Why the Trans Mountain fight is over more than just a pipeline

As the government attempts to move forward with the expansion, the issue reveals a crisis around how the Canadian government does consultations, argues Tzeporah Berman.

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October 4, 2018
Protesters in Vancouver hold up metal plates that symbolize broken promises to the First Nations people over Canada's decision to approve Kinder Morgan Inc's pipeline, on November 29, 2016. REUTERS/Ben Nelms

This week, while announcing that former Supreme Court Justice Frank Iacobucci will oversee consultations on the Trans Mountain pipeline with Canada’s Indigenous communities, Natural Resources Minister Amarjeet Sohi said First Nations have a right to oppose the project but that those groups do not have a veto if the government fulfills its “constitutional obligation to consult.”

Prime Minister Justin Trudeau reinforced that approach when he told reporters Wednesday that by not appealing the Federal Court of Appeal decision — which quashed the approval of the pipeline in August — that the government will “get things done quicker,” essentially expediting the process. 

Clearly, the government still doesn’t get it. If it is starting a process by saying there is no “veto” and by looking to expedite construction, then it is acknowledging a decision has already been made.

This is not an open consultation where the government is willing to listen and learn and respect Indigenous views, knowledge and rights. Have we not learned anything from recent events? Is the government not taking into account the massive Court of Appeal victory — on the heels of other major Indigenous court victories such as the Tsilhqot’in and Clyde River cases — and the staunch opposition of many Indigenous nations to the project, along with 19 regional governments, including the City of Vancouver, the City of Burnaby and the Province of British Columbia?

Squamish Councilor Khelsilem’s words shortly after that court victory — which came just one day before the government finalized its $4.5 billion purchase of the pipeline from Kinder Morgan — still ring in my head: “Stop picking fights with Indigenous people, behave honourably, respect us,” he told reporters. “That’s all we’re asking for.”

I still believe that this pipeline will never get built, that the court’s decision was one of the final nails in the coffin. One of the primary reasons it will fail is that the prime minister has not been behaving honourably — something the courts have set out to define. The department of justice, in describing the principles that should guide the government’s relationship with Indigenous peoples, says the “honour of the Crown” should guide its conduct, and that meaningful engagement must aim to secure their “informed consent.”

In this particular case, the court decision was clear on what behaving honourably would look like. Reading it was in many ways a relief. Madam Justice Eleanor Dawson, writing for the three-member panel, listened closely, did her research and reached logical conclusions. Whew. It’s been a long time since we’ve had any of that in this pipeline controversy, and for many of us caught in the maelstrom of bad process and tortured political compromises; it was a breath of fresh air.

And yet, the government saying even before a review is complete on tankers that they are confident the pipeline would go forward, acknowledging that the pipeline decision was a political “trade off,” a deal made before consultation was complete, is anything but honourable. The courts have recognized that as problematic, and this most recent delay may result in financial and process hurdles that are simply too high to cross. 

If Trudeau wants to act honourably, at a minimum, the government must engage in consultation and environmental review without a predetermined outcome. Why isn’t the cancellation of the pipeline even an option still on the table? Can a government who is now the owner of the company do an objective review of this project?

It remains unclear whether the review process now in this case can be honourable, but there is no question that there are lessons learned here for other energy and infrastructure project reviews in the future. Acting honourably should mean keeping election promises and, in the era of reconciliation and climate change, doesn’t it mean defining “national interest” in a new way that addresses these critical issues?

In order to understand how we can now move forward, it’s important to remember how we got here, so we don’t make the same mistakes again.

A broken process, and many broken promises

The pipeline proposal has been a real rollercoaster. Kinder Morgan first proposed the project in 2013 and was subject to a review process that was designed after then-Prime Minster Stephen Harper’s controversial changes to environmental laws and processes that attempted to fast track approval, limit public participation and narrow the scope of review. Documents later revealed that many of these changes were made at the request of the pipeline and oil industry.

During the election campaign, Trudeau criticized the Harper government as having “chosen to be a cheerleader instead of a referee” and called the process “broken,” promising to fix it with a new, robust process.  

