Tories deny responsibility for 'critical' Trans Mountain mistake made under Stephen Harper's watch

Federal Conservatives denied responsibility on Tuesday for a "critical" mistake made under their watch, which has left a major west coast oil pipeline and tanker expansion in limbo.

Instead, Tory MPs pointed the finger at Prime Minister Justin Trudeau's government for failing in its own due diligence, in the wake of a stunning Aug. 30 decision by the Federal Court of Appeal. The ruling quashed Trudeau's November 2016 approval of the Trans Mountain pipeline expansion project. Moments later, shareholders of Texas-based Kinder Morgan voted almost unanimously to sell their interests in existing Trans Mountain pipeline system to the Canadian government for $4.5 billion.

While the ruling blamed both the Harper and Trudeau governments for the mistakes that led it to revoke the approval, Tory finance critic Pierre Poilievre summoned reporters to a news conference on Tuesday to criticize Trudeau.

“The process was approved by the Liberal cabinet in spring 2016, which was Justin Trudeau’s statement that he had completed all the necessary steps for the project to go ahead,” said Poilievre, ahead of an emergency meeting of the House of Commons natural resources committee.

“To try and blame the Conservatives for something that happened six or seven months after Justin Trudeau took office, for decisions that his government had made exclusively after he took office, is a little bit rich."

The Trans Mountain expansion is now facing uncertainty in the wake of the ruling which has brought construction to a halt, until the government addresses the mistakes outlined in the unanimous court ruling, signed by Justice Eleanor Dawson.

Dawson wrote that the Trudeau government was given "flawed" recommendations by the National Energy Board (NEB), which had been tasked by the Harper government to review the pipeline expansion. Dawson wrote that the NEB made a “critical error” when it decided not to include tanker traffic, a move the court said sparked a chain reaction of “unacceptable deficiencies" that tainted the NEB’s final report.

The NEB, which says it operates at arms length from the government, took that so-called “scoping” decision on April 2, 2014, during the 2011-2015 majority government of former Conservative prime minister Stephen Harper. The review was done under rules that were changed by a major overhaul of Canada's environmental laws by the Harper government in 2012.

Several critics, including federal Liberals while in opposition, had warned that the process and rules set up by Harper were biased and damaging public confidence in the approval of major projects.

Former energy executive 'gratified' by court decision

One independent expert, former BC Hydro chief executive Marc Eliesen, even went public with his frustrations in 2014, highlighting one of the errors that would later factor into the court's decision.

Eliesen had previously applied and was accepted to participate in the NEB hearings into the Trans Mountain expansion. But a few months into the process in 2014, he publicly announced he was withdrawing from the regulator's review, calling it a “farce” and a “fraudulent process.”

In a scathing letter, sent on Oct. 30, 2014, the retired energy executive noted that the regulator had rejected numerous requests from other participants who were seeking more information, including questions about marine and tanker safety that were sent by the B.C. government, at the time led by former Liberal premier Christy Clark.

The board responded to the B.C. government’s queries by stating that these questions were “unreasonable or overly broad in scope” and “would not be material to the Board’s assessment.”

Eliesen said anyone who was trying to press the company for answers about the project’s safety ran up against the same wall that was put up by the NEB.

“I noticed the pattern taking place with most of the other interveners — that roughly 80 to 85 per cent of the questions that they put forward, that they wanted answered, were not answered and the board went with Kinder Morgan in denying any fuller answers,” he told National Observer in an interview.

“That was one of the factors which led me to believe that this process was biased, that the board was a captured regulator and I’m quite gratified with the Federal Court of Appeal decision, that particularly in the marine and tanker area, that they saw the deficiency in what the NEB had undertaken."

Alberta's NDP Premier Rachel Notley has also noted that the latest legal setback originates with Harper's decisions, but has urged the Trudeau government to fix it.

After it was elected, the Trudeau Liberals introduced an interim process in January 2016 to improve federal oversight of major projects and restore public confidence, in the wake of Harper's 2012 reforms. The process was meant to expand consultations with First Nations and members of the public.

But Conservatives opposed this move with newly-minted natural resources critic, Candice Bergen, saying at that time, that this was bad news for industry, adding an extra "layer" in approval processes and another time delay.

Motion to force ministerial appearances defeated

NDP MP and committee member Richard Cannings said there was plenty of blame to go around.

"The Liberals do deserve some of the blame here, but the irony in calling this meeting is, this is a problem that was created by the Conservatives in the previous government," he said.

Cannings blamed the Tories for “creating this mess” and the Liberals for “failing to clean it up.” He highlighted the Coldwater Indian Band, whose aquifer supplying the sole source of drinking water for most residents of the reserve was crossed by the pipeline route.

"There's no evidence that actually acting on that concern was ever considered,” he asserted. "The government knows what proper consultation is — they should," he added. It requires a "sincere desire to address concerns.”

On Tuesday, the natural resources committee defeated a motion by Tory natural resources critic Shannon Stubbs to summon Natural Resources Minister Amarjeet Sohi and Finance Minister Bill Morneau to a meeting to explain what went wrong with the Trans Mountain approval process.

Stubbs noted the then-natural resources minister, Jim Carr, had said he was satisfied that extra consultations with First Nations would placate the courts.

"The ruling on Thursday is very clear," she said, "it was the failure on that process."

Poilievre doubled down on his comments about Liberal culpability during the committee discussion, saying "it was Justin Trudeau's process. It was a process approved by Justin Trudeau's cabinet in 2016.”

"We expect they'll try to blame everybody but themselves,” he said.

Liberals assessing next steps, say MPs

The government has yet to say if it will appeal the decision to the Supreme Court of Canada.

"It is their obligation and their responsibility to disclose urgently and clearly exactly what the next steps will be," argued Stubbs. "There are options clearly available for the Liberals...we hope to see them make those proposals.”

Liberals laid the blame on the Conservatives.

"For the past 10 years, the Harper Conservatives had the opportunity to diversify markets and get pipeline to tidewater,” said Marc Serré, a Liberal MP on the committee.

"We inherited an environmental process that was flawed and we made efforts to improve the process.”

Serré said the government was taking “the appropriate time to review the decision and assess next steps.” And he repeated the Trudeau government’s mantra, that "the facts and evidence demonstrate that it is in the national interest.”

"This was not our first choice, but it was the right choice to protect thousands of jobs.”

Paul Lefebvre, parliamentary secretary to the Minister of Natural Resources, echoed Serré’s comments after the meeting.

“The Federal Court of Appeal decision has been rendered, it’s a lengthy decision, there’s a lot of information in there that we need to review,” said Lefebvre, “and to make sure that on an ongoing basis, that we’re respecting our obligations with respect to consulting First Nations, and making sure that we’re protecting the environment.”

The Conservatives also failed in an effort on Tuesday to summon Trudeau's ministers to testify before the parliamentary committee about what went wrong because Liberal MPs used their majority to defeat the Tory motion.

- with files from Mike De Souza