Kinder Morgan | Will Horter

Kinder Morgan protest sign - Resistance becomes duty

Kinder Morgan and the Power of Civil Resistance

Redefine Citizenship / May 27, 2018 / civil resistance, Kinder Morgan

Citizens can shine a spotlight on bad laws or draconian consequences. Second of two parts.

Canadians are a law-abiding people. Unlike our southern neighbours, our mythology isn’t filled with scandalous rogues who operate at the edges, or outside, the law. Who are the Canadian equivalents to Jesse James, Al Capone or Bonnie and Clyde? Frankly, I can’t think of a single one.

The same is true with modern Canadian politicians. Is there a Canadian equivalent to Richard Nixon, Spiro Agnew, or Huey Long? No one jumps out. With the exception of the Ford brothers, Canadian history isn’t filled with rogue politicians who flout the law. That is, until Kinder Morgan came along.

Canada has become a petro state. It is time we come to grips with this as a nation. We have a litany of examples of both provincial and federal politicians playing fast and loose with the rules to force an unwilling oil tanker pipeline project on an unwilling province.

How far will they go? Pretty far!

Harper gutted environmental laws, illegally spied on groups opposing oil and gas projects, and tried to demonize opponents by calling them foreign radicals.

A succession of Alberta premiers have huffed and puffed until Rachel Notley crossed the line by proposing to impose illegal trade restrictions on exported oil and imported B.C. wine. Justin Trudeau lied about Kinder Morgan to win votes in B.C., only to betray his commitments once in power as prime minister. Now we learn of evidence that Trudeau’s government threw the rule of law out the window and rigged the process to fast track and guarantee Kinder Morgan’s approval. What’s clear is this: politicians have cynically pontificated about the “rule of law” while bending the rules to force Kinder Morgan through.

Many Canadians have bought the propaganda — but in British Columbia? Not so much.

Why is the rule of law so important? Because it’s the fundamental building block of democracy. But democracy is fragile, and its long-term health depends on the complex interplay and integrity of a wide range of institutions: police; courts; political parties; non-partisan civil servants; independent regulators; and legislatures — all who seek justice and pursue truth wherever the evidence may lead. Each of these institutions must be perceived as genuinely independent and not beholden to private interests. They each must be impartial, loyal to the public interest, and obedient to the rule of law. They not only enforce rules; they must follow those rules themselves.

That clearly hasn’t been the case with Kinder Morgan. Luckily the rule of law does not just belong to the realm of politicians, legislatures, ministers and the courts; citizens have a role to play as well.

In Canada’s western-most province, the aggressive language and underhanded tactics from the eastern side of the Rockies are inspiring an unprecedented number of British Columbians to step out of their comfort zone and stand together against an unjust process.

While politicians and pundits pontificate, people are organizing. Whether they are concerned about runaway global warming, Indigenous rights, oil spills, or the inherent right of people to decide their own future, British Columbians are coming together to ensure Trans Mountain never gets built.

What the people of British Columbia know is that, if all else fails, as law-abiding citizens they can resort to civil disobedience — or, as I prefer, “civil resistance.” Anyone with a marginal understanding of history knows civil resistance is a critical political tool.

The power of civil resistance lies in the debate it generates about the law and the moral justification of violating it. By defying a societal norm, and being willing to suffer the consequences, citizens shine a spotlight on bad laws or draconian consequences and seek to bring them into disrepute while catalyzing others to stand against them.

Civil resistance, when properly employed, is not a publicity stunt; it is a solemn act of citizenship. It has a distinguished history. That history tells us that engaging in civil resistance is in fact a celebration of the “rule of law.”

To be effective, civil resistance cannot be engaged in lightly. It has to be widely perceived as a “reasonable” response, undertaken only after exhausting all other options.

Ironically, the patently unfair federal and provincial processes behind the Kinder Morgan rubber-stamp, combined with the recent bully tactics from Alberta and Ottawa, are convincing tens of thousands of concerned British Columbians (as well as climate and Indigenous activists from around the world) that civil resistance is the only reasonable response to an ongoing injustice. People outraged by these injustices are worried that their provincial government may not have strong enough tools to defend British Columbia’s interests from out-of-province bullies, but despite this, they are willing to risk arrest to stand up for their province, Indigenous rights, and the climate.

Canadians generally don’t like conflict. But when they see a wrong that goes to the core of their values, they will stand up for what they see as right. If we have learned anything from the No Tankers struggle over the last decade, it’s that the more British Columbians learn about any particular oil export proposal, the more likely they are to oppose it. The same seems to be happening with the Kinder Morgan pipeline: the people who are standing against the pipeline do not see themselves as law-breakers; they see themselves as defenders of their most cherished values, including the rule of law. They are holding government to account.

The Grand Canyon–sized gap between the aggressive pro-pipeline rhetoric and the reality is fuelling increased outrage from concerned citizens opposed to Kinder Morgan. It is pushing increasing numbers of people to the blockade. As of now, around 200 protesters have been arrested and reportedly more than 20,000 people have pledged to join them.

From the outraged hyperbole frothing from Alberta and Ottawa, you would think these Coast Protectors were black-masked anarchists wielding Molotov cocktails, not the clergy, scientists, grandparents, and elders singing and praying for reconciliation while being arrested. These protectors are not going away. They will not be deterred by threats. The massive exercise of state power that will be required to remove them from the gates could change the political landscape for a generation.

Elections are also included in the Canadian democratic system of accountability and laws. History shows that being a pro-pipeline candidate in tidewater ridings in British Columbia is a liability. Stephen Harper’s Conservatives learned this first-hand when they not only ignored — but actively provoked — the groundswell of opposition to the oil tanker-pipeline proposals. The Harperites thought they could bully their way to another majority government in 2015. However, anti-tanker, pro-democracy organizations had something to say about that, actively organizing in tidewater ridings to dramatic effect: Harper’s team lost almost as many votes (82,257) on the west coast as it lost in the rest of Canada combined (85,669).