The National Energy Board (NEB) recommended in a May 2016 report that the project go forward. Trudeau, by then prime minister, had just days before created a new ministerial panel to review the project, given concerns about the NEB process. It was a band-aid add-on to a process Trudeau himself had condemned.

"During the election campaign, Trudeau called the process “broken,” promising to fix it."

The ministerial panel submitted its report on Nov. 1, 2016, citing major concerns that had already been raised by Indigenous groups, municipal officials and scientists. The panel identified six major questions that, it said, “remain unanswered.” The federal government approved the project 28 days later without answering any of those questions or making any attempt to address the concerns raised during the panel.

In an interview with reporter Sandy Garossino earlier this year, Trudeau admitted that the Trans Mountain pipeline decision was made long before the consultation was concluded, as it was “always a trade off” for Alberta Premier Rachel Notley’s support for a federal climate plan.

An April investigation by the National Observer revealed that bureaucratic staff in the government had been told to “to give cabinet a legally-sound basis to say ‘yes’” even while Indigenous consultation and scientific review was still ongoing. 

Well, as we now know, the courts sure didn’t agree with that way of doing things. 

Why the courts quashed the pipeline approval

In August, the Federal Court of Appeal found that there were significant Indigenous and environmental concerns that were not given real consideration and that little, if anything, was done to ensure meaningful accommodation or mitigation measures.

The court exposed Canada’s political system as broken, and in so doing pulled back the curtain on the flimsy claims of truth and reconciliation with Indigenous peoples. We cannot claim to be committed to reconciliation if the government only abides by the Constitution when forced by the courts. Where is reconciliation if justice only comes to First Nations that can raise millions of dollars for lawyers? 

The court decision found that: “Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.”

When it comes to the environment, the outlook is similarly bleak. The expansion project would increase the overall capacity of the existing pipeline from 300,000 barrels per day to 890,000, resulting in a “seven-fold increase in the number of oil tankers coming and going,” as The Globe and Mail reports.

The Tsleil-Waututh First Nation, Living Oceans Society and Raincoast Conservation Foundation all argued in court that the NEB violated the Canadian Environmental Assessment Act, 2012 by not including the impacts of all this added marine shipping.  Raincoast and Living Oceans also argued that the board failed to meet the requirements of the Species at Risk Act.

The court decision also found that: “The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.”

So what would happen if the NEB actually took into consideration the impact of all those oil tankers on Canada’s endangered orca population? In its May 2016 report, the NEB noted that the oil tankers from the expansion were “likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals.”

"It’s not about tallying up a majority. Quite the opposite — human rights protect the minority."

The federal government has denied that the project represents significant risks to our oceans and whales and has downplayed Indigenous concerns by continually referring to the Indigenous leaders that have supported the decision, instead of the many more who are opposed and affected by this case.    

In consultation reports submitted to the federal government, Kinder Morgan in fact initially identified 140 impacted First Nations. Later, the federal government, Kinder Morgan and the oil industry started defining impacted First Nations narrowly as those directly along the pipeline route in order to fudge the numbers. In so doing they once again attempted to silence and make invisible the rights and concerns of many Indigenous nations. 

Regardless of the numbers, Indigenous rights — which include use of their territories to hunt and fish, to traditional foods and to clean water — are human rights, and you don’t get to support the rights of just some humans. Many, if not the majority, of the First Nations impacted by the project oppose it, but that’s not the point of human rights. It’s not about tallying up a majority. Quite the opposite — human rights protect the minority. Each nation must be consulted and their concerns must be taken into consideration and addressed. If the concerns cannot be mitigated and Indigenous rights would be violated, a project cannot go forward. This is not about a veto, it’s about redefining “national interest” and therefore project approval in the era of reconciliation.

So, what’s next?

In the weeks since the court decision there have been many pundits and politicians claiming that it is unclear what adequate consultation looks like. They clearly haven’t read the decision. Madam Justice Dawson reviews many related decisions and concludes that it is quite evident that adequate consultation is not just taking notes and reporting back to Ottawa but requires a meaningful dialogue to identify, consider and address the potential adverse impacts of a proposed project on Indigenous and treaty rights.

