The Tsleil-Waututh nation announced it will launch a legal challenge against the Canadian government and the National Energy Board (NEB) Friday over legal compliance and consultation with First Nations in relation to the proposed Kinder Morgan Trans Mountain pipeline expansion.

At an outdoor press conference on Tsleil-Waututh territory overlooking the Burrard Inlet and Kinder Morgan facilities, Chief Maureen Thomas said her nation has been ignored by the government throughout the Trans Mountain pipeline review process.

“Today with a heavy heart we want to announce we are going to….I don’t want to use those words…but we are going to fight,” she said.

Merle Alexander, aboriginal resource lawyer with Gowlings LLP said there are a number of “procedural errors” affecting the pipeline assessment process. “If these decisions aren’t corrected now they’ll affect the entire review process,” he said.

The Tsleil-Waututh nation will commence a legal action in the federal court of appeal, challenging a number of decisions of the NEB that include failed consultation, improper project assessment and a fundamental mischaracterization of the Trans Mountain project which involves an expanded pipeline, a terminal and increased storage facilities.

“The case is really one about legal compliance,” Alexander said. “Tsleil-Waututh is forcing legal compliance with Canadian legal law as well as enforcing their own legal government.”

Rueben George of the Sacred Trust Initiative and project manager of public engagement for the Tsleil-Waututh says the legal challenge is in the interest of all Canadians.

“The actions we take are to benefit everybody,” he said, “because Canada is making the wrong decision in supporting Kinder Morgan.”

“Since time immemorial we have been stewards of our land and we have a track record of taking care of our people.”

“I’ve had the land and waters feed my spirit. Everything we get out of the water is goodness."

“What that is over there is Kinder Morgan,” he said, gesturing over his shoulder to Kinder Morgan’s storage facilities. “What they put in the water isn’t goodness.”

In 2007 the Trans Mountain pipeline ruptured in a Burnaby neighbourhood after a road crew’s excavator accidentally hit the line. Roughly 250,000 litres of oil spilled into the community with 70,000 litres entering the Burrard Inlet.

The proposed pipeline expansion would increase the line’s capacity from 300,000 to 750,000 barrels of oil per day. The increase in capacity could quadruple the number of oil tankers moving through the inlet, from five to more than 20 each month.

Chief Thomas said the case is ultimately about taking a stand.

“We have to take a stand, stand up for what we believe is truly right. What we really believe is right for us is protecting land and waters to the best of our ability. We have to move forward in a way that we really do become aware of what is going on and not take things for granted. You have to be the one to stand up,” she said.

Thomas recounted the decline of local plants and species in the region, saying local people can no longer harvest shellfish from the once-fertile and clean waters.

“When you look at the future you have to make sure you have water, food for your family. Those are necessities. This land, area has been continually declining in providing our people food. Our people once survived from the food of this land. The animals, the plants, they are declining every day. We have to find a way to stop that decline to the best of our ability.”

The Tsleil-Waututh have worked for years to rehabilitate and lessen their impact on the local area. They’ve introduced wind power, salmon rehabilitation projects and have reintroduced elk to the hillside.

“We’re not people that fight,” Thomas said, “but we want to protect and respect these lands.”

Image Credit: @kingcornevj via Twitter

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This post is second in a series on the Canada-China Investment "Straitjacket:" Exclusive Interview with Gus Van Harten. You can read Part 1 here and Part 3 here.

Right now Canadians stare down the barrel of a 31-year long legal trade agreement with the Chinese government that did not become public knowledge until September 26, 2012.

The trade treaty, known as the Foreign Investment Protection Agreement or FIPA, has garnered notable opposition in the past three weeks, with NDP trade critic Don Davies calling for public hearings, Green Party MP Elizabeth May calling for an emergency Parliamentary debate, and campaign organizations Leadnow.ca and SumofUs.org gathering over 39,300 opposition signatures (and counting) to deliver in person to Ottawa.

Yesterday, the Canadian Press reported the Harper government's refusal to host public hearings. Elizabeth May's October 1 request was also denied on the grounds that FIPA does not meet the test of emergency.

The trade agreement, or treaty, as it is called, is slated for ratification at the end of this month. The Commons trade committee will be briefed on the document in a one hour hearing.

With a trade deal that threatens Canadian sovereignty looming on the horizon and a government committed to expediting its approval, DeSmog caught up with trade investment lawyer and Osgoode professor Gus Van Harten to talk through some of the details.

