Ian Anderson, president of Kinder Morgan Canada Ltd., must be laughing all the way to check on his stock options since the Trudeau government offered to use public funds to bail out the company’s stalled Trans Mountain Pipeline Expansion project.

Anderson earned almost $2.9 million last year in salary, stock awards and other compensation, according to company documents — and that was only from June through December.

Kinder Morgan Canada’s vice-president, David Safari, collected $1.95 million in stock awards and other compensation during the same seven-month period.

But that’s latte money compared to the hundreds of millions of dollars in annual dividend earnings of Texas billionaire Richard Kinder, who was the CEO of parent company Kinder Morgan Inc. until 2015.

Wednesday night, in its quarterly financial report, Kinder Morgan Inc. announced results so strong it beat its own rosy forecast for the first segment of 2018.

With US$80 billion in assets, cash is flowing and North America’s largest energy infrastructure company — which owns 70 per cent of Kinder Morgan Canada — is back in growth mode.

“Kinder Morgan Inc. Starts 2018 Off with a Bang,” read Thursday’s Yahoo Finance headline.

Yet Canadian taxpayers will be the ones to feel the biggest whomp if Prime Minister Justin Trudeau and Alberta Premier Rachel Notley follow through on new promises to back the project financially, with Trudeau calling the Kinder Morgan pipeline a “vital strategic interest” for the country.

Notley even suggested earlier this week that her government might buy the pipeline outright if Kinder Morgan opts to abandon the $7.4 billion project once the corporation’s May 31 deadline for resolution of the fractious inter-provincial dispute has passed.

Oh happy days for Kinder Morgan’s millionaires.

Ian Anderson, president of Kinder Morgan Canada, earned almost $2.9 million between June and December alone. That’s latte money compared to the hundreds of millions in annual dividend earnings of Texas billionaire Richard Kinder. https://t.co/HaZQM4rVPF

— DeSmog Canada (@DeSmogCanada) April 20, 2018

Aaron Wudrick, federal director of the Canadian Taxpayers Federation, said it is a “terrible” idea for Canadians to “bail out — apologies, ‘invest in’ ” — the profitable Houston-based corporation that owns 137,000 kilometres of pipelines and 152 terminals.

“This is not appropriate,” Wudrick told DeSmog Canada. “There is absolutely no reason public money should be going to these companies.”

Which companies? Well, Honda, for one. Last year, the Japanese conglomerate received $84 million in taxpayer funding.

And Bombardier, the world’s leading manufacturer of planes and trains, has been diving deeply into the public trough for years, even though the Bombardier family that controls the company is among Canada’s richest and the company’s top executives, already earning millions a year, were offered a hefty pay hike after a $1 billion infusion of public money last year.

“This is very offensive to most Canadians,” Wudrick said. “If people in the private sector are going to make a lot of money, it’s their own money and their own business and good for them. But taxpayers should not be funding the salaries of these executives.”

The high salaries of Kinder Morgan executives are “just one illustration” of why the company should not receive any public money, said Wudrick, who supports the pipeline while opposing a taxpayer bailout.

He believes that Trudeau and Notley have made a strategic mistake by saying how desperate they are to build a pipeline to carry product from Alberta’s oilsands to tankers on B.C.’s coast.

“Kinder Morgan now knows that, and I think frankly they’re going to drive a hard bargain. They essentially have the premier of Alberta and the prime minister of Canada by the throat and they can say ‘unless you pay us x dollars, we’re going to back out.’ ”

“That’s a very bad negotiating position for government.”

So far it looks like the big winner of the inter-provincial brawl is not B.C. or Alberta but Kinder Morgan, which appears to be emboldened by the discord.

Duff Conacher, a founder of the civic organization Democracy Watch, called Kinder Morgan’s new May 31 deadline for resolving the conflict “an attempt at extorting a step forward” that should be rejected.

“If the pipeline is such a great idea and it’s profitable, and if Kinder Morgan decides they are not going to build it, based on their completely artificial May 31 deadline, then presumably some other company will step up and build it,” Conacher pointed out in an interview.

“Why should the government jump into the market on behalf of one company?”

Those advocating for an infusion of public money into the Kinder Morgan pipeline claim the project is a guaranteed moneymaker, even though oil shipments from the existing pipeline to the lucrative Asian market have dwindled and most tankers leaving the Port of Vancouver now head south to California.

If twinning the pipeline does make sound financial sense, Wudrick also said another company will come forward to complete the project, which will triple the existing pipeline’s capacity and involve construction of 12 new pump stations, 19 new storage tanks and three new marine berths located at the Westridge Marine Terminal in the Burrard Inlet near Vancouver.

Federal officials said Thursday that the offer of financial assistance would extend to other companies if Kinder Morgan decides to walk away.

Conacher, a lawyer, academic and internationally recognized leader in the areas of democratic reform and government accountability, said it is up to the courts to decide what is in the national interest, based on the law and evidence.

“What is in the national interest is a question of law. And the government should not be taking steps to help a company do something that the government says is in the national interest until the Supreme Court of Canada has defined what that means.”

He said building the pipeline is unquestionably in the short-term interests of Alberta.

“But I don’t think the national interest is based on the short-term interest of one party in one province.”

The B.C. government announced this week that it will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, putting the much-debated constitutional question to the test.

The appropriate timeline for a final decision about whether or not to proceed with the Kinder Morgan pipeline should be the timing of a legal ruling, Conacher said, and not Kinder Morgan’s self-serving corporate deadline.

“If Kinder Morgan doesn’t like it then they can leave.”

Wudrick said other foreign corporations are watching the unfolding pipeline drama closely.

Canada needs to be a country that is welcoming to business, he said, adding that it is a very different matter and a “very expensive proposition” to subsidize businesses with public money.

“It will only attract the wrong kinds of business, the businesses that are interested in sucking money out of government rather than trying to make money in the marketplace. The fact that both the premier of Alberta and the prime minister have been so quick to offer of up taxpayers’ money sends a very dangerous signal.”

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With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.

Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.

“[B.C.] can enact constitutionally valid legislation when it comes to protecting the environment, as long as it’s not specifically targeted at a federal project like the Kinder Morgan pipeline,” Stacey told DeSmog Canada.

“A court’s going to have to take a look at that to make sure that that legislation is actually with respect to the environment, not in relation to a federal undertaking,” Stacey said.

“The question that arises after that is: well what happens if that provincial legislation, even if valid, conflicts or would impair the pipeline?”

This is the question the courts will try to answer with B.C.’s reference case.