Trudeau and his Liberal MPs face a similar electoral tsunami. Liberal MPs such as Joyce Murray, Jonathan Wilkinson, Terry Beech, and Jody Wilson-Raybould are particularly vulnerable. To date, they seem more interested in playing follow-their-telegenic-leader than in representing the interests of their constituents. They would be well advised to remember that civil society groups have been organizing in their ridings for years, and have battle-tested their Get Out The Vote machines. Those groups are now working to stop Kinder Morgan, on the ground and at the ballot box.

So, although the mainstream media has largely not connected the dots, to anyone looking closely it should come as no surprise that British Columbians consider Prime Minister Trudeau’s about-face on his pre-election commitments a betrayal of epic proportions. In what appears to be a repetition of Trudeau-the-dad’s maligned National Energy Plan in the 1980s, Trudeau-the-son is going all-in to try and force the unwanted oil tanker pipeline proposal on an unwilling province. He is doing so with new proposed legislation to override provincial health and safety concerns, with billions of dollars in subsidies from taxpayers, and even with threats to call in the military. Nothing appears to be off-limits to Ottawa’s pipeline-evangelizing prince and his minions. I’m surprised Trudeau hasn’t challenged B.C. Premier John Horgan to a winner-take-all boxing match to decide the issue.

Ironically, it is not local protesters who are violating the rule of law. It is Kinder Morgan’s cheerleaders, those who hypocritically pontificate about the rule of law, who actually are undermining it. They do so by trying to pre-empt court challenges, invalidating provincial regulatory processes, and intimidating concerned citizens who are merely exercising their constitutionally protected rights to protest. Those are the actions that threaten the rule of law.

The turmoil will continue until Notley, the oil industry, and Trudeau recognize that there are no shortcuts. British Columbians, municipalities, First Nations, and concerned citizens simply will not accept any oil tanker-pipeline proposals imposed through an unfair process. If British Columbia’s history has taught us anything, all attempts to force Kinder Morgan will continue to be met with stiff and unending resistance.

I’m confident that when it’s all said and done the rule of law will prevail — and that it is unlikely that Kinder Morgan’s pipeline will ever get built.

Kinder Morgan and the Power of Civil Resistance Read More »

Kinder Morgan and the “rule of law”

Reinvigorate Democracy / May 25, 2018 / BC Government, Kinder Morgan, National Energy Board, Trans Mountain

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.

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.

Kinder Morgan and the “rule of law” Read More »

BC Needs To Use Full Toolbox to Stop Kinder Morgan

Reinvigorate Democracy / April 28, 2018 / BC Government, British Columbia, First Nations, John Horgan, Kinder Morgan, Supreme Court

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.

BC Needs To Use Full Toolbox to Stop Kinder Morgan Read More »

It was the best of times, it was the worst of times

Civil Society / June 1, 2017 / Canada Government, elections, Kinder Morgan, Liberal Party, National Energy Board, Trans Mountain

When they walked in front of the cameras with smiles that threatened to crack their faces, my heart fluttered.

As they began talking about a new era of cooperation in British Columbia and their agreement to “use all available tools to stop Kinder Morgan,” Ban Big Money and bring in electoral reform, I almost began to tear up.

The short press conference Andrew Weaver and John Horgan held to announce the details of their historic agreement could change the trajectory of British Columbia history, if not the country, and the world.

But then I remembered the last time I had felt this way.

My mind jumped back to November 13, 2015, the day Trudeau — our newly elected Prime Minister — released his ministerial mandate letters, making public for the first time in Canadian history each minister’s marching orders for the government’s four year term: use fact-based decision making and be transparent.

Among his many promises, most critical to me and many of us in B.C. was this one: “No relationship is more important to me and to Canada than the one with Indigenous peoples. It is time for a renewed, nation-to-nation relationship with Indigenous peoples, based on recognition of rights, respect, co-operation and partnership.”

After 10 years of Harper’s autocratic anti-democratic rule by fiat, the change in tone and form was palpable; it seemed too good to be true — and it was.

The broken promises and betrayals over the last 18 months have confirmed for me that democracy requires eternal vigilance, that politicians are followers not leaders, and that political promises are too easily broken.

All this flashed through my mind as I spent the rest of the day working with colleagues at West Coast Environmental Law to put together a briefing note on the various tools the soon-to-be B.C. government can use to stop Kinder Morgan. Then I went home and turned on CBC’s The National and I started fuming.

The first sound bite was Justin Trudeau in Rome regurgitating his hackneyed talking point of “facts and evidence” This time, he was saying the facts and evidence on Kinder Morgan hadn’t changed despite the change in government, signalling his continued support and intention to push through the pipeline over any British Columbia objections.

Frankly, I almost retched at Trudeau’s hypocrisy. It’s hard to stomach his epic flip-flop on the inadequacy of the NEB’s Kinder Morgan review. The only explanation for his transformation from a hard critic to a cheerleader is political opportunism. There is no other way to reconcile candidate Trudeau’s infamous August 2015 videotaped exchange with my colleague Kai Nagata with his current pipeline stance. The video made clear the future Prime Minister promised the National Energy Board’s (NEB) review of Kinder Morgan would be redone.

The betrayal gets worse. In a detailed follow up letter to Dogwood dated two weeks before Trudeau won a majority government – Liberal Party president Anna Gainey wrote about Kinder Morgan’s project:

“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.”

And here comes the kicker:

“We agree with what you, and Canadians across the country, have been saying for a long time: Canada’s environmental assessment process is broken.”

Yet, somehow the “broken”, unsupportable process miraculously repaired itself as Trudeau mounted the steps at 24 Sussex Drive.

The National also had Jim Carr, the Minister of Natural Resources, defending the Kinder Morgan review as the “the most exhaustive in the history of pipelines in Canada.” Candidate Trudeau’s own words and his party’s letter mock Minister Carr’s claim.

In reality, the NEB’s review of Kinder Morgan was about as fair and rigorous as a Trump national security vetting, without the tweets. I guess there is something about Ottawa that makes politicians like Harper and Trudeau think they can transform black into white just because they say so.