In this segment Van Harten discusses why the Canadian government would pursue a deal of this sort, outlining the implications of the agreement for environmental legislation in Canada and development in the tar sands, especially in light of the spring's Omnibus budget bill C-38.

[view:in_this_series=block_1]

Van Harten also considers the implications of the trade agreement for undecided energy projects like the Northern Gateway Pipeline and, significantly, if first nations and environmental groups were to blockade projects of this sort – who's rights the government would be obliged to protect. 

Below is Part 2 of our interview:

Carol Linnitt: As you have described it, it doesn't seem to make much sense for Canada to sign this agreement.

Gus Van Harten: I can tell you – trying to think about why the government would sign the China-Canada deal – it’s very unfavourable to Canada because of the way in which, as I was saying earlier, we have an open economy and China’s is closed, so the deal really, in fact appears likely to benefit Chinese investors far more than Canadian investors in China, because there will just be more Chinese investment here, because we’ve allowed more in. But I was trying to think why the government might do it, well I thought of different reasons, one might be that they sort of want to score the political bragging rights, of, ‘we signed the deal’, which is, you know, very short sighted, but sometimes governments are kind of shallow like that.

Another explanation would be that they want to open up the economy to this investment, and so that shareholders in Canadian companies in the oil patch can sell their shares at a premium to the Chinese, and get that benefit.

But another more troubling explanation which would require greater sophistication by the government but is not – certainly shouldn’t be ruled out – is that they foresee changes in attitudes about the oil patch, in the United States, in Canada, and that this may lead to new regulations on the oil patch, in that, climate can’t just be wished away forever, and that governments might take steps to regulate the oil patch in ways that investors wouldn’t like.

If you bring in a lot of Chinese investments, and you sign the Canada investment deal, you kind of get the Chinese investors to do your dirty work for you, for years after the current government is gone, because the Chinese investors can beat up on new governments that actually do take steps to change the balance between the investor rights in the oil patch and the general interest in addressing climate change or other issues like pollution and so on.

CL: Wow.

GVH: So that’s probably the most troubling aspect, is that this is designed to be a straitjacket, and it will have effect on Chinese investments that have been let in for the next 31 years after the deal’s been signed. Because the deal has a 15 year term, you have to give another year’s notice to terminate the deal and then after it’s terminated it still applies for another 15 years for investments that are in the country at the time of termination.

CL: So you’re saying that this deal has an active shelf life of 15 years, but stays in effect for 31 years?

GVH: Yes, the treaty does, meaning the treaty will be available to protect Chinese investors, including not just the Nexen investors, if they’re allowed to buy Nexen, but any other Chinese investors who come into the oil patch. I don’t think the government wants to see the whole oil patch Chinese owned, but I think it’s quite likely we’ll see significant portions of it Chinese owned, and once significant portions are Chinese owned, the you’ve also given lawyers who work for the Chinese investors this powerful tool to beat up on governments anywhere in Canada, you really frustrate the ability of Canadians to elect governments that are going to get more serious about the environmental consequences of the oil patch. That will be for 31 years from the date of this deal coming into effect, which is right now forecast to be about a two weeks away.

CL: And what’s the significance of that for, say, something like the northern gateway pipeline project that’s still in decision process?

GVH: Well, I mean, first of all, if that pipeline is owned, if foreign investors are spending money in relation to the proposed pipeline, then they right there could conceivably use the China-Canada deal to object to decisions taken by Canada, for example the British Columbian government, in objection to the pipeline. So the BC government may say ‘we don’t like the deal for the pipeline, we won’t supply electricity to it,’ well if they did that and the pipeline had Chinese money in it, the Chinese investors could say ‘you are discriminating against us, you don’t treat other investors in pipelines the same way in BC, so why are you discriminating with this pipeline, you’re not allowed to do it, and any money we lose as a result, you have to compensate us. You, Canada.’

And that’s not just the money that they put into the pipelines, they that’s their lost profits, that’s the money that otherwise reasonably would have earned, had this pipeline gone forward.

CL: I’m thinking about how tenuous the situation has already become in terms of environmental regulations after the Omnibus budget bill was passed and we saw a severe weakening of our environmental reviews and assessments and regulations. In effect the Harper government has instituted this new legal framework in which our pre-existing environmental laws have been weakened, gutted and now we are introducing this new 'straitjacket' to maintain those laws because of the possible difficulty of ever reinstituting them in stronger ways.

