minister Amarjeet Sohi ordered the National Energy Board to undertake a new environmental assessment of the impact additional oil tankers will have, with a specific focus on the risks to southern resident killer whales.

Ottawa also announced an investment of $61.5 million over five years to address threats to the species, including limited prey availability, physical and acoustic disturbances, and ecosystem contaminants.

The National Energy Board recommended in February the government approve the expansion project after reviewing marine environment impacts. The board found that the project was in the public interest despite likely “significant adverse effects” to endangered southern resident killer whales and Indigenous cultural practices related to the animals.

From the time the Trans Mountain expansion was proposed in 2013 to the reconsideration, the number of southern resident killer whales declined to 74 from 82, Ecojustice said in the court documents filed Monday.

The species is protected under the federal Species at Risk Act. The main threats to their survival are the reduced availability of chinook salmon, physical and acoustic disturbances from vessels, marine contamination, and ship strikes. The latter was highlighted when Ottawa updated its recovery strategy for the species in December.

If the government has failed to meet requirements outlined in the Species at Risk Act, then the conservationists believe the court can once again set aside the project’s approval, Venton said.

“The Court of Appeal was very clear in its August decision that cabinet needs to comply with the law for their approval of the pipeline to be valid.”

A rare white killer whale, shown in a handout photo, has been spotted off the coast of British Columbia. (HO-Department of Fisheries and Oceans-Miguel Neves Dos Reis/The Canadian Press)
A rare white killer whale, shown in a handout photo, has been spotted off the coast of British Columbia. (HO-Department of Fisheries and Oceans-Miguel Neves Dos Reis/The Canadian Press)

Fisheries Minister Jonathan Wilkinson says in a statement the federal government is committed to protecting southern resident killer whales.

He pointed to measures announced in May to address key threats, including an agreement with the Pacific Whale Watch Association to refrain from offering tours of the species, a program to increase slow-down zones for commercial vessels near Vancouver’s port, and a requirement that vessels stay at least 400 metres away from all killer whales in the southern residents’ critical habitat.

Wilkinson issued the statement Monday after the Canadian Science Advisory Secretariat released a report assessing the combined incremental effects of key threats on both the southern and northern resident killer whales.

The report is an important addition to existing research but doesn’t take into account federal actions and investments since 2017, the statement says.

The report says it also doesn’t take into account future human activity and “low probability-high impact events” like catastrophic oil spills were out of its scope.

“The Government of Canada recognizes the Northern and Southern resident killer whales face imminent threats to survival and recovery and we are committed to doing everything we can to protect them,” the Fisheries Ministry statement says.

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