First Nations leaders at odds over potential pipeline ownership

Is the Trudeau government cynically trying to pass over liability to First Nations?

‘The bottom line is that there is no certainty in this investment,’ says Judy Wilson


Steel pipe to be used in the oil pipeline construction of the Trans Mountain expansion project at a stockpile site in Kamloops, B.C. (Dennis Owen/Reuters)

An Indigenous group is urging other First Nations to not invest in the Trans Mountain pipeline expansion, arguing it is not a sound investment.

The Union of B.C. Indian Chiefs (UBCIC) has penned an open letter to some leaders who are exploring the idea of partial ownership in the project.

It warns of potential financial risks tied to the proposed pipeline expansion if it gets the ultimate green light from Ottawa.

“The bottom line is that there is no certainty in this investment,” said Judy Wilson, secretary treasurer with the UBCIC. She co-signed the letter with Grand Chief Stewart Phillip.

“A lot of the communities may not have the full financial information and a lot of things they should know if they are going to be investing.”

Chief Judy Wilson with the Union of B.C. Indian Chiefs says that she chooses the health of the southern resident killer whales over the Trans Mountain pipeline expansion. (Chantelle Bellrichard/CBC)

The letter outlines concerns around ballooning constructions costs of the project, citing total cost estimates upwards of $15 billion.

“When people start doing the actual number crunching they’ll see there’s no real return,” said Wilson, referencing last year’s buy-out by the federal government. MORE

RELATED:

Letter: Trans Mountain poses significant financial risks for First Nations

Trans Mountain consultation approach ‘fatally flawed’ even with extension, says First Nations leader

The Trudeau government is in a clear conflict of interest as owners of the TransMountain pipeline and their duty to consult with the traditional legitimate title holders. Expect litigation and more delay.

‘Extending the timeline doesn’t address all these issues and approach to consultation,’ says Judy Wilson


Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau critical of the consultation process on the Trans Mountain pipeline. (Chantelle Bellrichard/CBC)

Even if the time period for consultation with Indigenous groups over the expansion of the Trans Mountain pipeline is extended by a few weeks, “it still doesn’t make up for the approach and the flawed way the consultations are being done,” says one B.C. First Nations leader.

Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau earlier this week in which she described the consultation process as “fatally flawed” and detailed several critiques of the process that’s currently underway.

Amarjeet Sohi, Minister of Natural Resources, announced Thursday the consultation timeframe would be extended by a month, based on requests from Indigenous groups and advice from former Supreme Court of Canada justice Frank Iacobucci who is leading the government’s efforts on consultation for the proposed expansion.

“Extending the timeline doesn’t address all these issues and approach to consultation,” said Wilson.

Among her criticisms is that Canada is in a “clear conflict-of-interest” when it comes to fulfilling its obligations to Indigenous groups, especially since it purchased the project from Kinder Morgan.

“As pipeline owners, they have a constant bias now because they’re looking at the interest of the pipeline as a national interest versus their Crown role for consultation to our Indigenous Peoples,” said Wilson in an interview Thursday.

She is also critical of the consultation process itself, because “it’s still bypassing our proper title holders, who are our people … they’re relying mainly on the band construct, which the federal government created,” she said.

MORE

RELATED:

‘Fundamental Incoherence’ in Trudeau’s Climate Policies, Says Campaigner

Ottawa praises BC’s green leadership, while fighting provincial legal case on Trans Mountain expansion.

TrudeauNotleySeated.jpg
Justin Trudeau’s government welcomes BC’s support on carbon tax, but is siding with Alberta’s Rachel Notley in fighting against BC’s right to regulate oil shipments. Photo from Alberta government.

The federal government’s treatment of British Columbia shows the Trudeau Liberals’ “incoherence” on climate change, says an environmental campaigner.

On one hand, Environment Minister Catherine McKenna is calling B.C. an “exemplary climate leader” on Twitter, because the provincial government supports its carbon tax.