“The court needs to have the actual content of those regulations so that it can discern whether those regulations are valid and then, assuming they’re in relation to the environment, being able to assess whether or not they would impair the pipeline project,” Stacey said.

The specifics of the regulations are not yet available, but in January B.C. announced a proposal to restrict the transport of diluted bitumen until a scientific inquiry into the impacts of a spill could be completed alongside a proposed new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

‘The constitution at work’

Stacey echoed comments made to DeSmog Canada last week by Jack Woodward, who drafted Section 35 of the constitution on aboriginal rights.

“They’re not getting how the constitution works,” Woodward said in response to statements by Alberta Premier Rachel Notley and Prime Minister Justin Trudeau implying B.C.’s actions are illegal or unconstitutional.

“It’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

Stacey called the debates over the pipeline “the constitution at work.”

“Every major development project is subject to both federal and provincial legislation, as well as local bylaws and in some cases Indigenous law as well,” she said.  

Most things regulated by multiple levels of government

Most things in Canadians’ daily lives are regulated by multiple levels of government and pipelines like Kinder Morgan Trans Mountain are no different.

Stacey points to pesticide use as an example of something that is regulated by all three levels of government in a compatible way.

“The most restrictive level of regulation in many cases is at the local level, where many municipalities have bylaws that prohibit the use of cosmetic pesticides,” Stacey said. “And because that doesn’t conflict with any higher level of government, all three levels of regulation are still allowed to exist and operate harmoniously.”

But what happens when different levels of governments are feeling less harmonious?

The billion-dollar question now is: what kind of regulations can B.C. come up with that don’t cross the line into “impairment” of the pipeline?

One example would be implementing additional permitting requirements.

“So in order to increase the transport of bitumen, any prospective transporter would have to submit certain documentation and fulfill certain reporting requirements about emergency response for example before the province would grant an approval,” Stacey said.

That type of legislation would build on the B.C. Supreme Court’s decision in the Coastal First Nations case against the Enbridge Northern Gateway pipeline, where the court recognized that the pipeline disproportionately affected B.C.’s interests.

In that case, the province of British Columbia and Enbridge Northern Gateway were ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations. The B.C. Supreme Court found the province erred when it signed an agreement that granted environmental decision-making authority for the pipeline to the federal government.

The concern over bitumen spills was also addressed in the National Energy Board’s conditions for the approval of Trans Mountain.

“One of the conditions … that Kinder Morgan has to comply with under the NEB approval is it has to satisfy the NEB that it can and is prepared to clean up a bitumen spill in any environment under any conditions before the pipeline is allowed to start operation,” Stacey noted.

“This isn’t something that B.C. is coming up with out of thin air. This is actually a problem that’s been recognized by the NEB and has been agreed to by Trans Mountain in moving forward with this project.”

Which leads us to the next billion-dollar question: can Kinder Morgan prove it can clean up a bitumen spill, given the lack of basic research on the issue?

“Even if B.C. can’t impair the operation of the pipeline, it might be that by moving forward with some conditions, it can access information that it doesn’t otherwise have access to that would allow B.C. to better prepare for a spill response.”

During the National Energy Board review, Kinder Morgan refused to provide its oil spill response plan to the B.C. government, citing security concerns.

“It goes back to a dissatisfaction with the NEB’s process in evaluating the pipeline and I think a concern that the NEB is not going to be a regulator that sufficiently protects B.C.’s environmental interests,” Stacey said.

“B.C. likely wants to have a little bit more control and insight over pipeline operation.”

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In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.

“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”

In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.

In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.

“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to limit the transport of diluted bitumen through the province in January.

“She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”

Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.

“But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.

Indigenous rights are not a footnote in the ongoing constitutional saga over the the Kinder Morgan Trans Mountain pipeline — they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.

Beyond Indigenous rights, landmark rulings such as the Tsilhqot’in decision have emphasized something called “co-operative federalism.”

“The modern trend of federalism is that nobody has the upper hand — and everyone has to work it out,” Woodward said.

Prime Minister Justin Trudeau’s statements on the Trans Mountain pipeline also seem ignorant of that reality.

“Look, we’re in a federation,” Trudeau has said. “We’re going to get that pipeline built.”

But Canada’s constitution governs by the principle that you err on the side of allowing two different laws to exist if at all possible, Woodward says.

“So it’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

United Conservative Party Jason Kenney may opine that the inability of a Texas-based company to build a pipeline means “Canada is broken,” but in reality, this is exactly the way federation was designed to work.

“It’s simply not credible that all aspects of provincial constitutional jurisdictions can be crushed by a federal pipeline law,” Woodward said. “Some of them must prevail.”

A law clearly directed at protecting the health and safety of the residents of Burnaby and Vancouver would be a strong law within provincial jurisdiction, Woodward said.

“Just because the federal government has jurisdiction over pipelines doesn’t mean that they can sterilize the provincial jurisdiction over health and safety.

“Similarly, protection of the land and marine environment, that’s pretty potent. The protection of habitat for fish, even preventing oil spills because of the devastating impact it would have on tourism — that’s valid provincial legislation.”

Woodward said instead of throwing the constitution around as if it’s a “political slogan,” everyone is better off to let the courts do their job.

“Horgan is right to have this calm and patient attitude because what’s the point of jumping up and down and screaming ‘I’m right, you’re wrong’? It’s going to be decided by a judge.”

On Thursday a summit between Notley, Trudeau and B.C. Premier John Horgan was announced for this Sunday. Horgan vowed not to back down on preparing a court reference.

“We are in a court of law, which is what civilized people do,” Horgan said. “I don’t feel there is any need for sabre-rattling or provocation or threats. I will defend to the end the rights of British Columbia to defend our coast.”

What about Notley and Trudeau, who don’t seem to want to wait for a court ruling?

“Short of going to court, politicians can get legal advice and their legal advice will be the same as what I’ve said to you, which is there’s no black and white here. This is a grey area. It’s a series of grey areas, where the different aspects of federal and provincial jurisdiction and aboriginal rights collide.”

It’s unreasonable to expect these conflicting rights to be resolved by the end of May.

“When I hear Kinder Morgan having a little hissy fit and saying they want a decision by the end of May, I just laugh,” Woodward said. “You can’t decide all of these things by May. This is an irreversible decision, so it should take some time.”

As for the oft-repeated belief that what B.C. is doing is illegal or unconstitutional, Woodward says “if that’s the prevailing wisdom, they’re all wrong. They’re not getting how the constitution works.”

“Everything in Canada is moderated. You don’t have absolute rights,” he added.