As for Trudeau’s promised “redo”? Although deeply flawed itself, Jim Carr’s slap dash “supplemental ministerial review” identified many important issues overlooked in the NEB process. The panel acknowledged they “hadn’t the time, technical expertise or the resources to fill those gaps.” Concluding, “[o]ur role was not to propose solutions, but to identify important questions that, in the circumstances, remain unanswered (emphasis added).”

Despite this, Trudeau went ahead and approved Kinder Morgan without addressing any of the six unanswered questions raised by the panel.

The notorious Frank Underwood from House of Cards would be proud of Justin and Jim, but British Columbians are pissed.

Many Liberal MPs from B.C. tried to warn the PMO about the inevitable backlash, but they have their own agenda and are ignorant of how B.C. ticks. Just like Harper’s fatal mistake of pushing Enbridge, the PMO seems to be banking on the issue dying before 2019. The Green-NDP alliance makes that unlikely.

Alberta Premier Rachel Notley’s recent pro-Kinder Morgan proclamations were equally ham fisted. “Mark my words,” she said, “that pipeline will be built, the decisions have been made and it is the best interest of Albertans, Canadians and, in particular, British Columbians.”

Nice try Ms. Notley, but where do you get off thinking you can speak for the best interests of British Columbians? I know you’re working hard to drag your province’s laissez faire energy policies into the twenty-first century, but you’re not going to succeed by linking your political survival to something you have no influence over. How exactly are you going to force the B.C. government to approve the 60+ provincial permits Kinder Morgan still needs for construction? Sorry, but you have no power here.

Let’s get real. British Columbians are tired of eastern politicians and federally appointed bodies trying to to force unwanted projects through our unwilling province. And we won’t sit idly by while Big Oil, Notley, pro-oil publications and, of course, Trudeau’s federal Liberals double down, falsely claiming Kinder Morgan is in the “national interest.”

Expect a chorus of pundits and politicos, mostly located east of the Rockies, claiming B.C. has no power to stop it. But don’t believe them. In fact, remind them they said the same thing about Enbridge’s Northern Gateway.

When are the arrogant elites in Ottawa going to stop underestimating the power of the No Tanker/anti-Kinder Morgan movement?

Stephen Harper underestimated British Columbians and it cost him 19 of 21 tidewater ridings and almost 150,000 votes in B.C. And now it has cost Christy Clark 24 of 34 tidewater ridings and ultimately a majority government.

Trudeau has grossly underestimated the depth of the Kinder Morgan opposition and the resolve of British Columbians. So mark MY words — Ottawa’s broken promises on electoral reform and a Kinder Morgan redo could prevent him from retaining his majority in 2019. Incumbent federal Liberal MP’s should have a few sleepless nights after looking at this map:

And while politicians are meeting with lobbyists and hosting cash-for-access dinners, Dogwood staff, volunteers, allies, partner groups and First Nations are talking to everyday British Columbians and building our army of resistance ready to fight political interests trying to push our country backward instead of forward.

When Green Party leader Andrew Weaver said “If Rachel Notley thinks there’s nothing B.C. can do to stop Kinder Morgan, I suggest she look at section 35 of the Constitution,” he was absolutely right. And he wasn’t just flipping the bird to Big Oil and Alberta’s arrogant view that what’s good for them is good for all Canadians. He was showing British Columbians that we finally have a government willing to fight for us and not for the interests of Big Money.

Like most people, I too carry the scars of disappointment from a long list of broken political promises. My flashbacks of Trudeau’s betrayals while watching CBC’s Kinder Morgan coverage are almost painful.

Hopefully, this time is different. The ultra thin margin between the parties means that the soon-to-be government can’t risk breaking its promises. One MLA abstaining, one MLA crossing the aisle or going rogue could topple the government or defeat an important bill. This gives us enormous leverage and opens new doors for holding a government to its promises.

It won’t be easy, we’ll face unexpected obstacles, but if we commit to connecting people together, and creating a framework for them to collectively exert power, we can start creating the province we dream about for our kids.

This is the moment we have been preparing for. It’s our time.

We are big, we are strong, we are resilient, we are organized, and every day we grow more powerful.

If Ottawa, Texas or Alberta want to go toe-to-toe once again, I’m raring to go.

How about you?

It was the best of times, it was the worst of times Read More »

Lies, Misrepresentation and Puffing the Market

Truth & Rumours / May 29, 2017 / Kinder Morgan, National Energy Board, Trans Mountain

Last week the propaganda campaign pushing Kinder Morgan‘s controversial Trans Mountain oil tanker-pipeline proposal sunk to a new low. In an attempt to assuage investors sniffing around the $1.75 billion initial public offering (IPO) his company is launching on May 31st Ian Anderson, president of Kinder Morgan Canada Limited, issued a press release saying: “Our approvals are in hand and we are now ready to commence construction activities this fall.”

Sounds good doesn’t it?

If only it were true.

It’s not! In fact, it’s a complete fabrication.

When I contacted a senior staffer with the B.C. government and read him Anderson’s quote about having “approvals in hand,” he said: “As far as I know Kinder Morgan has no provincial permit approvals in hand. We are still trying to determine how the 157 conditions the National Energy Board imposed, as well as British Columbia conditions, map onto the provincial permitting process.”

It’s hard to reconcile statement that the approvals are in hand with the fact that no provincial permits have been granted and significant federal approval remain. There are only two possible explanations for this huge discrepancy.

One, Kinder Morgan Canada’s President is lying in order to puff his IPO, counter the escalating political risk facing his proposal, and mislead investors about the timing of when construction will begin; or

Two, Ian Anderson doesn’t know the true state of the permits and legislative risk facing his controversial proposal.

I don’t know which explanation is more damaging when trying to entice investors to hand over $1.75 billion in an IPO.
The reality is that the $7.4 billion proposal only has two of the hundreds of approvals needed to put shovels in the ground.

