Trudeau approves Trans Mountain pipeline, kills Northern Gateway

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Prime Minister Justin Trudeau has made good on his election promise to kill the $7.9 billion Enbridge Inc. (TSX:ENB) Northern Gateway pipeline project, and has approved the $6.8 billion Trans Mountain pipeline expansion.

“We approved this project because it meets the strictest environmental standards,” Trudeau said of his decision to approve Trans Mountain at a press conference November 29 in Ottawa. He also said it and the line 3 pipeline “are in the national interest.”

The decision to kill the Northern Gateway pipeline project was not unexpected. In fact, many observers considered a move necessary to set the stage to approve the Trans Mountain pipeline. Other set pieces include a national carbon pricing scheme and the recently announced $1.5 billion in funding to improve Canada’s oil spill prevention and response capabilities.

Trudeau had been telegraphing his intent to kill Northern Gateway even before the election, when he said the Great Bear Rain Forest was no place for a pipeline (meaning Northern Gateway) but generally supported other pipeline projects, like the Keystone XL, which could now be resurrected under a Donald Trump White House.

The Joint Review process for Northern Gateway began in January 2012. The project was approved, with 209 conditions, under the Stephen Harper government in 2014.

But First Nations were successful in a court challenge, when the Federal Court of Appeal ruled that federal officials had not properly consulted several First Nations along the line, and quashed an Order in Council approving it.

That meant the federal government would have to do further consultations with the First Nations affected by the pipeline.

But in the meantime, a new government had been elected – a government that promised to permanently ban oil tankers on the north coast.

It’s been reported that Enbridge has spent in the order of $500 million just trying to get Northern Gateway approved. Given that it was approved by federal regulators, and given that the failure to consult with First Nations was a failing of the government, not Enbridge, the government’s decision to kill the project raises the question of whether the company could now sue the federal government for killing a project that had been approved by the proper regulatory bodies.

Ironically, that might be more of an option under international trade treaties like NAFTA, if it weren’t for the fact that Enbridge is a Canadian company, according to Robert Wisner, a partner at McMillan LLP who specializes in international arbitration.

“Enbridge is a Canadian company and therefore can’t sue Canada under NAFTA,” he said. “It’s possible that American shareholders of Enbridge could sue, but they would need to show that Northern Gateway was directly linked to the success of their investments in Enbridge.”

The Trans Mountain pipeline has met with pushback in B.C. from First Nations, environmentalists and municipal politicians, like Vancouver Mayior Gregor Robertson and Burnaby Mayor Derek Corrigan.

Asked how he could approve the Trans Mountain in the face of such strong opposition, Trudeau said, “We will not be swayed by political arguments.”