Speaking with Mike Smyth on CKNW's Simi Sara show, Ross said the NDP is using First Nations as a political tool, a strategy he said eventually could end with the government giving Indigenous communities an absolute veto over projects by implementing the United Nations Declaration on the Rights of Indigenous Peoples. Not all conditions have been met, Heyman said. There are eight of them. So far, the company has only submitted three provincial environmental management plans because another five were rejected due to that inadequate consultation.
Despite the government's push for more consultation with First Nations, dozens of bands along the route and private land owners have signed agreements with Kinder Morgan, which has said it plans to begin construction in the fall.
"Until it is completed, they are not able to begin work. They will be in violation of their environmental assessment certificate". It is seeking intervener status in an upcoming lawsuit on the project's approval, and cabinet ministers stressed construction on Crown land can't proceed until all provincial approvals are in place.
There are now two legal challenges that will soon come before the courts.
They've hired well known lawyer Thomas Berger, who some might call "the King of getting to No", to represent the BC government as they seek intervenor status in court cases of those First Nations groups opposed to the project. And the court may now see the unusual spectacle of the party being sued basically pleading "guilty as charged", rather than defending itself.
"And then for a government to come up at the last minute with maybe more rules, basically you're sending a message to all of the industry across the world [that] even if you come to B.C. and follow the rules there's a pretty good chance you're not going to get your project built anyway."
Kinder Morgan's project proposes to nearly triple the number of barrels of oil shipped per day from Edmonton to the shores of Burrard Inlet, increasing from 300,000 to 890,000. It was another massive moment in Canadian history on the environment and Indigenous law fronts.
Heyman said the government's action will take two forms - legal and consultative.
But the project has become entangled in an array of issues and ideals: access to tidewater, future oilsands development, environmental oversight and Indigenous consultations.
"The UNDRIP is not part of that test. I think the courts would look unfavorably on any government using the duty to consult as a foil, particularly if significant third party rights are involved".
Also encouraging is that Kinder Morgan say they aren't going anywhere.
"The company has been telling investors and the media for quite awhile now that construction would start September 1st, and it's now clear that that will not be happening", Stand.earth energy and climate campaigner Sven Biggs said in a news release.
"In the B.C. Green caucus's view, the National Energy Board process that led to this project's approval was profoundly flawed", Weaver said in a statement. "We will continue to explore every tool possible". Antweiler said. "There's no power drill and no jackhammer".
The fight against the pipeline could be an expensive one, and not just because of the legal costs.
The owner, Texas-based Kinder Morgan, wants to triple shipments of Alberta oil through its system to 890,000 barrels per day.