Let’s recap.

While the Trans Mountain proposal did receive Cabinet approval last November, and environmental assessment approval from B.C. in January, there were 157 conditions set by the National Energy Board as well as dozens more from the Province.

More, almost 400 residents have filed objections to the final route Kinder Morgan is seeking to have approved by the National Energy Board, there is a high probability that some segments of the proposal will need to be rerouted and the final routing decision could take a long time.

Plus the province hasn’t even identified, let alone granted, all of the 60 plus permits needed from B.C.

Sounds like Kinder Morgan faces significant risks and is actually a long way from being “ready to commence construction activities this fall.”

The timing of Kinder Morgan’s press release and initial public offering is also suspicious. The announcement came less than 24 hours after the B.C. election results were finalized, with the two parties holding a majority of the seats committing to do anything in their power to stop the proposal. Meanwhile the bell on the initial public offering is scheduled to ring within hours of the news about a potential governing alliance between parties committed to rejecting Kinder Morgan.

Markets want certainty! So why would Kinder Morgan executives be issuing misleading press releases and rushing to market while facing escalating political risk?

The answer is, as usual, money. Lots of money for the financially beleaguered company bereft of partners, carrying huge debts, a falling credit rating credit rating and a project unlikely to ever be built.

In an investor call held just before the provincial election, financial blogger David Alton Clark asked Kinder Morgan reps what would happen if the Trans Mountain were abandoned. “It would certainly be a major setback, but with ground not broken yet, KMI could direct most of the cash we would use for this project to other projects,” Clark reports them saying.

“The investor relations team indicated only $600 million in sunk costs on TMEP presently,” Clark writes. So, how much cash will Kinder Morgan Canada net if next week’s IPO goes to plan? Somewhere between $500 million and $750 million.

That brings Kinder Morgan’s odd choices into focus. Even if the Trans Mountain proposal gets bogged down – by a antagonistic new provincial government, or by the 19 lawsuits it faces, or by the massive civil disobedience opponents promise – if Kinder Morgan can entice enough investors to hand over $1.75 billion in an initial public offering, the company will walk away with hundreds of millions even if the proposal dies and investors lose their shirt.

No wonder Ian Anderson lied.

Lies, Misrepresentation and Puffing the Market Read More »

We need courageous leaders, not empty promises and lies

Reinvigorate Democracy / December 13, 2016 / Justin Trudeau, Kinder Morgan, National Energy Board, oil

“It takes a great deal of bravery to stand up to our enemies, but a great deal more to stand up to your friends.”
Albus Dumbledore, Harry Potter and the Philosopher’s Stone

Occasionally, a leader has the courage to take controversial action even though there may be enormous political consequences. Unfortunately, most of the time they take the coward’s path.

Legend has it, after President Lyndon B. Johnson signed the historic but highly contentious Civil Rights Act into law on June 2, 1964, he turned to his aide, Bill Moyers (the now famous-PBS TV host), and said, “We have lost the South for a generation.” Johnson enacted the momentous law despite the inevitable electoral blowback because it was the right thing to do. He knew his simple signature on the transformational law set him on the right side of history. Unfortunately, Johnson’s political prophecy was, if anything, understated.

Johnson’s civil rights law changed America forever. The law ended segregation in public places and banned employment discrimination on the basis of race, color, religion, sex or national origin. The long civil rights struggle we mythologize now — lunch counter sit-ins, boycotts, marches and assassinations – set the stage for Johnson. His signature, along with the one he affixed a year later to the Voting Rights Act, are considered the crowning legislative achievements of the civil rights movement and of his presidency. With the simple swipe of a pen, Johnson set a course that would help improve the lives of millions of people for generations.

Last week, when Prime Minister Trudeau announced his approval of Kinder Morgan’s pipeline expansion, he couldn’t muster President Johnson’s courage to be on the right side of history. Instead, he took the well-traveled coward’s path.

Context is important. The proof of cascading global warming is multiplying daily. Not a week goes by without some new dire announcement showing the scientific modeling has underestimated the pace global warming is happening. Last week it was the news that the Arctic was 31 degrees hotter than normal and sea ice was at an all-time low.

This is not lost on our boyish Canadian leader. He certainly understands the need for fast and courageous action on climate. You need only look at his statements prior to attending the Paris climate talks last year.

“We’ll demonstrate that we are serious about climate change … This means making decisions based on science…”

Over the last twelve months Trudeau’s modus operandi is becoming clear: he likes to be out front when a few flashy promises will garner headlines, but when the heavy lifting of true leadership is needed, Trudeau caves to the whims of Big Oil, the communist-Chinese government and Big Money donors from Bay Street.

Our “sunny ways” leader has information at his fingertips that shows new pipelines will dramatically increase domestic and global heat-trapping pollution — the math is obvious and unequivocal. Kinder Morgan alone could unlock as much as 162 million tonnes of atmospheric pollution every year, overwhelming many of Trudeau’s much touted climate measures. For instance, phasing out domestic coal-burning power will only drop nation-wide emissions by five million tonnes, and his well-publicized national carbon pricing plan will only reduce our emissions by 18 million tons.

While the public is understandably confused by misleading press accounts from oil industry executives, lobbyists and lazy politicians claiming a Canadian pipeline bottleneck is hurting our economy, our photogenic leader knows Alberta doesn’t need any new pipelines to ship their bitumen to market. Cabinet documents, independent studies, and academics all prove Canada has enough pipeline capacity to get current and projected oil to market for a decade or more.

Our Prime Minister also knows claims that selling oil into the Asian market will overcome the much-touted Canadian discount are entirely fictitious. Cabinet documents spell out clearly that the so-called Canadian discount doesn’t exist, and that the lower price for Western Canadian Select (e.g. diluted bitumen and heavy oil) comes from its lower quality and higher cost to transport, not its source. In fact, our celebrity leader should know the United States – our current customer – pays more for heavy oil than either the Asian or European markets. If Trudeau is being properly briefed, he knows zero oil tankers and zero barrels of oil are scheduled to be shipped to Asia, while the oil tankers currently transporting from Kinder Morgan’s Burnaby oil tanker port are all going to California.