What’s more, Woodward said the federal government’s jurisdiction over interprovincial pipelines needs to be seen in the context of the times.

“When that power was given to the federal government, it was not contemplated that there would be such enormous environmental consequences. They didn’t even think about climate change, for example. They didn’t think about catastrophic oil spills and tanker traffic. They were just trying to clear up regulatory clutter, so that one jurisdiction could create a uniform regulatory system. It was never intended that the federal jurisdiction over interprovincial pipelines would utterly trounce the underlying provincial jurisdictions over health and safety and property rights and the environment.”

As for the notion that Canada is in a constitutional crisis, Woodward disagrees.

“We have one of the oldest written constitutions in the world. It has survived far worse crises than this and it will survive into the future. Our constitution has embedded into it flexibility, ability to change, a fundamental ability to grow with the times,” he said. “There’ve been far worse constitutional crises.”

Woodward pointed to the time in the 1930s when the entire banking legislation of Alberta was struck down by the Supreme Court of Canada as an example.

“Now that’s a constitutional crisis much worse than this,” he said. “This pipeline already exists and we’re talking about expanding it. Alberta has taken a matter of degree and decided to characterize it as a fundamental point of principle or point of departure and they’re simply wrong about that. It’s not a constitutional crisis.”

The bottom line is that this pipeline punch-up will ultimately get resolved in typical Canadian fashion, according to Woodward.

“It’s all going to be worked out through the standard Canadian process of compromise.”

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Reflecting on his long struggle against South African apartheid, Nelson Mandela said, “One effect of sustained conflict is to narrow our vision of what is possible. Time and again, conflicts are resolved through shifts that were unimaginable at the start.”

The Kinder Morgan Trans Mountain pipeline expansion is not apartheid — let’s get that off the table right away. It’s a pipeline. But in its sustained, divisive nature, in the way in brings up hard constitutional questions and emotional responses while deepening political entrenchment, the very debate over the pipeline is worth considering in its own light.

“Debate” might not even be the right word at this point. When one side is being arrested for opposition while the other is worried about their ability to operate within the basic Canadian principles of peace, order and good government, this has become something deeper and less flexible than a debate.

How did we get here?

“What mobilizes or activates our defences is almost always that there’s enormous fear,” Renee Lertzman, an expert in the psychology of environmental education, told DeSmog Canada. “The tendency to go towards polar positions and black-and-white is a well-known defence mechanism.”

In the Kinder Morgan debate, the parties talk past each other like a bickering couple; the values and even the realities from which they’re speaking are driven further apart with each new rhetorical volley.

Andy Hoffman, a professor of sustainable enterprise at the University of Michigan, describes scenarios in which two opposing sides talk past each other as a “logic schism.”

“In a logic schism, a contest emerges in which opposing sides are debating different issues, seeking only information that supports their position and disconfirms their opponents’ arguments,” Hoffman told the University of Michigan Record. “Each side views the other with suspicion, even demonizing the other, leading to a strong resistance to any form of engagement, much less negotiation and concession.”

For Lertzman, the solution to the seemingly intractable problem of where to go from here — or at least how to talk about it — is to start by recognizing the fear and concerns others have.

“You don’t just start with attack, you actually acknowledge this might seem like the right thing to do,” she says. “Without that acknowledgment, it’s very hard to break through.”

So what is that fear?

Here’s a cheat sheet; it’s not a perfect representation of everyone’s fears within the groups, plus, there are subgroups, and there are entire factions that aren’t included. But if you’re firmly embedded in any side of this debate, take a moment to consider the following.

For some First Nations, the fear is that their constitutional right to decide for themselves how their land is used is being trampled upon and that their sources of food, water and cultural practices are being compromised as a result. It wouldn’t be the first time: we live in a country that has routinely ignored First Nations’ rights for its entire history and only now are many of their cultures beginning to recover and regain control over their lands and resources.

Free, Prior & Informed Consent means #FirstNations have the right to say yes or no & to determine conditions for development in their territories. Together we must arrive at a process that respects rights, title, #FPIC and #UNDRIP. #TransMountain #KinderMorgan

— Perry Bellegarde (@perrybellegarde) April 10, 2018

Many Albertans fear their ability to grow their economy and provide for their families is being limited by their intransigent neighbours. This is a province with a strong dependence on one resource, and which is only beginning to recover from an oil-price shock that devastated its economy in 2014.

Alberta is a province of warm hearted people who fundamentally believe in the balance between resource development and responsible environmental stewardship. Every day that @JustinTrudeau allows #KinderMorgan to be stalled is a day he hurts the people of this province. #ableg

— Kristin Raworth (@JC4ever) April 8, 2018

Many British Columbians worry that their invaluable coastline and coastal economy is being put further at risk to benefit foreign corporations, while they have no say in what level of risk they are willing to accept. Many are also more wary of the impacts of climate change than Albertans are, and see the pipeline as a mechanism that will ramp up emissions.

.@JustinTrudeau‘s government has a choice: They can stand up for Canadians protecting their coast, or a Texas pipeline company protecting its investors. https://t.co/uhXB2bjOTX #cdnpoli #kindermorgan #notankers

— Dogwood (@dogwoodbc) April 10, 2018

For some Canadians outside of the affected provinces, the fear is that authority over important infrastructure is now more of a question than a statement; for others, it’s that growth of the oilsands, and its associated emissions, will be locked in for another 50 years at least.

This is a clear challenge to federal jurisdiction. It leaves the federal gov’t with no choice but to assert its authority. If the BC Gov’t’s position is let stand, it means activists & the politicians who support them can simply ignore the rule of law. 1/2 https://t.co/UkanVzf1la

— Perrin Beatty (@PerrinBeatty) April 9, 2018

What is the common theme? Agency. Everyone fears that the people and institutions they care about have no say in what happens to their resources, their livelihoods, their climate, their rights, their backyards.

When Prime Minister Justin Trudeau said that this pipeline “is going to get built,” in a distant echo of his father’s famous “Just watch me” moment during the October Crisis, he’s speaking as someone who is trying desperately to reassure Canadians that the government, at least, has agency over projects that happen within the country.

“That surprised me because it’s not the sort of thing politicians normally say,” Adam Kahane, a conflict-resolution expert credited with helping to end Colombia’s civil war, told DeSmog Canada.

“What’s interesting to me about all the people who are saying ‘it’s going to be like this’ is what is their power to impose the solution they want? Does the federal government have the power? Constitutional, regulatory, financial or, in an extreme situation, with security forces?