GVH: Yes, exactly, and let me spell it out very precisely. In many cases the arbitrators have allowed the investors to argue under the treaties that their treatment by the government was unfair and inequitable, if the government did not provide a stable regulatory framework. So if the regulatory framework is in a particular state, let’s say its currently denuded state because of the changes in the spring budget to environmental legislation, investors from China now say ‘well, we’re going to invest now because we don’t think any of our projects will be subject to environmental assessments and fisheries act regulations’, and so on. A new government comes in when the projects are underway, and says, ‘well actually we’re putting the laws back in place’. The Chinese investor can then say 'ah, but you can’t because we made our investments based on an expectation that there was a stable regulatory framework and that the previous government promised us that that regulatory framework would be stable’.

And so you can’t change the laws so easily. I’m not saying that the arbitrators necessarily would, but many have, interpreted the treaties broadly enough to allow the Chinese investors to receiver full market compensation in those circumstances from the new government due to a change in the regulatory framework. And, in a way, some of the things that the Harper government has done, I understand second hand – but have not confirmed this myself – that one of the ministers, I think Joe Oliver, had said at press conferences that they were changing the environmental laws because that’s what the investors wanted. If he did in fact say something along these lines, the he could have done nothing more to feed the arguments to the  investors’ lawyers down the road, if a new government decided to put the laws back in place. Because Chinese investors would be able to point specifically to his statements, which would be statements on behalf of Canada, that Canada was prepared to remove its environmental laws in order to bring in Chinese investment because that’s what investors wanted. It almost becomes part of the deal. A new government can reverse that decision, but they will have to pay for it.

CL: Well, that is astounding to hear.

GVH: Yeah, it’s kind of disheartening to those who care about, let’s say, protecting the environment for future generations. But on the other hand, the system has invoked very strong reactions by some countries, and increasingly governments that don’t put investor rights ahead of the rights and interests of everyone else are taking steps to unplug the system as best they can. But the decision to allow the China-Canada investment deal to come into effect will have the greatest impact on Canada’s ability to take sovereign decision with respect to its resource sector since any treaty we have signed since NAFTA. And it is comparable to NAFTA in terms of the effect that it will have. Yet it does not allow any access by Canadian exporters to the Chinese market, unlike NAFTA for the U.S. market. For this reason, it seems to be just a very lopsided deal for Canada.

CL: And this is why the conversation that you see coming, even from conservatives, expressing concerns about the fact that China is not a benevolent nation, that this is why that statement is so significant. They’re not talking about whether these are nice guys or not. This is a much more meaningful and significant thing to say about a county like China when you’re preparing to engage in this kind of deal.

GVH: Well let me give you another example. Under the treaties investors are entitled to something called ‘full protection and security’. Now what that has been interpreted by arbitrators in some cases to mean, among other things, that the government has to protect the investors’ property, assets, from public opposition and public protest. So let’s imagine that there are blockades of the pipeline as it’s being built through British Columbia, let’s say by native groups and by environmentalists. The Chinese will have an expectation, backed by the treaty, that the Canadian government through its police, through the courts, will take strong steps to protect the Chinese investors’ business plans from public opposition.

Now, sometimes public protests in opposition to foreign investments in other countries, I’m thinking in particular of a couple of cases in Latin America, one involving oil drilling in the Amazon by Texaco and then Chevron, and the other involving the disputes over a privatised water system in a city in Bolivia, some of those protests have actually led to violence, people have died, and that becomes part of the context for the arbitrators deciding whether the governments’ protection of the investor were sufficient. So it’s a concern, and I think it’s fair to say the Chinese investors may have a different view of how to handle that kind of situation from what we’re used to in Canada.

CL: And suddenly the onus is placed on the federal government to uphold this agreement, and their loyalty will in some sense be split between preserving this agreement that they have with the company and also protecting the rights of the citizens.

GVH: Yes, exact. So the question that the government will now have to face is, how is it going to balance its obligations to respect Canadian democratic protests, including when it’s actually effective in frustrating a pipeline, to balance that against its new obligations to provide full protection and security, backed by a very powerful international arbitration process, which tends often to favour the investors in its legal approach, and to provide that full protection and security under the treaty to Chinese investors. That’s the question the government will now have presented for itself.