Finally, Canada’s freshman leader should be well aware the Chinese market can’t handle diluted bitumen. In fact, China has no refineries equipped to refine heavy bitumen.

Given all this information Trudeau knows — or should know — why then did he approve Kinder Morgan? Because he lacks Lyndon Johnson’s courage to do what’s in the best interest of all Canadians and proudly make the inconvenient choices that would put him on the right side of history.

Not only was his Kinder Morgan approval cowardly, it also broke a fundamental promise that helped him win a majority. Perhaps you’ve seen the video from midway through Trudeau’s campaign when he told Dogwood’s Kai Nagata, “That process needs to be redone,” referring to the Harper government’s broken NEB review process. But what most people don’t know is that before we released that video, Dogwood sent a copy and a link to Trudeau’s press spokesman and asked if this change in position was now “official Liberal party policy?” Cameron Ahmad, Trudeau’s spokesperson wrote back confirming it was official policy. We then e-mailed and asked for clarification on what “redo the review” actually meant. We received a four-page letter from Anna Gainey, President of the Liberal Party of Canada, detailing that, if elected, Trudeau’s government would:

(1) launch an immediate, public review of Canada’s environmental assessment processes;

(2) modernize and rebuild trust in the National Energy Board;

(3) ensure that the Crown is fully executing its consultation, accommodation, and consent obligations on project reviews and assessments, in accordance with its constitutional and international human rights obligations [in partnership with First Nations];

(4) understand that governments may be able to issue permits, but only communities can grant permission and a Liberal government will undertake broad consultation with stakeholders and civil society on the issues that matter to them.

So much for promises. Each point we now know was either an outright lie or a sign of how easily Trudeau buckled under the pressure of Big Oil’s money and influence, throwing everyday Canadians like you and I straight under the bus.

Perhaps Trudeau signed the Kinder Morgan approval because his confidants told him it would win his party more seats in Alberta than he’ll lose in British Columbia. Hogwash! Trudeau’s insiders have deluded themselves that the approval will only cost them three B.C. MP seats in the next election. But while both Johnson and Trudeau underestimated the negative impact of their actions on their party’s future, only Johnson had the courage to take bold action anyway. Recent Dogwood polling found 31 per cent of Trudeau’s voters in B.C. are less likely to vote Liberal again because of the Kinder Morgan approval.

Since our fearful national leader lacked the courage to step onto the right side of history, the people of British Columbia will have to do it for ourselves. We need to summon our resolve to take action against the monumentally stupid approval just as we have every time a reckless and unwanted oil tanker and pipeline scheme has been pushed on us over the last 40 years. While the Prime Minister and his minions may not be brave, I know tens of thousands of British Columbians have the gumption to stand up to Big Oil and their toadies in Ottawa and Edmonton.

It won’t be easy, but with hard work and the willingness to step out of our comfort zone, together we’ll beat Kinder Morgan just like we beat Enbridge.

Oh and Justin, British Columbians will see you in 2019.

We need courageous leaders, not empty promises and lies Read More »

Justin Trudeau dangerously underestimates British Columbians

Civil Society / November 25, 2016 / Justin Trudeau, Kinder Morgan, Trans Mountain

Surprises are becoming the norm in recent elections. Last year Rachel Notley swept the NDP to an unprecedented majority in Alberta, then Justin Trudeau vaulted from third place to win a majority government in Ottawa. This year UK voters stunned pundits by voting to leave the EU, then Donald Trump defied the polls to win in the United States.

Is there a common thread in these upset victories (or losses, depending who you were rooting for)?

Columnists and historians will write volumes on why voters in Wisconsin, Michigan and Pennsylvania abandoned the Democratic Party and voted for Trump, but I think it’s pretty simple. People rebel when they feel ignored or taken for granted. Clinton lost her chance to form government because angry voters in the so-called flyover states, tired of being neglected by business-as-usual politics in the capital, abandoned her party to send a message: screw you.

Trudeau seemed to be tuned into the Canadian version of this alienation during the federal election, and his promises tapped into the zeitgeist. His first few months in power were impressive, but recently he has acted like just another Ottawa politician – especially when it comes to the interests of big banks and Big Oil.

When Trudeau swept to power many First Nation leaders were euphoric, singing the boyish Prime Minister’s praises. A month after being sworn in, Trudeau was honoured at the annual meeting of the Assembly of First Nations with a traditional blanket ceremony in front of hundreds of Aboriginal leaders. Now, less than a year later, Trudeau is being barred from Tla-o-qui-aht territory and Indigenous leaders like Caleb Behn, Chief Stewart Phillip, and Roland Willson have publicly said they feel betrayed.

First it was the approval of Site C dam permits, then a massive Malaysian gas plant in the heart of the rich Skeena salmon estuary, then the mishandling of what should have been a minor tug accident in Heiltsuk territory – which turned into a nightmare after 100,000 litres of fuel and oil escaped, poisoning a vital food harvesting area.

Now Robert Davidson, the Haida artist whose Raven design Trudeau lifted for his shoulder tattoo, has said publicly how disappointed he is in the Prime Minister. And the whiplash felt by First Nations leaders could soon spill over to B.C. voters, whose support for political parties is notoriously fickle.

Like folks in flyover America, British Columbians and First Nations are fed up with federal politicians who jet in for a few hours, make promises to get elected and then disappear when the going gets tough. The Heiltsuk, grieving the loss of their fishing grounds, have publicly challenged Trudeau to fly to Bella Bella and fulfill his promise of an oil tanker ban, “in the spirit of reconciliation”. Not only has the PM not responded, but his government is backtracking on other election promises.

