Reinvigorate democracy

BC Legislature with fountain

Whatever Voting Systems Wins, BC Needs to Make Politicians More Accountable

As long as parties tightly control elected members, democracy is thwarted.

As you consider how to vote in British Columbia’s electoral reform referendum, don’t assume that either keeping the way we elect politicians in B.C., or changing it, will guarantee a more responsive government. Dec. 1, 2018, the day after ballots are due, should be the beginning of a wider conversation about how to make this province more democratic.

It starts with politicians being truly accountable to their constituents.

What most people are yearning for is not merely a fairer distribution of seats in our legislature. People want to feel that whoever they elect will stand up for them and defend their interests. Currently, my elected representative is supposed to act for me and my neighbours as laws are debated, since we can’t all show up every day in Ottawa or Victoria or at city hall to give a thumbs up or down to important decisions.

But as we all know, that seldom happens. Party interests generally override constituents’ interests, and party policy is largely decided by the party leader and his or her inner circle.

Between elections, citizens are left out of this process and subjected to partisan, “party first” rhetoric by elected leaders. While vigorous debate is part of a healthy democracy, the finger-pointing, personal attacks and “my team good, your team bad” nature of our politics is alienating voters.

Simply reshuffling the chairs won’t fix the problem if we leave in place numerous ways party leaders control their MLAs. These include party fundraising rules, the absence of independent staff on legislative committees, impossible recall thresholds, and the party leader’s role in nomination races. The most powerful weapon party leaders wield is called whipping.

It is extremely rare in this province for MLAs to vote independently from their party. That’s because they face punishment if they do. As former investigative journalist Sean Holman pointed out in his must-see documentary “Whipped,” the secretive party-discipline rules that “whip” votes along party lines have transformed Canadian politicians into “trained seals” following their leader.

One former MLA told me how his party changed his password to deny him access to the internal party member and donor database in the lead-up to an election as punishment for not towing the party line.

The controversy surrounding the recent leaked NDP “gag order” that would prevent NDP caucus members “from publicly criticizing the decisions of Premier John Horgan’s government” just codifies decades-old informal rules for most parties. The Green party claims not to whip votes, but the voting records of their three-person caucus are virtually identical. We’ll see if their “no-whipping” policy survives an expanded Green party caucus.

Whipping insures legislators stick within their parties rather than work across the aisle with other members to solve problems jointly. Might PR systems increase the likelihood of minority governments, forcing parties to work together? Yes. However, all proportional systems proposed in B.C.’s referendum have to top up the number of seats for parties under-represented in the direct vote. How these top-up seats are allocated has a dramatic impact on accountability. The top-up options will be determined by a legislative committee if the referendum passes.

Even if the legislative committee decides not to use party derived “closed” lists, parties can still influence the makeup of top-up lists. As a result, the dictator-like power our Westminster-system gives party leaders over MLAs will persist.

By policing internal challenges to their power, political parties paradoxically erode their authority. When pollsters ask Canadians to rank how much they trust various institutions — governments, industries, professions, charities, non-profits, religious organizations, universities, news organizations — political parties always come out at the bottom of the list.

Globally, people generally trust actual people more than institutions. Polls show young people trust younger people, older trust older, ethnic voters trust ethnic representatives. These trends hold in British Columbia.

It raises a question (perhaps to be decided by some future referendum): If we want to adjust seat counts to ensure they are proportional, perhaps we should recalculate around traits people actually care about — age, gender and ethnicity — not political party. After the Vancouver election resulted in all Asian candidates being defeated despite 45 per cent of the population being Asian, imagine a legislature that is proportionalized to reflect the real ratios of Asians, First Nations or women.

In the meantime, here are some other ways to change B.C.’s legislative process to make politicians more accountable to the people who elected them:

  • Develop new rules to allow MLAs more free votes and limit whipping;
  • Strengthen the role of constituency associations in choosing candidates and reduce the power of parties and their leaders to exclude candidates;
  • Democratize power of MLAs to choose their caucus chairs;
  • Empower caucus to review and remove the party leader, and elect interim leader;
  • Codify rules for how MLAs can be expelled from and re-admitted to caucus;
  • Increase the signature requirements on candidate’s applications — and require candidates to personally witness each signature — in order to force candidates to demonstrate wider local support before election; and
  • Enhance resources and financial support for all MLAs, particularly independent MLAs.