[END OF INTERVIEW PART 2]

Gus Van Harten has written extensively on foreign investment deals. His research is freely available on the Social Science Research Network and International Investment Arbitration and Public Policy website.

Stay tuned for Part 3 of my interviews with Gus Van Harten.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

As the Northern Gateway Pipeline Project Joint Review Panel begins hearing over 4,000 comments submitted by community members, First Nations, governments, and environmental groups, the tar sands front group EthicalOil.org has launched its latest PR offensive in support of the pipeline.

OurDecision.ca, the new astroturf ad campaign, is another dirty PR attempt to undermine the real and growing grassroots opposition to Big Oil’s plans to ram through this destructive pipeline. 

The controversial Northern Gateway project is opposed by 70 First Nations and a majority of British Columbians, who fear the inevitable oil spills that will accompany tar sands expansion, and in particular the threat of offshore tanker accidents on BC’s coast.

Viewers of Ethical Oil’s disingenuous new ad campaign aren’t being told about the intricate web of industry influence peddlers behind the effort and their connections to the Harper government and oil interests. In the middle of this web is Hamish Marshall, a Conservative strategist deeply connected to oil interests as well as both the Conservatives and ultra-right wing Wildrose Alliance Party. In this case, the lines between politics and big business interests are so blurred, it is nearly impossible to distinguish them.

OurDecision.ca is the Ethical Oil Institute's attempt to dupe northern BC citizens into supporting the Northern Gateway pipeline and tanker infrastructure, claiming that it’s “our choice” as Canadians to exploit the tar sands and pipe it to foreign export terminals. The fact that the oil boom will actually enrich foreign investors from China, Europe and the multinational oil companies with a major stake in Alberta oil patch is nowhere to be seen in Ethical Oil’s propaganda. (The hypocrisy of their arguments here is reminiscent of their previous attempt to claim the mantle of women's rights to greenwash the tar sands.)

Since the overwhelming public opposition to the project is hard to argue with directly, Ethical Oil decided to change the subject entirely by claiming a foreign conspiracy because some of the environmental organizations working to oppose tar sands expansion receive funding from U.S. foundations. 

Stephen Harper was quick to echo EthicalOil.org’s talking points by decrying the foreign influence that is “overloading” the Northern Gateway review process. Natural Resources Minister Joe Oliver took a page from Harper's playbook, writing that environmental groups "threaten to hijack our regulatory system to achieve their radical ideological agenda," using funding from "foreign special interest groups."

The “foreign special interests” in question are progressive American foundations that fund a wide range of initiatives: from education and infrastructure in developing countries, to the performing arts and urban poverty in North America and around the world.

Since climate change recognizes no political borders, the foundations have supported the efforts of a wide range of Canadian and American groups to raise awareness about the consequences of expanding tar sands development. This is a global issue, no doubt about it, and that's why people from all over the world are watching Canada and weighing in on this. Tyler Mccreary covers this point well today at Rabble.

Yet, Ethical Oil's OurDecision.ca website refers to these foundations and environmental groups as “foreigners and their local puppets.”

ETHICAL OIL? 

Ethicaloil.org is a classic case of dirty energy industry astroturf. Visit OurDecision.ca’s donation page, and you’ll be linked to a PayPal account for the Ethical Oil Institute. As previously noted, the Ethical Oil Institute was incorporated to the Edmonton law firm McLennan Ross, which has many tar sands industry clients.

The Ethical Oil Institute's Board of Directors has two members, Ezra Levant (the creator of the 'Ethical Oil' myth) and Thomas Ross, Levant’s lawyer and a McLellan Ross partner. Thomas Ross is also one of ten lead partners in McLellan Ross’s OilSandsLaw.com initiative, a “slick new oilsands cross-selling strategy" and marketing campaign.

But that's just the beginning of the connection. The websites of both OurDecision.ca and EthicalOil.org are hosted on exactly the same server and IP address as strategicimperativesonline.com. Normally this wouldn’t be surprising – it's common for many websites to be hosted on the same server. But this isn't a coincidence. Strategicimperativesonline.com is registered to GoNewClear Productions, a business incorporated in British Columbia to Travis Freeman, Brendan Jones, and Hamish Marshall.

WHO IS HAMISH MARSHALL?