If Trudeau pushes through a Kinder Morgan approval this fall, voters in B.C. will feel ignored, lied to and taken for granted; and like voters in flyover America the consequences could be far-reaching. For more than a decade, hundreds of thousands of British Columbians have been using every available tool to signal to Ottawa that we don’t want an expansion of oil tankers in our fragile waters. And for more than a decade, Prime Ministers in Ottawa have patted us on the head, muttered a few platitudes and then put their finger on the scale to push unwanted projects like Enbridge and Kinder Morgan on our unwilling province. We are fed up.

A lot of people thought our new telegenic Prime Minister would follow through on his promises: kill Enbridge, legislate an oil tanker ban on the North Coast, replace the first-past-the-post system, restore integrity to the NEB process and subject Kinder Morgan to a rigorous review.

More than a year later, rumours abound that each promise will be abandoned or significantly watered down. So how badly has this backtracking tarnished Trudeau’s image in B.C.?

A new province-wide online poll by Insights West shows strong opposition to increased oil tanker traffic on British Columbia’s south coast, especially among voters who supported Justin Trudeau’s Liberal Party in the 2015 federal election.

The poll, commissioned by Dogwood, found two-in-five voters in Metro Vancouver (where the majority of Liberal seats in B.C. are located), said they would be less likely to vote Liberal next election if the federal government approves Kinder Morgan’s oil tanker and pipeline project. Fully 31 per cent of Liberal voters say they would be less likely to support Trudeau’s party if the project goes ahead. Overall, two out of three British Columbians remain opposed to oil tanker expansion and 64 per cent of respondents who voted Liberal in 2015 also oppose.

Other key findings should send a chill up Trudeau’s spine if he intends, as rumoured, to approve the controversial proposal:

62 per cent of British Columbians polled agree a Kinder Morgan approval would contradict Prime Minister Trudeau’s promises on climate leadership and a “new relationship” with First Nations. Among Liberal voters in B.C., 58 per cent agree with this assessment.
74 per cent of British Columbians (and 78 per cent of Liberal voters) say they are less likely to support oil tanker expansion when considering the impacts on the South Coast’s 80 resident orca whales.
A whopping four in five young voters under 35 in B.C. oppose oil tanker expansion. (Trudeau gave himself the position of Minister for Youth.)

Unlike Hillary Clinton, Prime Minister Trudeau still has a shot to get himself straightened out. To do that, he should be very careful not to emulate Stephen Harper’s hamfisted efforts to shove oil pipelines down British Columbia’s throat.

Back in 2014 when Harper’s cabinet approved Enbridge, we heard the same rationale from the governing party we are hearing now on Kinder Morgan: Enbridge was just another “issue”, and there would be three years for Harper to rebuild trust. A good theory, but in practice Conservative candidates lost almost 150,000 votes in British Columbia (they lost 24 percent of their voters in ridings with Dogwood organizing teams worked in while only losing an average of 1.7 per cent elsewhere in Canada).

What Trudeau and his advisors seem to be missing out West is that the central question for British Columbians remains (as it was for Albertans after Pierre Trudeau tried implementing the infamous National Energy Plan in the ‘80s and ’90s): Who gets to decide what’s in our best interest — Ottawa or the people who live here?

Perhaps we shouldn’t be surprised. Trudeau’s father also become intoxicated with his own popularity, blundering into a massive overreach that alienated Prairie voters for a generation. Pierre Elliott Trudeau badly miscalculated the consequences of forcing his controversial National Energy Program on an unwilling Alberta. Ironically, in trying to reboot the historically toxic Trudeau brand in Alberta, Justin Trudeau is poised to mirror his father’s mistake, by forcing a controversial oil tanker-pipeline proposal on unwilling British Columbians.

British Columbia may not be literally a “flyover” province, but many residents still feel ignored as the federal government remains fixated on placating Alberta, Quebec and the population centres in Ontario. While most British Columbians are pleased with the post-Harper tone in Ottawa, we are feeling increasingly apart from our capital, and resentful of decisions being imposed on us from afar. The slapdash Kinder Morgan review process, which failed to meet any objective standard of rigour, didn’t help.

Being lied to and taken for granted hurts, doubly so when your expectations have been raised. The rebellion of the ignored masses in flyover America surprised us all, but now is the time for our leaders to learn from the glaring mistakes that have now been made so clear. If Trudeau doesn’t smarten up and reject Kinder Morgan, or at the very least send it back for a proper review like he promised, his supporters will turn on him.

If that happens, Trudeau could become the thing all Prime Ministers fear the most: a one-term wonder.

Justin Trudeau dangerously underestimates British Columbians Read More »

Never underestimate British Columbians

Reinvigorate Democracy / October 6, 2016 / Kinder Morgan, Liberal Party

The last time a Prime Minister named Trudeau forced an unpopular energy policy on a western province, the backlash eviscerated the Liberals’ foothold in the West and created fault lines that ultimately transformed Canada for a generation.

Trudeau, the father, miscalculated the impact of overriding Alberta to force his National Energy Program through. By approving a new pipeline to tidewater to appease Big Oil, Trudeau, the son, would be alienating British Columbians to benefit Alberta. Ironically, while trying to remedy the Trudeau brand in Alberta, Trudeau is duplicating his father’s mistake. The consequences could be enormous.

Pundits, Liberal insiders and even Kinder Morgan executives are all whispering that Trudeau’s Cabinet has decided to approve Kinder Morgan in December. Trudeau’s East Coast advisors seem to believe British Columbians will forget about Kinder Morgan well before the next election comes around. The assumption behind that miscalculation is that the expansion of oil tankers is just another issue and a controversial approval will be long forgotten by 2019. Fat chance.

As pundits and politicians regurgitate the benefits of tidewater pipelines and crude oil tanker export proposals in B.C., they continue to miss the deeper sense of alienation that’s taking hold. British Columbians, and especially First Nations, are growing increasingly resentful of decisions they feel have been imposed on them from the outside.

Trudeau tapped into this sentiment with his promise of a Kinder Morgan review do-over and reconciliation with First Nations, but he seems to have lost touch since he formed government. The initial optimism with our newage Prime Minister is fading fast with every approval of projects reviewed under Harper’s truncated processes —Fraser Surrey Docks’ coal terminal, Woodfibre LNG and Site C — but signed off on by Trudeau’s government.