Constituents’ ability to recall an unaccountable MLA must also be strengthened. While recalling an MLA should be a difficult task, as a last resort it must be attainable by co-ordinated volunteer effort. Recent reforms to improve disclosure and transparency requirements and ban union and corporate money in recall campaigns are advances. However, the $5,000 third party spending limit and the 60-day timeline make it a mountain too high.

This piece isn’t meant to cool anyone’s desire to cast a vote in the current referendum. Whichever choice wins, however, there is still a lot of work required to get the accountable MLAs and accountable government we need and deserve.

Rachel Notley at Board of Trade

Kinder Morgan and the “rule of law”

Part one in a two-part series on whether arguments for the pipeline expansion are based on actual respect for legal procedure.

I can’t believe I’m writing this, but it appears that our New Age prime minister has embraced the post-truth era quicker than anyone could have imagined. Quite simply, he is imitating U.S. President Donald Trump in his handling of Kinder Morgan: tell a big lie­­ and repeat it frequently. Attack any opponents as anti-prosperity, and their words as “fake news.” Unfortunately for Canadian democracy, the cynical “big lie” propaganda technique is now becoming the go-to-procedure in Ottawa for all things Kinder Morgan.

Building on a few other whoppers — Kinder Morgan will lower gas prices, Canada needs new tar sands pipelines in order to address global warming, Justin Trudeau’s promise to ensure a renewed, nation-to-nation relationship with First Nations —we now discover the biggest lie of all: Trudeau cites the “rule of law” in support of his claim that his government’s Kinder Morgan approval was a science-based decision made after carefully weighing all the evidence. Credible reports based on newly available documents and government staff whistle-blower accounts indicate that Trudeau’s approval of Kinder Morgan was purely political, and worse, “rigged.”

Not surprisingly, the pro–Kinder Morgan crowd that has been attacking the B.C. government and other opponents with “rule of law” arguments has been silent in response to these rigging allegations. If they really cared about the procedural fairness that Canadian laws are founded on, they should be the ones calling most loudly for a thorough investigation of the federal approval process (more on the new evidence of improper process later).

Instead, Trudeau’s Finance Minister Bill Morneau once again trotted out the “rule of law” argument to justify his scheme to indemnify Kinder Morgan from all risk using taxpayer money. Morneau said, “As a government we need to ensure that the rule of law is respected and that investors have the certainty needed to complete the Trans Mountain expansion project because it’s in the national interest to do so.”

Alberta’s Premier Rachel Notley, who in what might go down as the biggest political blunder in decades allowed Kinder Morgan to become the litmus test for the success of her government,  has the biggest serial spewer of “rule of law” blarney, doubling down almost daily with misguided references to support her threats to ban wine sales and cut off B.C.’s oil supply. This week she referenced it once again to justify her decision to skip the recent first ministers meeting in the Yukon.

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Alberta Premier Rachel Notley’s tweet this week. Screen grab from Twitter.

The hypocrisy of the “rule of law” crowd has a long history in British Columbia’s oil tanker and pipeline struggles. Not so many years ago when Stephen Harper was ruling the roost in Ottawa, we began to the hear the “rule of law” touted in support of Enbridge’s proposal to bisect British Columbia with a pipeline to Kitimat, where bitumen would be pumped into oil tankers for export to China. Pro-Enbridge cheerleaders touted the National Energy Board’s recommendation and the Harper cabinet’s approval. “The issue is already decided, they said, “opponents are ‘radicals’ threatening the economy and Canadian democracy.”

As then, so today. Until the new allegations of NEB rigging surfaced, Kinder Morgan’s promoters often referred to the “rule of law” as their rationale for moving ahead quickly with the Texas company’s controversial oil tanker-pipeline proposal.

But what exactly do they mean?

The dictionary defines the rule of law as: “the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.”

Canada is not a dictatorship. Just because some handpicked board rubber-stamps something, or princely Trudeau (or the bully Harper before him) wants something, it doesn’t mean we all have to march in step to make it so.