“Does the government of Alberta have the power, including through the trade sanctions that have been discussed? But similarly, do the opponents have the power — legal or political or through their willingness to protest and be arrested? Does anybody have the power to impose the solution they want regardless of the others? And if not, who is going to negotiate?”

In his latest book, Collaborating with the Enemy: How to Work with People you Don’t Agree With or Like or Trust, Kahane outlines four choices when it comes to working with others: collaborate, adapt, force or exit.

Forcing a solution, either through legal, economic or even police or military means, usually doesn’t result in a stable situation, he says.

“That’s the problem with forcing, is it tends to be temporary. Eventually, the people who were on the losing side of it find a way to get back in the game.”

Kahane brings up the Mandela quote to illustrate that this doesn’t need to remain the way things are: gridlocked, escalating and fearful among all the parties, or, as he described them “wholes” with their own realities and concerns.

“There are lots of different ways to do things and I don’t know whether a solution that works for more of the wholes can be arrived at, but stating that it either has to be my way or no way doesn’t move us forward much.”

The debate isn’t going to return to normalcy on its own, and if Kahane is right, that’s especially true if the government decides to use forceful means to make it happen. It’s going to require a great deal of empathy, a cooling of rhetoric and an acknowledgment that most of the arguments flying around come from a genuine place of concern and of love for one’s home.

As Mandela himself put it, “I learned that courage was not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear.”

— With files from Emma Gilchrist

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The stand-off between Alberta and British Columbia over the Kinder Morgan Trans Mountain pipeline seems to grow in intensity by the minute.

On Tuesday the B.C. NDP announced a proposal to restrict the flow of diluted bitumen from the oilsands through the province until further scientific study is conducted on its behaviour in water.

Alberta Premier Rachel Notley fired back on Twitter, arguing B.C. “does not have the right to re-write our constitution & assume powers for itself that it does not have.”

Since then, Alberta has suspended talks over $500 million in annual electricity imports from B.C. and Prime Minister Justin Trudeau has hopped into the ring suggesting that national carbon pricing and ocean protection plan may not go ahead without the pipeline getting built.

Oh, and let’s not forget an Italian restaurant in Fort McMurray is no longer serving wine from B.C. in retaliation. It looks like a trade war is brewing between the provinces.

Amongst all of the politicking, it’s easy for the substance of the debate to be lost. The B.C. government is responding to a very real concern about the risk of a spill of diluted bitumen in water. In 2015 the Royal Society of Canada identified seven major knowledge gaps when it comes to the risk of a diluted bitumen spill in water. And B.C. has the responsibility to regulate hazardous substances under the B.C. Environmental Management Act.

It’s worth recalling that the National Energy Board review of the Trans Mountain project never even considered the impacts of oil tankers on the marine environment, so when Trudeau says his government made a “science based” decision, you’ve got to take it with a mega grain of salt.

At the same time, Notley also has very real concerns about the pipeline not going ahead, with the cost differential for Alberta’s oil widening, an industry that’s been hurting from the crash in the price of oil and an election around the corner.

DeSmog Canada chatted with David Moscrop — a political theorist, postdoctoral fellow at Simon Fraser University and regular contributor to Maclean’s magazine — about the unfolding situation.

“It’s really hard to say. Nobody wins from a trade war. Somebody might lose more than someone else. But nobody wins.” https://t.co/sAsdn5HzfL

— DeSmog Canada (@DeSmogCanada) February 2, 2018

The B.C. government seems to have been framed as being somewhat unreasonable in their approach to Trans Mountain. What do you make of that?

It depends on which lens you use.

If your lens is that John Horgan needs this in order to win the next election, or to continue to be propped up by Andrew Weaver because the Green Party’s demanding that he opposes the pipeline, then I think it’s fair enough to say that he’s playing chicken with the federation because you want to win — although any of them would do the same damn thing.

Everyone’s a hypocrite, everyone’s full of shit. Everyone’s playing politics.

But on the actual substantive side of it, there are a number of people in the province and party who see pipelines as an existential threat insofar as they contribute to climate change. They look and say “we want an aggressive, radical agenda for addressing the greatest threat to humankind in at least the last 10,000 years.” Is that being unreasonable? They’re interested in the survival of the species. I would say in some sense, in the long run the folks who are being unreasonable are those who refuse to commit to an aggressive climate change agenda.

What do you make of Premier Rachel Notley’s response, bringing up how this is an attack on Confederation and all the rest?

Oh my god, are you kidding me? It’s all so stupid. Crack open any Canadian politics textbook, even the bad ones, and it’s a history of the federation fighting from even before day one. This is what we do.

I wrote about this a little while ago for Maclean’s. We’re always smacking each other and always fighting with each other and with the federal government. We’re always playing one another off this province or that province or the feds. It’s hyperbole.

She’s in a tough spot. I don’t begrudge her the politics of it. She’s in the same spot in some ways that Horgan is in British Columbia. They want to win the next election. That’s politically reasonable, it’s just the nature of having a federation. But that doesn’t mean that the New Democrats in British Columbia shouldn’t be fighting this tooth and nail for both political and substantive reasons.

Were you surprised to see Alberta announce that it’s suspending discussions about electricity purchases over this?

No. The only thing that would have surprised me is if they got a posse together and marched across the border. That would a little bit surprising. I think we could take them. Anything short of that isn’t surprising to me because Premier Notley has to be seen as being tough on British Columbians by standing up for Alberta in the same way that Horgan has to be seen as being tough on Albertans and standing up for B.C. To give the Prime Minister some credit, he has to be seen as standing up for the federation. And he thinks that means he has to support the pipeline.

It’s one of those cases where it’s short-term gain, long-term pain. To oversimplify it, but here’s the essence of the problem: our political and economic cycles are too short. They’re thinking the next election, or the next 10 years — not the next 100 years.

How do you think Trudeau has responded?

He’s hitched to the Alberta wagon now, I think, like it or not … He can’t go back on it now. The political hit on going back on that would be devastating, especially given that people are still talking about electoral reform and he seems a bit of a duplicitous hypocrite.

He’s stuck with it. Alberta’s stuck with it. B.C.’s stuck with it. It’s a standoff, and I don’t think anybody knows how it’s going to end.

If I had to guess, I’d say it might end with Kinder Morgan saying “oh boy, this project isn’t viable anymore, we’re out.” I would imagine that’s the strategy of those who want to stop the pipeline: wait them out, make it become financially unviable or scare off investors. That would certainly be my strategy.