Like Albertan decades-long convulsions over the National Energy Program, British Columbians aren’t likely to forget before 2019. This miscalculation is not unique to Liberal party headquarters. Virtually every politico east of the Rockies has underestimated the power of the B.C. climate and No Tanker movements. Stephen Harper certainly did, and it cost him almost every tidewater riding and 149,075 votes.

After forty years of successfully turning back every tidewater oil tanker-pipeline scheme proposed for British Columbia’s magnificent coast, do Trudeau’s advisors really think a few shirtless selfies and a carbon price (that won’t affect B.C. until 2021) are going to somehow invoke collective amnesia?

The slapdash make-it-up-as-you-go-along Kinder Morgan Ministerial hearings dug the hole deeper by confirming Ottawa wasn’t taking British Columbians seriously. Despite the rhetoric about a return to science and “evidence-based” decision-making, the hearings were anything but.

Liberal MPs who thought the charade would buy them “social licence” are in for a big surprise. A palpable feeling that the decision was preordained and that the panel was just going through the motions was shared by everyone attending. For heaven’s sake, the whispers of a December approval from credible sources are multiplying even before the panel’s report has been written.

As Dogwood organizer Mary Leighton’s dynamic speech illustrated, the hearings were just the beginning of our fight.

Perhaps it’s not surprising the red team is arrogant and feeling invincible. Their poll numbers are good. But arrogance is dangerous in modern politics, particularly in B.C.

Until recently, Trudeau’s Liberals have never faced off against the focused, strategic, resilient power of the battle-tested No Tanker movement. Having never faced a highly organized grassroots gauntlet, it is no surprise Trudeau’s Liberals currently discount our impact; treating us as just another special interest, incapable of impacting electoral outcomes. We need to remind them that Harper also underestimated us and paid dearly for his miscalculation.

Dogwood has formidable networks of No Tanker supporters in 11 of the 17 B.C. ridings currently held by Liberal MPs. Plus, there are dozens of other groups opposed to the proposal and First Nations are prepping their lawsuits.

Together, we are well positioned to short-circuit this political (mis)calculation. Our people are trained, resourced and passionate. They have stood up to — and beaten back — decade-long attempts by Ottawa to push through unwanted projects deemed by the government of the day to be in the national interest. The Liberals think the wave of voters who swept their way in the final days of the election now form their base. Think again.

Also, keep in mind a rejection by Ottawa is not the only path to stopping Kinder Morgan.

First Nations are well positioned to tie up Kinder Morgan in the courts. Court rulings have confirmed that the B.C government also has to approve permits for oil tanker-pipeline projects to go ahead. Since there is provincial jurisdiction, British Columbians don’t have to wait for government to act — we can take action ourselves using B.C.’s unique direct democracy law.

Dogwood teams throughout the province have been prepping for years to launch a citizens’ initiative – like what happened with the HST – as a democratic insurance policy against our Premier bowing to Ottawa’s bid to force an unwanted project like Kinder Morgan through our province. We have a ways to go to pre-organize the 10 per cent of the electorate needed to win, but we have already trained 22 teams of experienced canvassers and have more than a quarter million supporters.

Plus, we’re getting stronger every day. While Trudeau’s team is prepping for a Kinder Morgan approval in December, we’ll be organizing.

Starting today, we are launching Knock the Block – asking our staff, board and more than 250,000 No Tankers supporters to step slightly out of their comfort zone and knock on the doors of their neighbours, friends and family to encourage them to sign the Let BC Vote petition. If each Dogwood supporter signs up just one person, we will have the numbers of people needed for a citizens’ initiative.

If each of us takes a couple of hours to help organize, we can show our federal and provincial representatives just how many people in B.C. are concerned about being cut out of the decision-making process.

Despite the smiles and promises, it’s now clear we can’t trust Ottawa and Victoria to stand up for B.C. on oil pipeline and tanker projects like Kinder Morgan. So it’s time to get ready to stand up for ourselves. Sign up here to Knock the Block!

Together we can hold our political leaders to account and change Canadian politics for a generation.

Never underestimate British Columbians Read More »

Kinder Morgan supplementary hearing room

Trudeau’s new pipeline process: worse than National Energy Board?

Reinvigorate Democracy / August 5, 2016 / Canada Government, Kinder Morgan, National Energy Board, public hearings

First Nations leaders left in the dark. The public, once again, denied the chance to speak. Add to that a clear conflict of interest at the heart of the panel chosen to review Kinder Morgan’s pipeline proposal and you have a recipe for yet more lawsuits and squandered public trust.

It didn’t have to be this way. After nearly 10 years under Stephen Harper, British Columbians were yearning for a government that cared about public input and would actually listen to them.

We all know how much Harper scorned public consultation, highlighted by Minister Joe Oliver’s attack on well-meaning Canadians as “radicals” for having the temerity to accept the National Energy Board’s invitation to speak at Joint Review Panel hearings on Enbridge’s controversial pipeline and tanker proposal.

Conflict of interest, slapdash process drag down Liberals’ Kinder Morgan review

You may also remember the National Energy Board’s so-called public hearings this January in Burnaby, where the Harper-appointed panel barred the public from the room. That’s why the Trudeau government announced a new “supplementary process” on Kinder Morgan to restore public trust by actually listening to those most affected.

After all, as Trudeau said so often on the campaign trail, “governments grant permits, but only communities can grant permission.” Yet in what seems like a bad dream, those communities are once again being silenced in the mad rush to get bitumen pipelines to the coast.

At first Trudeau’s government was a breath of fresh air, promising broad public consultations on a wide variety of subjects: CBC’s future, the Trans-Pacific Partnership agreement (TPP), Canada Post home delivery, legalizing marijuana, employment insurance (EI) reforms, environmental assessment reforms, electoral reform and a pan-Canadian climate change plan, just to name a few.

