Aug 30, 2018
'The final death knell': Experts react to Trans Mountain court ruling
Morneau vows Trans Mountain ‘will be built’ despite court ruling
A federal court ruling announced Thursday could send Justin Trudeau’s government back to the drawing board on the Trans Mountain pipeline expansion project.
The Federal Court of Appeal ruled that Canada’s regulatory review of the project was flawed and that the government must re-submit its project plans to the National Energy Board. Trudeau’s government approved the project in 2016 and announced this past spring to buy the Trans Mountain project for $4.5 billion from Kinder Morgan Canada.
Here’s a look at how analysts and experts are reacting to the court’s decision:
A former TransCanada executive did not mince words over his outrage.
“This decision is an utter abomination… It’s almost impossible to get a definition of what is it that whatever constituted adequate consultation. Surely, adequate consultation doesn’t mean changing your mind because the disgruntled – whomever they are – are against the recommendation of the due process of not only the statutorily-empowered regulator, but also the democratically-elected government.”
- Dennis McConaghy, former executive vice-president of pipeline strategy and development, TransCanada
A former premier of Saskatchewan questioned how the court came to this decision, having set a template for approval with a previous ruling.
“The same Federal Appeals Court judge was on both (the Trans Mountain and Northern Gateway) cases… If you’ve got a process where, in one case, the judge says: ‘Here’s what you’ve got to do better in terms of consultation,’ or ‘Here’s the proper process.’ In the next case, that recommendation, by the same judge, is followed and the same judge says, ‘No. That’s not enough.’ I think there’s a real concern there… and that concern will be, ‘What is enough?’ What is the process?”
- Brad Wall, former premier of Saskatchewan
GMP FirstEnergy said in a note to clients that the decision could mark the end of the road for the expansion project.
“The Canadian Federal Court of Appeal’s decision is a material negative, if not a death blow for the success of the project … We believe the regulatory goat rodeo regarding this project (and others) has led to a significant reduction in investment in Canada and outright divestitures by foreign corporations.”
- Ian Gillies, managing director of equity research, GMP FirstEnergy
The leader of the British Columbia Green Party went a step further, calling the decision the “final death knell” for the project he has actively opposed since aiding John Horgan’s NDP government to power in July, 2017.
“The fact that this would be sent back to a new NEB process, in my view, should be the death knell – the final death knell – for this project, because that new process would not have ever approved it in light of the importance of truth and reconciliation [and] in light of the importance of dealing with end-to-end environmental issues associated with the project. I suspect we’re going to see this project kicked down the road past the next federal election and it’ll quietly die the death of a thousand paper cuts.”
- Andrew Weaver, B.C. Green Party leader
A former Quebec premier and deputy prime minister said the ruling has the potential to severely hurt foreign investment in major Canadian energy projects.
“This will be damaging to the perception from outside Canada of our ability to get projects done. We have to be very honest about that. This is going to affect us negatively. And if you’re seeking to make an investment in Canada, it’s a big question mark about our ability to get big projects done. That’s what the leaders in Ottawa need to focus on. This needs to be fixed.”
- Jean Charest, partner, McCarthy Tetrault LLP
However, the Canadian head of investment management firm PIMCO said the news is hardly surprising, given the nation’s regulatory environment.
“I don’t think it’s like a market-moving event. I don’t think it would change, at least, my perspective – or most other investors’ perspectives – of Canada. That said, it is just a reminder that it is not necessarily the friendliest environment for infrastructure investment and I think it is a black eye to the government, who just bought the asset that’s now not worth as much as it was the day before.”
- Ed Devlin, head of Canadian portfolio management, PIMCO
In a statement, the leader of Canada’s official opposition placed the blame for the court ruling directly at the feet of his main political rival.
“Justin Trudeau is spending $4.5 billion in taxpayer money to buy a pipeline he can’t even build. This is quickly becoming the most expensive scandal in the history of Canadian politics. This is Justin Trudeau’s personal failure.”
- Andrew Scheer, Leader, Conservative Party of Canada
An environmental activist claimed victory, saying the decision vindicates outcry over how the project was approved in the first place.
“What the National Energy Board did – and this is what people don’t have a full comprehension of – was, the way that they approved this project, saying it wouldn’t have significant effects, was truncating it in Burnaby and excluding the marine shipping component... Our argument was that that was unlawful. That that violated the Canadian Environmental Assessment Act and the Species at Risk Act. And the courts agreed.”
- Misty MacDuffee, lead biologist and program director, Raincoast Conservation Foundation
The leader of a First Nations group that had a mutual benefit agreement with the federal government on Trans Mountain expressed disappointment, but not anger over Thursday’s ruling.
“I’d hoped that the court had found differently in this case, but they didn’t. Yes, I’m disappointed, but we knew right from the outset that they were likely to fall short of the mark where [First Nations] consultation is concerned. It’s a duty that’s visited on the crown, this duty to consult and consult adequately. I think it’s back to the hands of the government and they have some options to consider. For us now, it’s wait and see.”
- Ernie Crey, chief, Cheam First Nation
The former CEO of Encana said he’d like to see the federal government take matters into its own hands.
“One of the senators, maybe a year ago or so, said that the federal government should enact their constitutional right through an act of Parliament to approve and carry out projects that are in the national interest. They decided not to do that because they said, of course, we have the jurisdiction, we don’t need to do that… It’s time to recall parliament now and to do exactly that.”
- Gwyn Morgan, former Encana CEO
One investment strategist said the decision presents yet another problem for the Canadian economy.
“Another kick in the gut for Canada. Between NAFTA, Saudi Arabia, whatever… If we can’t get our resources to tidal water, which is all this is about, this is going to be a hard go for this country.”
- Brian Acker, president and CEO, Acker Finley
Some, like the CEO of the C.D. Howe Institute, saw both the storm clouds and the silver lining.
“I have been worried since the government took over this project that we’ve now got all this political risk, because they don’t enjoy going up against all these cross-currents and all the opposition to it. I think that they can still get it through, but it’s another roadblock, it’s another delay. It puts the taxpayer further on the hook and it casts this bigger cloud over Canada.”
- Bill Robson, CEO, C.D. Howe Institute