582px version of CatherineMcKennaClimateLeaderTweet.jpg

At the same time, the Trudeau government is fighting to force the Trans Mountain pipeline expansion through B.C. over the provincial government’s objections and accusing B.C. of hurting the country’s economy. MORE

Back to top Recycle, Reuse & Redos – A Trans Mountain update

Neb "Redo" press conference - (Photo: Kai Nagata, Dogwood BC)
Press conference with Indigenous leaders and environmental organizations following the release of the NEB’s reconsideration report, Feb. 22, 2019. (Photo: Kai Nagata/Dogwood BC)

There are a number of recent developments on the Trans Mountain file – from the reconsideration (“redo”) of the environmental assessment to unanswered questions about the federal government’s purchase price for the pipeline, and another (much quieter) NEB decision regarding rates for the existing Trans Mountain pipeline. And all of these events have made it increasingly clear that Trans Mountain is a bad deal for Canadians.

The “redo”

The National Energy Board’s (NEB) recent reconsideration report on the Trans Mountain Expansion (TMX) was, not surprisingly, a huge flop. But at least the report upholds one environmental value: the NEB recycled and reused the vast majority of its previous report, leaving 10 of the 14 chapters completely unchanged, aside from updating footnotes and changing “Aboriginal” to “Indigenous” throughout (because, reconciliation).

The “new” report (which recommended approving the project) did include one new chapter, one rewritten chapter, and minor changes to two chapters, following the 22-week NEB redo. Unfortunately, this did not ‘reduce’ the volume of the 689-page report.

The NEB’s reconsideration process was required after the Federal Court of Appeal quashed the 2016 federal approval of TMX in August 2018. The court found that the NEB’s exclusion of marine shipping from the initial environmental assessment resulted in a report so deficient that it could not be considered a valid report for the Cabinet to rely on in its decision.

The court’s ruling also held that constitutionally-required consultation with affected First Nations – a separate process from the NEB review – was “well below the standard” set by the Supreme Court of Canada.

Unsurprisingly, the NEB once again recommended approval of the Trans Mountain Expansion project, suggesting 156 conditions (one less than the 157 it suggested last time), and 16 non-binding recommendations.

As expected, the Board found that the project would likely cause “significant adverse environmental effects” on the endangered southern resident killer whales, and the Indigenous cultural use associated with them. They also found that greenhouse gas emissions from project-related marine vessels would be significant, and that a worst-case oil spill would be significant (duh). MORE

How This B.C. Activist Became The Oil Industry’s Number One Enemy

Tzeporah Berman has been instrumental in delaying or stopping 21 oil projects. Her next target: the Trans Mountain pipeline.

Tzeporah Berman Ms Chatelaine sits on a log by the ocean, looking out across the beach
Photo, Johann Wall.

Last December, environmental activist Tzeporah Berman joined thousands of activists, scientists, policy makers and industry reps in Katowice, Poland, for COP24, the 2018 United Nations Climate Change Conference. She was scheduled to present a comprehensive analysis of the increase in Canada’s oil and gas emissions. Berman has been to many such gatherings, but Katowice, located in the heart of Poland’s coal country, provided a particularly bitter lesson in the contradictory nature of climate change talks. “I would leave my hotel and walk through coal-choked streets, coughing, to get to the climate negotiations,” she says.

Once there, the irony only deepened: While Berman listened to the world’s experts on renewables talk breathlessly about price drops and leaps in technology, in the room next door, Canadian government representatives cozied up to execs from Suncor. The next day, the Intergovernmental Panel on Climate Change presented its grim Special Report on Global Warming of 1.5 C. “I’d never seen scientists like that before,” she says, “near tears, frantic and scared, saying it’s worse than we thought.”

Since she was 23, when she first helped coordinate logging protests in B.C.’s Clayoquot Sound, Berman’s mission has been to bring together political enemies (those experts and Suncor execs). In 1993, during what was dubbed “The War in the Woods,” she famously organized blockades that got her arrested and charged with 857 counts of criminal aiding and abetting (the charges were ultimately stayed). Her determination, along with testy negotiations between environmental groups, logging companies and First Nations, ultimately protected the majority of the Sound’s remaining rainforest.

In the decades that followed, Berman became known as one of the country’s most formidable environmentalists, with a reputation as a passionate but pragmatic deal maker who could nimbly balance the needs of industry, the desires of politicians and the health of the planet. MORE

Canada: Trans Mountain Decision: Application Of Existing Principles Or Evolving Standard?