Canadians applauded the change in tone in Ottawa and welcomed the opportunity to have a say in issues that concerned them. But the reality is consultation involves more than sound bites. Recent developments on the pipeline file raise serious concerns about the Trudeau government’s commitment to actually listen to British Columbians.

Where did it all go wrong?

The afternoon before the Canada Day long weekend, Ottawa’s Major Projects Management Office finally released details for the long-anticipated redo of the Kinder Morgan review.

The government announced a series of 90-minute ‘roundtables’ in the middle of summer holidays in seven communities across B.C. Only one, Victoria, is on the oil tanker route. The sessions are divided up between First Nations, business groups, labour and NGOs.

Who gets to speak? That’s up to the Natural Resources bureaucrats. All the website says is “Should you wish to participate by making a presentation or comments to the Panel, please email us at nrcan.ministerialpaneltmx-comiteministerieltmx.rncan@canada.ca to confirm your preferred location and date.”

If you’re counting, that email address contains 62 characters. The longest word in the English language, pneumonoultramicroscopicsilicovolcanoconiosis, is just 45. Supercalifragilisticexpialidocious, made famous by Mary Poppins, clocks in at 34 letters.

In addition, four communities (Victoria, Vancouver, Burnaby and Langley) each get a “public townhall with open participation,” time and venue TBD.

After residents on the North Shore vented their frustration to local Liberal MPs, the government quietly added a fifth townhall in North Vancouver on a Friday in August. The rest of the province is out of luck.

For example, in Kamloops, members of the public were told they were allowed to go and watch, but without a chance to comment or ask questions. There are four hours scheduled for First Nations, while invited municipal, business and NGO “stakeholders” have each been allotted 90 minutes. There is no slot for the public to present their views. On the day of the meeting the supplemental panel decided to open up the process and allow people to speak or ask questions. Many people chose not to attend thinking there was no such opportunity.

So much for transparency and inclusion

Instead of a thorough review that could remedy the fatal flaws of the NEB process, Trudeau’s government appears to have adopted a “make it up as you go along” process that is nothing if not short on rigour. It’s unacceptable after 12 years of trying to get government to listen, each community only gets a few minutes to sum up their views on the Kinder Morgan proposal.

How about the literally thousands of pages of scientific review the NEB ignored, deemed inadmissible, or failed to consider? How will that be brought into evidence? One such item being the U.S. National Academies of Science report which documented the dangers of diluted bitumen spills (the stuff sinks in water). The NEB rejected the report because it was labeled as “prejudicial” to Kinder Morgan. How is that peer-reviewed science supposed to be presented this truncated format?

What about the thousands of pages of evidence Kinder Morgan submitted, but was never tested under cross examination? I’d like to see someone try to compress into the few minutes allotted to each speaker.

Finally, how is Ottawa deciding who gets invited and who doesn’t?

At the Edmonton hearing — the location of which was announced with only 48 hours notice — the majority of people in attendance were those personally invited by the government in advance. A similar situation is happening with the B.C. sessions. I can think of a lot of choice words to describe this “supplementary review,” but rigorous, transparent, open and inclusive are not among them.

I’m deeply disappointed, as will be many other British Columbians that were happy to think “Sunny Ways” was replacing a decade of Harper’s bully tactics. I thought when Prime Minister Trudeau promised Dogwood, on camera, to re-do the Kinder Morgan review that he sincerely wanted to hear from British Columbians. Instead, bureaucrats are racing through these summer meetings so Cabinet can stick to Stephen Harper’s original timeline and make a final decision in December.

Last chance to fix this

The decision whether to expand oil tanker traffic on the B.C. coast is too important to do on the basis of a slapdash PR exercise. This is not a political game. The entire Lower Mainland and South Island would be affected by an oil tanker spill, plus everyone who relies on salmon from the Fraser and Thompson watersheds — or the multi-billion dollar tourism industry on the south coast. And that’s before counting the enormous climate impacts.

As a leaked Finance Ministry memo made clear, there is no pressing need for this pipeline: “sufficient capacity is projected to exist to transport oil until at least 2025.” Kinder Morgan’s proposal is all about expanding the oil sands. That’s worth a broader conversation.

Given the legal risks and public dissatisfaction surrounding the NEB’s heavy-handed Trans Mountain process, Trudeau could have extended the deadline for the ultimate cabinet decision. He chose not to. He could have announced a do-over in June after the Federal Court of Appeal slammed Ottawa for its handling of the Enbridge review. Again, he chose not to.

As British Columbians know all too well, pipeline approvals are not simply a matter of technical feasibility. Social, legal and cumulative environmental impacts all factor into a public interest decision that ultimately must be made by accountable, elected members of government.

During the election campaign Trudeau and the Federal Liberal candidates in coastal B.C. seemed to understand this. Their apparent willingness to cancel Enbridge and demand a fair, open, rigorous review process for Kinder Morgan led to them gaining 15 seats while the Conservatives lost 11 seats in our province.

Then the lobbyists swooped in. Now that the Liberals have been in government for most of a year, the backroom pressure and political horse trading is starting to chip away at the government’s campaign promises.

Democracy unfortunately requires eternal vigilance. The people of B.C., together with First Nations, have kept Big Oil and their cheerleaders in Alberta, Ottawa and Bay Street from building a west coast oil port for decades. Together we have held off the greediest industry on the planet for years, thanks to concerted pressure on political decision-makers.

These hearings are part of that seemingly never-ending story. So before you throw up your hands in frustration, remember the real audience is not the panel itself — it’s your fellow citizens and the MPs watching the process unfold. The decision ultimately will be made by our elected representatives in Ottawa and Victoria.

They may have forgotten how to listen. They may have forgotten how strongly British Columbians oppose the expansion of oil tankers in our waters. These town halls, slapdash though they may be, will be our chance to remind them. Here’s where you can sign up. If the government is smart, they’ll pull the plug on these summer roundtables and come back with a real process.

Trudeau’s new pipeline process: worse than National Energy Board? Read More »