In some ways, all three political groups — the federal government, Alberta and B.C. — would politically win. That might be the political theodicy outcome, the best of all political worlds. If the construction pushes ahead and British Columbians are opposed to this — and boy, the ones who are opposed are really opposed — think they’re not being taken seriously or listened to, it’s going to get nasty very, very quickly.

I would imagine to the point where we’re going to see a kind of reaction that we haven’t seen seen since Montebello or Oka. We’ve already seen some of it on Burnaby Mountain.

Just a reminder that there’s two dimensions that I think people argue across without ever making explicit.

There’s a political dimension — which is to say an electoral dimension, who wins and who loses based on party support — and there’s the substantive policy dimension of it, like what’s good for the economy and what do you trade off against addressing climate change. There’s a legitimate debate to be had on both. But there’s a lot of bad faith activity on both sides, with people conflating those two things and the population is caught in the middle. That’s politics. That said, it’s the future of the country.

Politics is stupid.

You tweeted recently that politicians have done a bad job at addressing a lot of these causes of anger. What would it look like in your mind if politicians were actually addressing them?

These things need to be addressed structurally, and when I say that I mean that we need to find a way to make sure that cycles of boom and bust, continued environmental degradation, continuous growing unaffordability — features that are often common with liberal democracies and capitalist systems — are addressed in a way that’s at least semi-permanent if not permanent.

Part of that has to rely on bringing citizens into the decision-making process, making sure that not only are they listened to but they’re engaged in ways that are more meaningful than a town hall. You have citizen juries or citizen assemblies. You have regular meetings where people are given time and resources to sit down and take part in decision-making and be listened to. And then — and this is critical — you listen to them, follow-up and you do what they think you should do. There’s a lot of well-meaning chatter that never translates into action. We call it “democracy-washing.” You get cover because you went and did a town hall but then you go back and it’s life as usual.

What does that mean? It probably means we need to dedicate state funds to making sure that people can afford to live. We probably need to decriminalize drugs, especially in the case of the opioid epidemic. We need to end housing speculation. We need to decide whether we’re all in on climate change or not. A pipeline agenda is inconsistent with that. These are big things, and it takes a lot of political capital and a lot of guts to get it done. But we’re not doing any of them, really.

When do you guess this might be resolved?

It’s really hard to say. Nobody wins from a trade war. Somebody might lose more than someone else. But nobody wins.

I would imagine all the politicians involved will probably take a bit of punishment because people will get frustrated. If it does stretch out for too long, whomever is up for re-election will bear the brunt of it the most.

One hopes that at some point, everyone realizes that by escalating everyone loses. But I’m not convinced anymore that’s going to happen. This might actually get quite nasty. If they push on and continue to develop the project, at some point the government of British Columbia is going to run out of options. I’m sure the courts will be vigorously involved. At some point, it’s going to hit the ground.

And then it’ll be up to the citizens of British Columbia to react however they think is appropriate. That’s where I think it’ll get particularly nasty, because it will no longer become political in the sense of relations between the provinces and the federal government. It’ll be political in the streets. It will stretch on ’til it’s over, one way or the other — whether it gets built or not. It will never not be a political battle. The question is whether it’s a battle in the courts, in the legislatures, in the press or in the streets? We’ll just have to wait and see.

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British Columbia won’t allow any increase in shipments of diluted bitumen through the province until the results of a scientific inquiry into the risks of oil spills in marine environments is completed, according to an announcement from the B.C. government on Tuesday.  

“We are proposing we restrict the transport of diluted bitumen until we hear back from the B.C. scientific community about the impacts of a spill and what we would need to mitigate that,” B.C. Environment Minister George Heyman told DeSmog Canada.

Diluted bitumen is a mixture of bitumen — the unrefined, thickest form of petroleum extracted from Alberta’s oilsands —  and natural gas condensate — the same substance the Iranian tanker Sanchi was carrying when it collided with another ship in the East China Sea. Condensate is added to allow the viscous substance to flow through pipelines.

The announcement has major implications for the Kinder Morgan Trans Mountain pipeline.

Jessica Clogg, executive director and senior counsel of West Coast Environmental Law, celebrated the manoeuvre as “courageous.”

“Effectively the province has said if the science doesn’t show that you can clean up a dilbit spill safely and effectively then Kinder Morgan may never be able to turn the taps on, even if they can get the pipeline built,” Clogg told DeSmog Canada.

The announcement comes alongside a suite of new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

Heyman said the move is a part of the government’s promise to employ every tool in the toolbox to protect British Columbia from a diluted bitumen, or dilbit, spill.

“Effectively the province has said if the science doesn’t show that you can clean up a dilbit spill safely and effectively then Kinder Morgan may never be able to turn the taps on, even if they can get the pipeline built.” – Jessica Clogg, @WCELaw https://t.co/fZdnnmT8sD

— DeSmog Canada (@DeSmogCanada) January 30, 2018

“Clearly as a province B.C. is not responsible for regulating vessel traffic but we do have authority to look at the impact of a spill if it lands on the coastline or a spill if it lands in local waterways,” Heyman said.

“What I’m determined to do is show British Columbians that what they expect from us is going to be delivered. We are going to do everything in our power to protect our coastline.”

The existing Trans Mountain oil pipeline runs from Hardisty, Alta., to Burnaby, B.C. Kinder Morgan’s proposal to build a new pipeline on a similar route would boost capacity from 300,000 barrels per day to 890,000 barrels per day, increasing the number of oil tankers in B.C.’s waters seven-fold from around 60 to 400 each year.

The project received federal approval — with 157 requirements — in November 2016, but faces strong opposition from First Nations and municipalities along the proposed pipeline route.

B.C. to address knowledge gaps in dilbit spills

In 2015 the Royal Society of Canada released a study that identified seven major knowledge gaps when it comes to the risk of a diluted bitumen spill in water.

“We want the advisory panel to look at the Royal Society of Canada information gaps and do it very specifically in a way that addresses conditions in British Columbia, with B.C. interests in mind and considering the different forms that heavy oil could be transported through B.C. via, rail, truck and pipeline,” Heyman said.

Christianne Wilhelmson, executive director of Georgia Strait Alliance, said today’s announcement is proof B.C. acknowledges “diluted bitumen behaves differently than conventional oil.”

“The best available science says it can sink or be suspended in water,” Wilhelmson said. “Currently, there is no effective technology that exists to clean it up, making prevention the only safe approach to protect our local waters, communities, economies and ecosystems.”

The behaviour of dilbit in water has become a touchstone issue in the debate about building new oilsands pipelines. While a 2012 Enbridge study found dilbit did not sink in a laboratory environment, a 2014 report released by the federal government found dilbit sinks when mixed with sediment.