What Harper, Trudeau and the pro-oil sycophants ignore is the fact that the Canadian system of law depends on the complex interplay of a wide range of institutions: police; courts; political parties; non-partisan civil servants; independent regulators; and legislatures. Each of these institutions must be perceived as genuinely independent and not beholden to private interests. They each must be impartial, loyal to the broader public interest and obedient to the rule of law.

The NEB recommendation and cabinet approval are just two steps in a process to ensure the rule of law is upheld. Enbridge’s now-defunct west coast oil-port proposal provides a cautionary tale of thinking otherwise. Like Kinder Morgan’s controversial proposed oil port expansion in Burnaby, Enbridge garnered a positive NEB recommendation (with conditions); it received both federal and provincial environmental assessment certificates, and then it got the thumbs up from cabinet in Ottawa. On the surface, it all seemed proper. Yet two separate courts ultimately struck down these recommendations and approvals. The courts determined the processes were fundamentally unfair because they failed to uphold government’s constitutional obligations to First Nations. The true rule of law — not the conveniently fictional one that Harper and the oil industry cited — eventually prevailed in the courts, thereby killing Enbridge’s proposal.

Kinder Morgan the latest “rule of law” sham

A similar scenario is smoldering with Kinder Morgan. Once again, promoters — citing the rule of law — are predicting the sky is falling and the economy will collapse if Kinder Morgan doesn’t go through. They claim the proposal has been over-scrutinized. Their refrain can be summarized as: “Enough already!” Their references to the rule of law should be translated to what they truly mean: “Shut up, get out of the way, and let us get on with what is really important: making lots of money.”

Trudeau and his cabinet claim, as Harperites did with Enbridge, that the “federal review of the Trans Mountain expansion was the most exhaustive in the history of pipelines in Canada.” But in determining whether the rule of law is being upheld, our legal system looks at the quality of the process, not just the quantity. Upon closer legal examination Enbridge failed this test, and, given the similarities, there are strong reasons to believe Kinder Morgan will fail as well.

The shortcuts and flaws in the NEB review of Kinder Morgan are well known. The Trans Mountain NEB review is haunted by the exclusion of many affected people and groups, the limited terms of reference, the lack of cross-examination to test the evidence Kinder Morgan submitted, the exclusion of relevant evidence (such as scientific studies concluding bitumen sinks if spilled), the expedited hearing schedule and conflicts of interest.

Even Trudeau and the Liberal Party of Canada (before they came to power) admitted the NEB’s review of Kinder Morgan was fundamentally flawed. Much has been made about then-candidate Trudeau’s statements that Kinder Morgan would not be approved, and the review would be redone if he became prime minister. However, a more damaging statement has been overlooked: the follow-up letter by Anne Gainey, then president of the Liberal Party of Canada, wrote just before the election responding to questions put to Trudeau about his statements. Gainey wrote: “regarding the Liberal Party of Canada’s position on the Kinder Morgan Pipeline. As you are aware, Justin Trudeau and the Liberal Party of Canada have serious concerns with the process surrounding the approval of this pipeline. We cannot support the pipeline in its current form because the Conservatives have not ensured environmental, community or stakeholder consent. We agree with what you, and Canadians across the country, have been saying for a long time: Canada’s environmental assessment process is broken.”

Trudeau and the Liberal Party’s pre-election criticisms of the NEB review process was not unique; they were shared by virtually everyone — First Nations, municipalities, scientists, and property owners — who voiced concerns about the proposal. Concerns about the NEB’s Kinder Morgan review being rigged surfaced even then.

It is also worth noting that the NEB’s review of Enbridge — although ultimately determined to be fundamentally flawed by the courts — was much more thorough than their review of Kinder Morgan. Affected people, organizations, witnesses and evidence, excluded in the NEB review in Kinder Morgan, were permitted in Enbridge’s review, and the Enbridge process was not artificially truncated by Harper’s later gutting of environmental laws in 2012. That gutting occurred before the Kinder Morgan review.