Hamish Marshall is the President and COO of GoNewClear Productions. He is a well-known strategist and activist trainer within Conservative circles, and also served as one of two British Columbia representatives on the federal Conservatives' national council between 2008 and 2010.

He started his political career working for Canadian Alliance MP Joe Peschisolido from 2001-2002, and for the Conservative Party doing outreach for the Office of the Leader of the Official Opposition from 2002-2003. He then left his position at the Conservative-Party connected NaiKun Energy in 2006 to work in the Prime Minister's Office as Harper's Manager of Strategic Planning until September 2007. In 2008, he managed polling for the Conservative re-election campaign.

The Ethical Oil-Harper government revolving door doesn’t end there. Hamish Marshall is married to EthicalOil spokeswoman Kathryn Marshall, who took over last fall when her predecessor Alykhan Velshi moved into the Prime Minister’s Office as the director of planning.

Hamish Marshall, through strategicimperativesonline, has registered 32 websites. Nearly all are connected to EthicalOil.org, the Conservative Party of Canada, and the right wing Alberta Wildrose Alliance Party.

Both ethicaloil.org's americans4opec.com and chiquitaconflict.com are hosted on the server, as is Kathryn Marshall’s personal website, kathrynmarshall.ca.

DEEP TIES TO CONSERVATIVES

The web gets really interesting when you look at the other sites registered on Marshall's server.

Conservative Party candidates with websites hosted on Hamish Marshall’s server include Natural Resources Minister Joe Oliver, one of the most vocal proponents of the tar sands. Oliver's open letter last week refers to the "environmental and other radical groups that would seek to block this opportunity to diversify our trade". See the WhoIs profile for www.JoeOliver.ca.

Pierre Poilievre's www.ResultsForYou.ca website is hosted on the strategicimperativesonline server as well. A Calgary-school graduate, Poilievre is Harper's former Parliamentary Secretary, and is currently the Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities. Poilievre also worked for Jason Kenney, whose site www.JasonKenney.com is hosted on the same server. 

Former EthicalOil.org spokesman Alykhan Velshi used to serve as the Director of Communications for Kenney. And Velshi's mother, Rumina Velshi, was just appointed by John Oliver to the national nuclear safety commission, raising ethics questions among critics. 

For the pro-tarsands Wildrose Alliance Party, Hamish Marshall hosts both the official party websites, wildroseallancecaucus.ca and wildrosecaucus.ca, as well as numerous Wildrose Party candidate websites. This includes former leader Paul Hinman, and candidates Doug Cooper, Corrie Adolph, Dave Yager, Heather Forsyth, and Richard Dur. Dur is also the Chairman of Policy for Jason Kenney’s Conservative Party constituency association.

Toronto City Councillor John Parker's website is also hosted on Marshall's server. 

Back in BC, Marshall hosts the website of former BC Liberal candidate Kevin Falcon. After working on Falcon’s unsuccessful run for BC Premier, Marshall went to work for BC Conservative leader hopeful John Cummins as his campaign manager. His website is also registered on Marshall’s server. Hamish Marshall is now one of the directors of the BC Conservative party. 

Finally, Marshall’s server hosts a website that makes campaign signs for Conservative MPs, as well as the website of the Ontario Progressive Conservative Association (OPCCA), the campus youth wing of the PC Party of Ontario is hosted on this server (campuspc.ca).

This is certainly only the beginning of an expansive web of connections between EthicalOil.org and the Conservative Party. The dizzying connections between them suggest that EthicalOil.org and the Ethical Oil Institute are acting as shadow arms of the Harper government and its desire to protect tar sands interests ahead of the public interest.

(Update: See DeepClimate's extensive look at this entangled web.)

What is most disingenuous about EthicalOil.org’s campaign is its work to systematically discredit the hard-working individuals in the Canadian environmental movement who work to protect public health, robust ecosystems and the global climate from the tar sands threat. The real threat to Canadian sovereignty is the greedy foreign corporations and governments buying up financial stakes in the Alberta oil patch, and EthicalOil.org’s support of them.

Ask yourself: who are the real patriots in this scenario?

Will the Harper government and ethicaloil.org own up to their cozy connections and finally recognize the importance of a rapid transition away from an oil-addicted economy towards a clean energy economy that relies on the robust, renewable resource of Canadian ingenuity and sustainability know-how? The clock is ticking.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.