In 2010 an Enbridge pipeline ruptured, spilling nearly three million litres of dilbit into a tributary of the Kalamazoo river where it mixed with sediment on the river’s bottom, triggering one of the most expensive onshore oil spill cleanup efforts in U.S. history.

“A pipeline rupture over salmon-bearing streams would be extremely detrimental to some already weak and declining salmon stocks,” Wilhelmson said, “regardless of whether the polluter is required to pay significant restitution costs.”

B.C. Green Party leader Andrew Weaver welcomed the plan to do further scientific research.

“I look forward to the new panel providing complete, robust and accurate information on this matter to the minister that reinforces that which we already know — that there is no way currently to adequately respond to a spill of diluted bitumen.”

“We simply to not know enough to properly assess the risk and potential damages associated with a diluted bitumen spill in the Salish Sea,” Weaver said in a statement.

The province will release an intentions paper in February to solicit feedback on the restriction of dilbit transportation as well as new regulations related to spill response times, localized response plans for B.C.’s unique geographic regions and compensation.

Proposed regulations a boon to protect Indigenous rights, at risk species

The province’s move could provoke legal backlash from Kinder Morgan, Clogg said, but “by standing up for British Columbians, B.C. is reducing other types of risks.”

The new regulations could ease pressure in ongoing and potential legal battles to protect Indigenous rights and species at risk.

“It’s not aimed at Kinder Morgan in any way,” Clogg said. “It’s a regulation that applies across the board, to rail, pipelines —  it’s very much focused on provincial jurisdiction.”

“The Environmental Management Act is directed at protecting the environment, species as well as people and human communities from toxic substances, that is what this is about,” Clogg said.

ICYMI: How Canada is Driving Its Endangered Species to the Brink of Extinction

By asserting jurisdictional authority, B.C. may be setting the stage for better protections for species at risk, especially the remaining 76 members of the endangered southern killer whale population, which is not expected to survive the increase in tanker traffic from Trans Mountain.

The federal government’s decision to approve the pipeline is a violation of the Species at Risk Act, according to project opponents currently fighting its approval in the courts.

Canada’s Species at Risk Act is meant to protect the critical habitat of endangered species, regardless of plans for industrial projects. . But Canada’s track record on protecting species at risk is poor and, so far, rules haven’t been strong enough to prevent proposed projects from moving forward, despite impacts to endangered species.

This winter the independent scientific panel responsible for monitoring species at risk recommended the federal government add B.C.’s struggling sockeye salmon populations to the federal Species at Risk registry. The Trans Mountain pipeline has been identified as a significant risk to sockeye salmon.

ICYMI: We Exposed Sockeye Salmon to Diluted Bitumen. Here’s What We Found.

“The way I see it legally, B.C. has the right and responsibility to look after things within its jurisdiction,” Clogg said.

“We live in an era of collaborative federalism and really when the review and federal go-ahead was given it was with a number of conditions, which included the Kinder Morgan project having to follow provincial and federal laws and permitting processes,” she said.

“All B.C. can do is act according to its responsibilities, which it’s clearly done here.”

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Kinder Morgan Trans Mountain may be in violation of a condition laid out by the National Energy Board, Canada’s federal pipeline regulator, after ordering nearly 300,000 tonnes of pipeline for the expansion project without submitting a quality management plan.

According to regulatory documents filed by the National Energy Board in September, Trans Mountain was required to file a quality management plan “at least four months prior to manufacturing any pipe and major components for the project.”

The quality management plan requires Trans Mountain to supply documentation regarding the qualifications of pipeline contractors, vendors and suppliers, quality auditing of manufactured pipe and the preservation of pipe during shipping and storage.

Yet in documents submitted to the NEB, Trans Mountain confirmed pipeline manufacturing contracts were awarded between May and July of 2017 and manufacturing of the pipeline began in October with no plan in place.

In 2012, TransCanada came under fire for failing to comply with NEB rules regarding pipeline inspections. Since 1999 the NEB has required companies to provide independent inspections of contracted pipeline manufacturers. Whistleblower Evan Vokes raised the alarm about faulty pipeline welding practices, bringing his complaint to the NEB after TransCanada refused to acknowledge his concerns.

Peter McCartney, campaigner with the Wilderness Committee, said the company’s actions are evidence of a disregard for Canada’s regulatory process.

“They think the rules don’t apply to them and yet there are 157 conditions the federal government placed on this project’s approval,” McCartney told DeSmog Canada.

The NEB has indicated it will review Trans Mountain’s potential non-compliance in an “upcoming compliance verification activity.”

In early February 2017 Trans Mountain submitted a filing to the NEB that included “incomplete process documentation” on 13 specific aspects of Condition 9, which applies to the quality management plan.

#KinderMorgan At Risk of Violating NEB Condition With Premature 300,000-Tonne Pipeline Order https://t.co/evYw3E3eaW #transmountain #bcpoli

— DeSmog Canada (@DeSmogCanada) November 3, 2017

Trans Mountain notified the NEB it would submit completed documentation to the NEB by August 15, 2017, but by September none of the requested document has been submitted.

In a response to the NEB, Trans Mountain confirmed it had procured pipe, fitting and other major components for the pipeline, prior to the completion of its quality management plan.

A spokesperson with the NEB told DeSmog Canada that an assessment of Trans Mountain’s “condition related filings is ongoing.”

“Throughout construction oversight, the NEB undertakes assessment of company documentation to ensure pipe and components meet regulations and standards,” the spokesperson said. “The company is accountable for meeting these regulations and standards.”

Trans Mountain did not respond to a written request for comment.

McCartney said these revelations add to growing concerns Trans Mountain is not interested in following rules laid out by the federal government.

Last month the NEB ordered Trans Mountain to remove unapproved anti-spawning mats a company biologist placed in B.C. and Alberta rivers along the proposed pipeline route. In an October 12 letter, the NEB told Trans Mountain the use of such installations “prior to approval of relevant conditions for commencement of construction and approval” of the pipeline was non-compliant.

Trans Mountain recently appealed to the NEB to help keep the project on schedule by expediting ongoing reviews of project conditions. The request came as the city of Burnaby, which vocally opposes the project, refused to issue construction permits to the company.

According to previous NEB filings, Trans Mountain plans to stockpile pipeline in New Westminster, Chilliwack, Hope, Merritt, Kamloops, Vavenby and Valemount.

Those piles could begin appearing as early as this month.