Natural Resources Minister Jim Carr appointed an ad-hoc ministerial panel to make it appear Trudeau’s government was fulfilling its election promise to “redo the review.” The panel’s controversial make-it-up-as-you-go-along meetings were haunted by serious conflict of interest issues. Yet despite all its problems the ministerial panel surprised everyone and recommended that the Trans Mountain pipeline proposal not proceed without a serious reassessment of its impacts on climate change commitments, Indigenous rights and marine mammal safety. Trudeau and his cabinet gave the project the thumbs up just over three weeks later without addressing any of their own panel’s recommendations.

New evidence of “rigged process

If Trudeau’s false promises weren’t enough to threaten the legitimacy of the federal Trans Mountain approval process, we are now hearing credible reports — with documents and several government staff whistle-blowers — describing how Trudeau’s government instructed staff to put their thumb on the scale of justice. Reportedly, Erin O’Gorman — the then-associate deputy minister of the major projects management office — was instructed to “find a way to approve Kinder Morgan. O’Gorman then reportedly told various departments to do just that. In other words, it appears Trudeau betrayed not only his “Sunny Ways” promises, but violated a host of laws by predetermining the Kinder Morgan approval before all the evidence was in, or consultations with affected First Nation were completed.

As biased as the federal process was, the provincial approval process was arguably worse. Back in 2010 while Gordon Campbell was B.C.’s premier, his government signed an equivalency agreement with Ottawa that allowed an NEB review of major proposals like Kinder Morgan to substitute for the provincial assessment. In 2016 the B.C. Supreme Court accepted the Gitga’at/Coastal First Nations argument that the B.C. government acted improperly when it abdicated to Ottawa its responsibility for assessing the environmental impact of the proposed Northern Gateway pipeline. The court declared the environmental assessment certificate invalid.

This created serious problems for Kinder Morgan, which was also covered by the equivalency agreement. Then-Premier Christy Clark’s lawyers condemned the truncated NEB review of Kinder Morgan. Ultimately, her government officially opposed Trans Mountain, citing concerns about oil spills. Although no new evidence was introduced, the Clark government later flip-flopped and endorsed Trans Mountain after secret negotiations with Ottawa. Rumours abound that Clark’s flip-flop was payback for securing Trudeau’s approval of both Site C and Petronas’s now-defunct Pacific Northwest LNG export proposal near Prince Rupert.

But Clark’s flip-flop opened the door to another challenge by First Nations of British Columbia’s abdication of provincial review due to the equivalency agreement. As with the recent allegations of rigging of federal approval, some B.C. government employees allege that Clark’s government instructed staff to expedite a “Gitga’at–proof” provincial review of Kinder Morgan. Instead of initiating a rigorous process, as a shortcut, the B.C. reviewers accepted all the evidence Kinder Morgan had submitted to the NEB — evidence the province’s own lawyers had previously criticized as inadequate during the NEB review — and deemed that evidence as satisfying their obligation to conduct an independent provincial review. Some public servants objected and reportedly were taken off the file. After a few cursory meetings with affected First Nations, Clark’s government granted the provincial environmental assessment certificate.

Talk about an epic rubberstamp.

Who’s really afraid of the rule of law?

Ironically, when all the evidence is in, it is Kinder Morgan’s cheerleaders, not opponents, that actually are undermining the rule of law. Their get-an-approval-by-any-means-necessary approach — by rigging review processes, ignoring conflicts of interest, trying to pre-empt review by courts, generally putting their thumb on the scales of justice, and using “big lie” propaganda techniques — is the real threat to the rule of law.

But luckily the rule of law doesn’t just include politicians, legislatures, ministers and the courts. Citizens have a critical role to play as well. More on that in part two.

John Horgan

BC Needs To Use Full Toolbox to Stop Kinder Morgan

The government wins on tone but falls short on putting constitutional obligations to First Nations up front.

From the outraged hyperbole frothing from the lips of pro-Kinder Morgan supporters, you would think Premier John Horgan had flipped the Queen the bird with his campaign pledge to “use all the tools in the toolbox to stop” Kinder Morgan’s controversial oil tanker-pipeline proposal.

