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Vaughn Palmer: Judge slaps NDP, but allows it to intervene in pipeline case

VICTORIA — The New Democrats have managed to secure a seat for B.C. in the court challenge to the Kinder Morgan pipeline expansion, but only after enduring a public spanking by the presiding judge.

“British Columbia does not appear to understand the basic ground rules of the complex proceeding it is seeking to enter,” wrote Justice David Stratas of the Federal Court of Appeal this week in granting B.C. intervener status to oppose the federal government’s approval of the pipeline.

“To enter complex proceedings — especially at a very late date — a party must intimately understand the proceedings and to the extent possible work within existing strictures, doing its best to minimize any prejudice. Here, this did not happen.”

Granted, political considerations governed B.C.’s status as a late arrival.

The B.C. Liberal government chose not to intervene before the April deadline. Then an election intervened, followed by weeks of uncertainty before the New Democrats were able to take office on July 18.

Still, Stratas was not impressed that it took the New Democrats — who had long promised to intervene — so long to get their act together once in government.

“It took five weeks for B.C. to bring this motion, a very long time in a closely managed, expedited proceeding such as this,” he wrote. “The seven-paragraph affidavit offered in support of the motion does not offer a single word of explanation for the five-week delay.”

The case has been in the works for months with implications that go well beyond matters of political convenience for the B.C. government. Some 16 applications from 31 parties have been consolidated into a single proceeding to be heard starting Oct. 2.

“The public interest in this hearing going ahead as scheduled outweighs any public interest served by British Columbia’s intervention,” wrote the judge.

Turning to the actual contents of B.C.’s belated application for intervener status, he faulted the New Democrats for raising broad legal, constitutional and political issues that fell well outside the narrow matters of administrative law before the court.

“This court is a court of law that grapples with legal arguments; larger political issues that do not bear on the legal issues are irrelevant and distracting, and, thus, inadmissible.”

Going on, the judge delivered what amounted to a rebuke to NDP Attorney General David Eby, under whose direction the B.C. application was crafted and submitted.

“An intervener — even an attorney general — is not given an open microphone to say anything he wishes. … Interveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way.”

The province, in a followup to the initial application, did focus on two matters before the court: whether in approving the project, the National Energy Board and the federal cabinet had reasonably assessed the risk of marine oil spills and also respected the duty to accommodate the interests of First Nations.

Even there B.C. fell short of the court’s expectations: “Missing overall is any mention of the precise submissions B.C. intends to make as an intervener in these proceedings. In these circumstances, all that this court can do is assume that B.C. intends to speak to the concerns described above and no other concerns.”

Against that backdrop, the judge could have sent B.C. packing with a finding of too little, too late. He was urged to do so by the company and by the Alberta NDP government — no friends of its B.C. brothers and sisters on this issue — which gained intervener status in support of the project earlier this year.

Still, the judge found that for all the flaws in the B.C. NDP’s approach, the interests of the B.C. public ought to take precedence.

“Two provinces are most directly affected by these proceedings, Alberta and B.C.,” he wrote. “The public interest of Alberta has been given a voice in these proceedings. The public interest of B.C. deserves a voice, too.”

Having taken pity on the B.C. New Democrats, he put severe restrictions on what they can do. Their written intervention is limited to just 15 pages and must be in by Friday. They’ll also have an opportunity to make an oral presentation — “probably in the 10-to-30 minute range” — when the court convenes in October.

He directed B.C. to confine itself to matters already before the court, particularly “whether marine spill risks were unreasonably assessed,” and whether there was  “a breach of the duty to accommodate Indigenous peoples and First Nations.”

He also warned the New Democrats against advancing new issues — including new arguments “that in effect are new issues.” They should limit themselves to the evidence already before the court (“one of the largest evidentiary records this court has ever seen”) and avoid “unnecessarily” duplicating the submissions of other parties.

Lest there be any misunderstanding, he included a stern warning. “While British Columbia may have been blasé in approaching this motion to intervene, it must be vigilant in complying with these conditions: If any are breached, the panel hearing the appeal may revoke British Columbia’s status as an intervener.”

In short, the New Democrats are lucky to have got their foot in the door at this late date. But the time for free-ranging speculation and political games is over.

vpalmer@postmedia.com

FUENTE:

http://vancouversun.com/opinion/columnists/vaughn-palmer-toe-the-line-or-youre-out-judge-says-in-allowing-ndp-intervention-in-trans-mountain-case