Kinder Morgan released an IPO in May, seeking $1.75 billion from investors. In a prospectus filed with security regulators the company warned delays in construction of the Trans Mountain pipeline posed a significant risk to the project.

“Should any number of risks arise, [Trans Mountain] may be inhibited, delayed or stopped altogether,” the document warned.

NEB Letter to Trans Mountain re Condition 9 September 2017 by DeSmog Canada on Scribd

Trans Mountain Response to NEB Letter – Condition 9 September 2017 by DeSmog Canada on Scribd

Image: Kinder Morgan Trans Mountain pipeline sign in Burnaby. Photo: Carol Linnitt | DeSmog Canada

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The battle against the Kinder Morgan Trans Mountain pipeline could lead to the next Standing Rock and destroy any investment case for the project, according to a newly released report.

The report, commissioned by the Secwepemc nation and prepared by the Indigenous Network on Economies and Trade, is titled “Standing Rock of the North: The Kinder Morgan Trans Mountain Pipeline Expansion Secwepemc Risk Assessment.”

Over the course of 35 pages, it articulates seven ways that Kinder Morgan Canada has failed “to account for the lack of political, legal, and proprietary certainty surrounding the pipeline.”

“The government has to follow the minimum standards laid out in the United Nations Declaration on the Rights of Indigenous Peoples — that includes free, prior and informed consent, which they have not gotten from us for the project,” Kanahus Manuel, member of the Secwepemc Women Warrior Society and daughter of the late Art Manuel, told The Guardian.

“Instead Kinder Morgan is hiding the risks and the costs their backers will face when this pipeline doesn’t get built.”

Canada and B.C. have both committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP. A central component of UNDRIP is an adherence to “free, prior and informed consent,” meaning consent that is attained without coercion or manipulation, with plenty of notice and makes sure that detailed information is provided. There’s plenty of debate in Canada about how UNDRIP can actually be implemented, but in the meantime governments are talking the talk without always walking the walk.

Here’s a breakdown of the key points.

1) Kinder Morgan Underestimates the Likelihood of Direct Action by Secwepemc Nation

The proposed Trans Mountain expansion pipeline (referred to as TMEP in the report) would transport 890,000 barrels of oil per day from Edmonton to Burnaby and plans to cross 518 kilometres of Secwepemc territory, which accounts for about half of the pipeline’s entire length.

The problem?

The Secwepemc nation never ceded, released or surrendered their land to the British Crown or Canadian state. That’s the case in much of British Columbia. The original pipeline was first built in 1951, when Indigenous peoples weren’t allowed to organize on land issues or hire lawyers.

But it’s now 2017. And that matters a great deal given the Secwepemc nation unreservedly opposes the pipeline.

ICYMI: Canada’s Implementation of UN Declaration on Indigenous Rights Raises Questions About Oilsands, Resource Extraction

In June, the nation declared: “We the Secwepemc have never provided and will never provide our collective consent to the Kinder Morgan Trans Mountain Pipeline Project. In fact, we hereby explicitly and irrevocably refuse its passage through our territory.”

The Secwepemc have a very lengthy track record of fierce resistance and direct action. In 1995, sundancers and other land defenders engaged in a month-long standoff with 400 RCMP officers, now known as the Gustafsen Lake standoff.

Other examples of resistance include the Sun Peaks Resort camp from 2000 to 2010, the Women Warrior Society camp in 2015 against Imperial Metals following the Mount Polley mining disaster and ongoing opposition to KGHM’s Ajax Mine.

Secwepemc people are more than ready to fight to protect their lands and waters.

“In their words, the pipeline will never be built,” said report co-author and economist Troy Cochrane in an interview with DeSmog Canada.

“They will not allow it to come onto their land. If we’re taking them at their word, then the pipeline is doomed from the get-go. If the government is going to respond to this on-the-ground confrontation of the pipeline coming onto the territory, who knows where that could go. I shudder to think about those possibilities.”

Protestors at Standing Rock faced violent clashes with private security forces. Photo: Dark Sevier via Flickr

2) There’s Enormous Legal Risk to Trying to Ram Through a Pipeline

There are currently 18 distinct legal proceedings against the project.

That includes six against the National Energy Board’s recommended approval, nine against the decision by the federal cabinet to approve it, three against the B.C. government for its decision to accept the federal review process and another two from Indian Tribes in Washington State for potential impact of significantly increased tanker traffic on endangered southern resident killer whales.

The first round of hearings started in early October in front of the Federal Court of Appeals. Because of the size of the case, it includes over 10 applicants including seven First Nations. As noted in the report: “The legal risks for the proposed Kinder Morgan TMEP therefore are extremely high.”

Another related aspect emphasized in the report is that Secwepemc people operate with a “principle of collective land tenure” that contradicts Western conceptions of land ownership.

Because Kinder Morgan and the various levels of government only consulted with elected band councils as opposed to the collective nation, the report contends they “failed at the most basic and primary threshold when it comes to negotiating with the proper title and rights holders to discharge constitutional obligations.”

Throw in the landmark 2014 Supreme Court of Canada case between the Tsilhqot’in Nation and British Columbia, and there’s a pretty strong argument to be made that the legal system could make Kinder Morgan’s life very difficult.

3) The Economics for New Pipelines Are Pretty Awful Right Now (see: Energy East)

It was less than two weeks ago that TransCanada cancelled its massive proposed Energy East Pipeline, mostly due to sustained low oil prices.

The same fate could befall Kinder Morgan’s project.

“Historically, pipeline companies have been considered relatively safe, stable investments,” the report noted. “However, since 2015, the market has treated pipelines as a riskier investment.”

This has had direct consequences for Kinder Morgan’s revenue, which peaked in 2014 and has been dropping ever since. But the report contends that the economic situation could get much more dire for Kinder Morgan following the “Secwepemc’s assertion that they will defend their land, and the recently launched Tiny Houses campaign.”

Every month that the project is delayed costs the company over $5.6 million. In addition, the total anticipated project cost has increased by almost a full one-third, from $5.4 billion in 2012 to $7.2 billion last year.

“Whether Kinder Morgan knows or is ignorant, the actual risk associated with investments in this project are totally out of line with what the real risks are, and the real risks are all compounded by the realities of Indigenous land rights and the possibility of direct action to defend their territory,” Cochrane said.

4) Changing Governments Have Completely Changed the Game

The BC Liberals went to bat for the Trans Mountain pipeline for many years.

Sure, it committed in early 2016 to requiring five key conditions be met before allowing it to proceed. But despite having the opportunity to order a provincial environmental assessment, it chose to accept the federal National Energy Board’s assessment as its own through an “equivalency agreement.”