The question now is whether there will be further attempts to minimize or ignore concerns while this project is pushed forward, or whether the Canadian government will actually begin to redefine “national interestto include Indigenous nations and perspectives. 

It is no coincidence that across North America the major environmental battles are being fought with Indigenous leaders calling themselves “water protectors.” From Standing Rock to Kinder Morgan to fracking on the East coast, it is Indigenous leaders who are issuing the clarion call for a cleaner, safer definition of economic development that takes into consideration the health of our water and climate. Perhaps it is time to reconsider the limited definitions of “national interest” that prioritizes short-term economic gain from finite and polluting resources and listen to Indigenous nations who define their rights by their access to functioning ecosystems and clean air to breathe and water to drink.

China, India, the Netherlands, the UK and France have committed to banning or phasing out fossil fuel cars and some of the fastest growing industries worldwide are digital and clean tech. Prioritizing economic development that respects the limits of functioning ecosystems and respects Indigenous rights is within our grasp, but only if we put as much energy into new processes and proposals as we have into the multiple failed oil sands pipelines that are polarizing this country.

What is clear is that this fight is about much more than a pipeline. It is a fight about integrity, honour and rights. It is a fight about whether we live in a democracy in which our elected decision makers will hear this court’s rulings and reflect on what needs to be done to reform the system — to ensure that, in this moment in history, we are learning and adapting.

It is also clearly about whether or not Canada will lead in defining a path forward on critical international commitments such as the Paris climate accord and the United Nations Declaration on the Rights of Indigenous Peoples.

"It is a fight about whether... our elected decision makers reflect on what needs to be done to reform the system — to ensure that we are learning and adapting."

The Trudeau government differentiated itself from the Conservatives in the last election by pledging its commitment to both, and in fact signed both commitments quickly after being elected. Yet the federal Pan-Canadian Framework on Clean Growth and Climate Change is still too watered down to meet even the Harper government’s weak emissions reductions targets, in part because of growing emissions from the oil sands. Numerous studies have shown that the Trans Mountain pipeline expansion project would facilitate a significant growth in emissions at a time when we need to be doing everything we can to reduce emissions.

Ironically, the Trudeau government’s continued push to build the pipeline is being justified in part as a political compromise with Alberta — it supports the climate plan and in return it gets a pipeline. But the math doesn’t work. Canada simply cannot continue to grow emissions from oil and gas development and be on track for its long-term commitment of 80 percent reduction of emissions by 2050.

Further, it is very likely that this whole saga will have political consequences. Hundreds of citizens including members of parliamentIndigenous leaders, business leaders, scientists, authors, union leaders and former pipeline engineers have all been arrested protesting the pipeline, and more recently members of Trudeau’s own youth council and members of the Order of Canada have all condemned the pipeline approval and buyout.

The country needs a plan for the phasing out of fossil fuels. The sooner it faces that this means reducing production, the sooner we can create plans and processes that ensure a just transition for workers and their families.  

Having lived through unprecedented wildfires and floods this year, it seems more important than ever that Canadians come together in common purpose, that we create processes that prioritize a safe climate and resilient communities.

After reading many of the Indigenous submissions to the courts and having the honour of working with many Indigenous leaders on the frontlines of this fight, I have no doubt that if Canada could actually create a process that listened and collaborated with Indigenous nations to define the road ahead, it would benefit from the knowledge and ideas of these remarkable and strong people.

Last month, Sohi said the government would be announcing its “path forward in a few days, in a short, expedited way of getting this project back on track.”

A short, expedited process that ignores the impacts of tankers and defines consultation as barely listening instead of taking the time to engage, learn and find solutions is exactly why the court quashed the project license in the first place.

There are no easy answers here, but what is clear is that acting honourably requires processes that do not have predetermined outcomes, that include Indigenous rights and include real dialogue and accommodation. It also means redefining “national interest” in project decisions to prioritize the result of true consultation and the promises that have been made for a swift transition to a low-carbon economy and a safe climate. What seems clear is that the Trudeau government needs to stop playing politics and realize that we simply cannot build tomorrow’s economy by repeating yesterday’s mistakes.