Expectation  that courts will continue to place an increasing emphasis on the meaningfulness of consultation

two person writing on paper on brown wooden tableNik MacMillan@nikarthur /unsplash

In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.

In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.

Background on the TMX Project and the FCA Decision

The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE

Burnaby mayor asks premier for right to sue fossil fuel companies

Kinder Morgan
A tanker fills up at Kinder Morgan’s Westridge marine terminal. Photo by NOW FILES

Burnaby Mayor Mike Hurley has written to B.C. Premier John Horgan asking the province to create legislation allowing municipal governments to launch and join class-action lawsuits against fossil fuel companies for climate-related harms.

The letter says the city is seeking legislation similar to Bill 21 that was introduced in the Ontario legislature in 2018.

“The City of Burnaby has undertaken a series of measures to reduce carbon emissions and address climate change and its impact in areas within our control,” reads the letter. “Burnaby Council has also taken a strong position against the expansion of the Trans Mountain Pipeline because of its impact on global carbon emissions and climate change. However, the actions that are within our purview are only part of the solution.” MORE

More court challenges expected over new Trans Mountain Pipeline decision

National Energy Board to deliver its decision on reconsideration of marine effects of pipeline expansion that is meant to tap into new markets in Asia for Alberta oil

Even before the National Energy Board delivers its answer Friday on its reconsideration of the $9.3-billion Trans Mountain Pipeline expansion, opponents say there is likely to be more court challenges of any decision.

Last fall, several First Nations, including the Tsleil-Waututh and Squamish, as well as environmentalists and municipal leaders, said the expedited re-examination of marine traffic effects of the project, including on killer whales, was inadequate and could create grounds for another court challenge.


The Trans Mountain marine terminal in Burnaby. JONATHAN HAYWARD /THE CANADIAN PRESS

Among concerns was that the review’s 155-day timeline was too short and its scope was not broad enough, including that it was restricted to a 12-nautical mile strip along the coastline.

Eugene Kung, a staff lawyer with West Coast Environmental Law who has worked with First Nations in the past on court challenges of Trans Mountain, said Thursday the feeling is that the flaws of the review process have not been addressed. MORE

NEB ruling sparks new vows to stop the Trans Mountain pipeline


Grand Chief Stewart Phillip shown Oct. 23, 2018. Photo by Michael Ruffolo

Indigenous leaders and environmental groups vowed the Trans Mountain pipeline would never be built after the National Energy Board issued a second go-ahead to the federal government Friday.

Grand Chief Stewart Phillip, president of the Union of British Columbia Indian Chiefs, said it’s “ludicrous” that economic interests are considered more important than killer whales.

‘In this country, jobs are more important than justice.’ – Grand Chief Stewart Phillip @UBCIC #TransMountain #pipeline #NEB #CdnPoli

“Indigenous people are not going to stand idly by and watch the destruction of the sacred killer whale population along the coast of B.C.,” Chief Philip vowed. “The thought of killer whales disappearing … is absolutely unthinkable.” MORE

TRANS MOUNTAIN’S FEE PLAN FOR FOSSIL CUSTOMERS REPRESENTS $2-BILLION TAXPAYER SUBSIDY


Logga Wiggler/Pixabay

Canadian taxpayers will be on the hook for another $2-billion fossil fuel subsidy if the National Energy Board accepts the latest request from the federal Crown corporation that now operates the existing Trans Mountain pipeline, economist Robyn Allan reports in a National Observer exposé.

“If the NEB approves the toll application Trans Mountain has filed with it, it will shift the burden for the roughly $3 billion Ottawa paid to buy the regulated assets onto Canadians, rather than into tolls charged to shippers where the recovery of these costs belongs,” Allan writes. She discovered that “unacceptable burden” after reviewing Trans Mountain’s January 4 application for toll rates between 2019 and 2021.

“Pipeline companies make money by charging tolls to fossil fuel companies that ship oil and gas on their pipelines,” Allan explains. “Trans Mountain entered into private discussions with its shippers last fall to determine the tolls that would be charged from 2019 to 2021 since its most recent three-year settlement expired December 31, 2018. The outcome of those discussions resulted in favourable terms for the oil industry borne on the backs of hard-working Canadians.” MORE