Just as Albertans expected their political leaders to fight back when Trudeau-the-dad tried to force his National Energy Plan on them in 1980, British Columbians expect our premier to fight to protect our province from bullies from across the Rockies trying to bisect British Columbia with an unwanted pipeline to deliver toxic bitumen to Burnaby for export on oil tankers.

The blowback against Trudeau Sr. changed Canadian politics for a generation. The “West Wants In” grassroots groundswell led to the creation of the Reform party, and the subsequent merged Conservatives led to Stephen Harper’s decade in power. A comparable political shift awaits if Trudeau-the-son keeps on huffing and puffing to force an unwanted proposal on our unwilling province (and let’s not forget unwilling municipalities and First Nations — but more on that later).

The pro-Kinder Morgan arguments about paramountcy, and the rule of law consume headlines, but there has been little analysis of whether Premier Horgan and his government colleagues have been fulfilling their pledge. Are all the tools in the provincial toolbox being used? What are these tools? And how effectively are they being deployed?

The escalating war of words

Horgan and Environment Minister George Hayman both deserve top marks in the verbal squabble with Alberta and Ottawa. While Alberta Premier Rachel Notley and our New Age Prime Minister appear anxious, aggressive and increasingly desperate with their multiple threats, both of B.C.’s main spokespeople on all things Kinder Morgan have appeared unflustered, undeterred and reasonable. Horgan and Heyman may be overwhelmed on the volume of hyperbole, but on substance and tone they win hands down.

Horgan’s strong performance is welcome news to anti-pipeline warriors who have been nervous because of Horgan’s uneven resolve before he formed government. Remember back to the day, after then-NDP leader Adrian Dix’s unexpected 2013 Earth Day announcement of opposition to Kinder Morgan, when Horgan knee-capped his boss by infamously speculating that the oil port could perhaps be moved to Deltaport or Fraser Surrey Docks. Perhaps personally witnessing the devastation of the tugboat Nathan E. Stewart oil spill in Bella Bella was the epiphany that strengthened his resolve on Kinder Morgan.

“No Tankers” supporters might still wish their B.C. representatives rattled their sabres more aggressively, but remember, in politics (well, in Canadian politics), the person that convinces people that they are the most reasonable usually wins. Avoiding unnecessarily aggressive language is also smart legally as many watching the controversy believe Kinder Morgan’s endgame is not to build its pipeline, but to position itself for a massive damages claim under the investor-state provisions (Chapter 11) of NAFTA.

In the legal arena

In the Kinder Morgan legal tug-of-war, British Columbia’s decision to refer the jurisdictional question to the courts was a master stroke though concerns about the timing remain. Some legal experts believe B.C. should have waited and not reacted to Kinder Morgan’s made-up May 31 deadline to walk away from the project. Trudeau and Notley screwed up by not accepting Horgan’s offer to join in the reference.

Left on its own, B.C. can now craft the legal question any way it chooses. It will likely go something like this: is there any formulation of provincial laws whereby British Columbia can regulate the health and safety aspects of the transport of bitumen through the province?

With a broad question like that, the answer from the court is obvious: “Of course, B.C. can.” Given the Supreme Court of Canada’s recent ruling upholding New Brunswick’s right to restrict Quebec beer being transported into the province, it’s hard to imagine the court ruling against British Columbia when it comes to toxic bitumen. Remember, health and safety are clearly under provincial jurisdiction in our Constitution.

While Trudeau, Notley and other Kinder Morgan cheerleaders cite the Constitution for their claim that B.C. has no jurisdiction over interprovincial pipelines, Canadian courts have been much less categorical about paramountcy (the doctrine that federal law automatically prevails when there is a conflict between provincial and federal laws).

Despite Trudeau and Notley’s huffing and puffing, the Supreme Court has rejected the notion that jurisdiction is siloed into separate watertight compartments. Our courts have made it clear that businesses operating in federal fields must also comply with provincial laws. The Supreme Court has called this “first general constitutional principle” and said finding otherwise “would create serious uncertainty.”

