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.

含羞草研究社淚 don含羞草研究社檛 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,含羞草研究社� he told The Interior News in a phone interview from Calgary.

含羞草研究社淢y belief is that once that含羞草研究社檚 done, this project will not be viewed as being in the public interest and probably would not be approved.含羞草研究社�

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The NEB heard oral summaries from Sawyer含羞草研究社檚 lawyer William Andrews of Vancouver, Coastal Gaslink含羞草研究社檚 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 TransCanada含羞草研究社檚 federally-regulated Nova Gas Transmission Limited (NGTL) system and thus should fall under federal jurisdiction.

含羞草研究社淭ransCanada含羞草研究社檚 CGL project and NGTL system form a single federal work or undertaking,含羞草研究社� Andrews told the board. 含羞草研究社淭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.含羞草研究社�

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

含羞草研究社淚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.含羞草研究社�

Duncanson countered that argument quoting the dissenting opinion in the Westcoast case by Justice Beverly McLachlin in which she writes: 含羞草研究社淚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 含羞草研究社� has the power to regulate provincial works and undertakings.含羞草研究社�

In reply to Williams含羞草研究社� oral submissions, Duncanson scoffed at the ideas.

含羞草研究社淭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 it含羞草研究社檚 all part of this one big thing含羞草研究社攖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,含羞草研究社� he said.

含羞草研究社淎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.含羞草研究社�

Sawyer admits he is a big underdog in the case.

含羞草研究社淭o be clear, the other side is highly-motivated and very well-funded, so we were up against, collectively I counted 含羞草研究社� 28 lawyers in the room representing the pro-LNG side of the equation,含羞草研究社� he said. 含羞草研究社淲e were totally outgunned.含羞草研究社�

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

含羞草研究社淚 have a good case,含羞草研究社� he said. 含羞草研究社淭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.

含羞草研究社淗aving said that, we also recognize that if the bookies were taking odds, we含羞草研究社檇 be a long shot.含羞草研究社�

Coastal GasLink is also feeling good about its case.

含羞草研究社淐oastal GasLink is confident in the facts put before the National Energy Board,含羞草研究社� the company stated in an email following the hearing. 含羞草研究社淎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.含羞草研究社�

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.

含羞草研究社淭his is one stage of a longer story; the story is not over yet,含羞草研究社� he said.

While the legal challenge is based on a jurisdictional argument, Sawyer含羞草研究社檚 motivation is environmental.

含羞草研究社淢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.含羞草研究社�

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

含羞草研究社淚f you actually look at natural gas on a life-cycle basis 含羞草研究社� exploration, drilling etc., if you add that entire life-cycle analysis together 含羞草研究社� 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 it含羞草研究社檚 an environmentally-friendly fuel is just mythology.含羞草研究社�

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: Unist含羞草研究社檕t含羞草研究社檈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.含羞草研究社檚 total carbon output.

含羞草研究社淪how me where in the social and environmental assessment of the impacts of this project is that ever discussed and fact is it wasn含羞草研究社檛.

含羞草研究社淚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, 含羞草研究社榮crew it, we don含羞草研究社檛 care about the caribou, we don含羞草研究社檛 care about the health risks, we don含羞草研究社檛 care about anything but the jobs, jobs, jobs,含羞草研究社� I would not necessarily agree with that, but I would say, 含羞草研究社榦kay, we含羞草研究社檝e got the facts on the table and they still made that decision, I have to respect it.含羞草研究社�

含羞草研究社淩ight now, because all that information wasn含羞草研究社檛 on the table, I don含羞草研究社檛 have to respect the decision. I think it was a mistake and I think history will demonstrate it was a mistake.含羞草研究社�

editor@interior-news.com
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