A constitutional challenge to the Coastal GasLink pipeline project is now in the hands of the National Energy Board.

Michael Sawyer, a Smithers man who made the application to the board argues that British Columbia did not have jurisdiction to approve the project and had it been assessed under the federal jurisdiction it might not have been.

sa国际传媒淚 donsa国际传媒檛 believe there was a proper assessment of the true environmental and social and economic costs of this project and what I would like to see happen is that that get done,sa国际传媒� he told The Interior News in a phone interview from Calgary.

sa国际传媒淢y belief is that once thatsa国际传媒檚 done, this project will not be viewed as being in the public interest and probably would not be approved.sa国际传媒�

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The NEB heard oral summaries from Sawyersa国际传媒檚 lawyer William Andrews of Vancouver, Coastal Gaslinksa国际传媒檚 legal counsel Sander Duncanson, and a number of other intervenors on May 2 and 3 in Calgary.

Andrews argued that although the CGL pipeline will be entirely within B.C., it will be functionally integrated with TransCanadasa国际传媒檚 federally-regulated Nova Gas Transmission Limited (NGTL) system and thus should fall under federal jurisdiction.

sa国际传媒淭ransCanadasa国际传媒檚 CGL project and NGTL system form a single federal work or undertaking,sa国际传媒� Andrews told the board. sa国际传媒淭he common purpose of CGL project and the NGTL system is to transport natural gas from the WCSB (Western Canada Sedimentary Basin) to domestic and export markets, crossing provincial and national boundaries.sa国际传媒�

Andrews cited the Supreme Court of Canada decision in Westcoast Energy v. Canada as the seminal case on jurisdiction.

sa国际传媒淚t is the first test in West Coast that is relevant here, which is, an otherwise local work or undertaking is subject to federal jurisdiction if it is part of a federal work or undertaking in the sense of it being functionally integrated and subject to common management, control and direction.sa国际传媒�

Duncanson countered that argument quoting the dissenting opinion in the Westcoast case by Justice Beverly McLachlin in which she writes: sa国际传媒淚n summary the Constitution is clear. The provinces have the right to control works and undertakings within their boundaries, including facilities related to the production of resources. Exceptionally, and only to the extent required to maintain interprovincial transportation and communication networks, the federal government sa国际传媒� has the power to regulate provincial works and undertakings.sa国际传媒�

In reply to Williamssa国际传媒� oral submissions, Duncanson scoffed at the ideas.

sa国际传媒淭his, the idea of the TransCanada undertaking including the CGL pipeline because there is a common purpose that TransCanada has, this master plan of connecting to LNG markets and itsa国际传媒檚 all part of this one big thingsa国际传媒攖hat is a current that runs through a lot of what we heard from Mr. Andrews today and the written argument from Mr. Sawyer as well,sa国际传媒� he said.

sa国际传媒淎nd on that, just because a corporate parent has an interest in expanding its business does not mean all of that business is necessarily part of the same undertaking.sa国际传媒�

Sawyer admits he is a big underdog in the case.

sa国际传媒淭o be clear, the other side is highly-motivated and very well-funded, so we were up against, collectively I counted sa国际传媒� 28 lawyers in the room representing the pro-LNG side of the equation,sa国际传媒� he said. sa国际传媒淲e were totally outgunned.sa国际传媒�

Nevertheless, he feels pretty good about how the proceedings are going.

sa国际传媒淚 have a good case,sa国际传媒� he said. sa国际传媒淭he last time I went to the court of appeal, I won on the Prince Rupert [Gas Transmission] pipeline on, not identical, but very similar facts and similar law, so we think we did a pretty good job and we think if the board reflects on all of the arguments fairly, we think we have a pretty good chance of winning.

sa国际传媒淗aving said that, we also recognize that if the bookies were taking odds, wesa国际传媒檇 be a long shot.sa国际传媒�

Coastal GasLink is also feeling good about its case.

sa国际传媒淐oastal GasLink is confident in the facts put before the National Energy Board,sa国际传媒� the company stated in an email following the hearing. sa国际传媒淎s argued by various participants before the Board, including the Attorneys General of B.C., [Saskatchewan], and Canada, our view is that jurisdiction over Coastal GasLink is and has also been properly with the province. Coastal GasLink continues to construct this fully approved project while awaiting a decision by the Board.sa国际传媒�

Even if he wins, Sawyer admitted, he is a long way from stopping the project. It will be at least two to three months before the NEB comes back with a decision, he said, and then, win or lose, there will likely be an appeal.

sa国际传媒淭his is one stage of a longer story; the story is not over yet,sa国际传媒� he said.

While the legal challenge is based on a jurisdictional argument, Sawyersa国际传媒檚 motivation is environmental.

sa国际传媒淢y view is that the project was never subjected to a fair and adequate environmental assessment, that there are many many aspects of the project, that were simply not considered.sa国际传媒�

In general terms, he disputes the idea that natural gas is a means of reducing the impact of carbon on the environment.

sa国际传媒淚f you actually look at natural gas on a life-cycle basis sa国际传媒� exploration, drilling etc., if you add that entire life-cycle analysis together sa国际传媒� natural gas produced in northeast B.C., shipped to Kitimat, converted to LNG, shipped to China, converted back to gas then used to displace coal, [it] is between two and 27 per cent worse than coal on a life-cycle basis, so this idea that itsa国际传媒檚 an environmentally-friendly fuel is just mythology.sa国际传媒�

In specific terms, he cites, for example, impact on the Graham caribou herd in northeast B.C., which, he said, has been reduced by 82 per cent since drilling began in 1986.

WATCH: Unistsa国际传媒檕tsa国际传媒檈n block TransCanada Coastal GasLink worksite

He also said, based on his own calculations, that the carbon embedded just in the steel pipe that will make up the CGL pipeline, again on a life-cycle basis, is equivalent to five years of B.C.sa国际传媒檚 total carbon output.

sa国际传媒淪how me where in the social and environmental assessment of the impacts of this project is that ever discussed and fact is it wasnsa国际传媒檛.

sa国际传媒淚f, at the end of the day, we do that assessment and we have all these facts on the table so we can make an intelligent decision and British Columbians decide and say, sa国际传媒榮crew it, we donsa国际传媒檛 care about the caribou, we donsa国际传媒檛 care about the health risks, we donsa国际传媒檛 care about anything but the jobs, jobs, jobs,sa国际传媒� I would not necessarily agree with that, but I would say, sa国际传媒榦kay, wesa国际传媒檝e got the facts on the table and they still made that decision, I have to respect it.sa国际传媒�

sa国际传媒淩ight now, because all that information wasnsa国际传媒檛 on the table, I donsa国际传媒檛 have to respect the decision. I think it was a mistake and I think history will demonstrate it was a mistake.sa国际传媒�

editor@interior-news.com
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