Our courts have consistently ruled that related provincial and federal laws can and will overlap and coexist. In the Supreme Court of Canada’s Tsilhqot’in decision (para 148) they said: “Interjurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality. Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes. The two levels of government possess differing tools, capacities, and expertise, and the more flexible double aspect and paramountcy doctrines are alive to this reality: under these doctrines, jurisdictional cooperation is encouraged up until the point when actual conflict arises and must be resolved. Interjurisdictional immunity, by contrast, may thwart such productive cooperation.”

Despite how the pundits are trying to frame the issue, this is not primarily a federal-provincial dispute. The most important legal conundrum of the Kinder Morgan struggle is how Aboriginal rights and title (or jurisdiction) provides a check on unilateral federal and provincial powers. No one foreshadowed this better than Green Party leader Andrew Weaver when he suggested, “Notley ought to have a look at section 35 of our Constitution” in response to a question about how the newly announced NDP-Green alliance intended to stop Kinder Morgan. Section 35 recognizes and affirms the Aboriginal and treaty rights of Canada’s Indigenous peoples. Section 35 imposes specific obligations on both the provinces and federal governments to engage Aboriginal peoples who will be adversely affected by a proposed government action (for example, an oil port or pipeline).

Section 35 further complicates the balancing of interests the courts will inevitably seek in resolving the jurisdictional issue. Canadian courts have never considered the impact constitutionally protected First Nations title and rights have on the balancing in provincial and federal standoffs. First Nations’ jurisdiction is a true wild card.

While British Columbia’s reference of the jurisdictional issue was a smart move, it might not have maximized the impact of other legal tools, specifically using B.C.’s constitutionally imposed obligations to consult and accommodate First Nations as both a sword and a shield.

Although resetting and transforming the relationship with First Nations is a “foundational piece” of the power sharing agreement between the NDP and Green Party, the government has not kept this commitment at the centre of its responses to Kinder Morgan.

British Columbia’s mixed approach

The appointment of Thomas Berger to represent British Columbia as outside counsel on Kinder Morgan was applauded, but many of the subsequent choices have been ill considered. B.C.’s most egregious misstep was the decision to stand behind the evidence introduced by the previous Christy Clark government in the Squamish Nation’s challenge of the province’s Kinder Morgan approval. Ironically, while it is fighting off the big bad wolves from the other side of the Rockies, in the B.C. Supreme Court Horgan’s government defended the conclusion of the Clark government that Kinder Morgan would not have significant environmental impacts and that obligations to the Squamish had been fulfilled. Horgan’s government defended Clark’s approval despite knowing there were bureaucrats who were pulled off the Kinder Morgan file by the Clark government because they objected to the way First Nation and Squamish concerns were being ignored.

Berger could have easily gathered this evidence and filed it in the Squamish case. An affidavit from one of these government officials attesting to the inadequacies of Clark’s approval would have gone a long way to helping the Squamish quash Kinder Morgan’s environmental certificate, thus killing the proposal. Instead Horgan’s government decided to defend Clark’s approval, arguing it was obligated to because constitutional convention and the “honour of the Crown demands that B.C. defend its actions.” Filing a revised factual record that more accurately reflects what happened would uphold the Crown’s honour, not undermine it.

The B.C. government also seems to have lost sight of resetting the relationship with First Nations when reviewing the 1,187 provincial permits Kinder Morgan requires. It has committed to reviewing and reconciling laws and policies with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Supreme Court’s Tsilhqot’in decision. This is no easy task; it will take time.

In the meantime, the government could implement the spirit and intent of its commitment in the power sharing agreement by instructing the staff reviewing Kinder Morgan’s permits to bend over backwards to engage affected First Nations on any issue, even if they tangentially involved. This doesn’t appear to have happened.

The controversy around Kinder Morgan is unlikely to go away anytime soon. While it roils, it is taking up a lot of political bandwidth in Victoria and Ottawa while distracting from other important work.

It is in the British Columbia government’s interest to make it go away as quickly as possible. So, while Horgan’s government has used most of the tools available to it, it has not always deployed them as effectively as possible.

As the battle heats up, B.C. must up its game considerably, particularly in using its commitment to transform relations with First Nations not just as a shield, but also as a sword.

Failure is not an option on this file. The consequences of messing up, both for the future of our magnificent coast, and for the NDP’s prospects of remaining government, couldn’t be more connected.

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