That meant that it gave up the chance to seriously re-evaluate the environmental ramifications of the project.

How times have changed. The newly elected B.C. NDP government, propped up by the provincial Greens, have committed to doing everything it can to stop the Kinder Morgan project. In August, the new government announced it was seeking intervener status in legal challenges to the project, appointing the legendary lawyer Thomas Berger to head up the charge.

In addition, the new government has pledged to implement the United Nations Declaration on the Rights of Indigenous Peoples (although, to be fair, both the federal Liberals and Alberta NDP have done the same without much to show for it).

As the report put it: “The political terrain is shifting rapidly in the province and Indigenous peoples are positioned to play a central role.”

Will #KinderMorgan‘s #TransMountain #Oilsands Pipeline Become the #StandingRock of the North? https://t.co/Foalru9aXK #cdnpoli @james_m_wilt

— DeSmog Canada (@DeSmogCanada) October 18, 2017

5) Kinder Morgan Could Take a Massive Reputational Hit

Names like TransCanada and Enbridge have become well-known in Canadian water cooler talk.

Same goes for Kinder Morgan. Especially since Trudeau appointed a ministerial panel to review the project and  subsequent ignored all of its incisive recommendations.

“Kinder Morgan’s plan to build a pipeline that passes through Indigenous territory, and also a densely populated city known for its environmentally conscience citizens, puts the company at the centre of these conflicts,” the report argues. “By doing so, it has become one of a handful of pipeline companies that are household names.”

A continued push to build the pipeline by Kinder Morgan could add to that negative reputation, especially in the face of fierce Indigenous opposition and potential police or military intervention as implied by Natural Resources Minister Jim Carr.

More negative attention could lead to more public pressure to cancel the project, itself impacting the economic bottom line.

6) Modernizing Environmental Assessments Could Add Even More Pressure

The Kinder Morgan pipeline received a recommended approval from the National Energy Board, and the go-ahead from federal cabinet.

But the report contended that impending overhauls of the National Energy Board, Canadian Environmental Assessment Agency and Fisheries Act could have an impact on the pipeline.

That’s especially given the federal government’s announcement of “interim review principles” in January 2016, which included a commitment to “undertake deeper consultations with Indigenous peoples and provide funding to support participation in these consultations.”

This creates what the report dubs a “significant risk” for the project given the failure to uphold that commitment.

“Changes to legislation are expected sometime in the fall of 2017 and there is evidence to suggest that they will have a significant influence on subsequent decision-making and licensing processes related to the TMEP and route approval process — especially where Indigenous rights, title, jurisdiction, and consent are involved,” the report said.

Protesters and members of the RCMP clashed near the site of survey work for the Trans Mountain pipeiine being conducted on Burnaby Mountain, November 2014. Several protesters were arrested. Photo: Mark Klotz via Flickr

7) Trans Mountain Would Include Huge Climate-Related Risks

In May, Greenpeace Canada filed a complaint with the Alberta Securities Commission about Kinder Morgan’s disclosure of climate-related risk.

It was the first such submission in Canada, following in the wake of Occidental Petroleum being required by asset manager BlackRock to disclose such risks. Adam Scott of Oil Change International said that he’s also watching closely for the full report by the Canadian Securities Administrators on climate change risk disclosure practices.

Such pushes also helped establish the groundwork for the final reason in the report: that Kinder Morgan’s pipeline will directly undermine Canada’s climate targets. As recently reported by the commissioner of the environment and sustainable development, Canada is currently projected to overshoot its 2030 target by 55 per cent.

Barring incredible technological innovations that cut per-barrel emissions, it seems impossible at this point for the country to do anything but stabilize and then decrease oilsands production. As a result, this threatens fossil fuels with the potential future status of “stranded assets,” meaning that investors will massively lose out if climate targets are taken seriously.

“When Canada gets serious, the Kinder Morgan TMEP will never pass inspection if run through the climate change global and national commitments necessary to save the planet as an inhabitable place for all,” the report concluded.

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It feels like an eternity since federal NDP leader Thomas Mulcair received the boot from delegates at the party convention in April 2016.

The lengthy leadership race hasn’t exactly helped that feeling.

Most candidates launched their campaigns in February. Nine debates were held between March and September. But we’re almost at the end of the tunnel. Voting for the first ballot, via both mail-in ballots and online, commenced on Sept. 18 and concludes on Oct. 1. If needed, second and third ballots will be collected by Oct. 8 and Oct. 15.

While there are only four candidates left in the race — Guy Caron, Jagmeet Singh, Charlie Angus and Niki Ashton — there are an enormous number of combined proposals related to energy, climate and environmental policies (especially compared to what was discussed during the federal Conservative leadership race).

Let’s take a look at what’s on offer from the NDP candidates.

Moving Past the Pipeline Debate

A central theme throughout the race has been the need to “move past” the pipeline debate.

Sounds easy!

In June, Ontario MP Charlie Angus — previously dubbed “the most pipeline-friendly candidate” by the Hill Times — said that “the only discussion we’ve had on the environment is ‘this pipeline versus that pipeline.’”

Similarly, Ontario MPP and deputy leader Jagmeet Singh states in his platform that “it’s no secret that there are people who would like to narrow our discussions on climate change to a debate about pipelines alone in an attempt to divide Canadians.”

It’s probably a fair point. But the pressure has, at the very least, required candidates to quickly clarify their position on the subject.

Both Manitoba MP Niki Ashton and Quebec MP Guy Caron have indicated that they’re against the country’s major projects: Kinder Morgan’s Trans Mountain and TransCanada’s Energy East. Enbridge’s controversial Line 3, which received federal approval alongside Trans Mountain, is left unaddressed.

Singh was late to the pipeline party — something Ashton publicly noted.

During a debate in St. John’s in June, Singh stated a desire to communicate with NDP leaders in Alberta and B.C. before declaring a firm decision on the matter.

Surprisingly, Singh’s climate plan dropped only a week later, fully opposing Trans Mountain and Energy East due to conflicts with emissions targets and the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

Angus arguably left the most room open for future projects, often deploying the Alberta government’s language of “social license” and threat of oil-by-rail.

In addition, he suggested that “industry understands that they need social license on the ground” and that government hasn’t sufficiently been “at the table.”

Four’s Company: Where @NDP Leadership Candidates Stand on #Energy and #Climate Policy https://t.co/jDi9nVJnRC #NDPldr #cdnpoli

— DeSmog Canada (@DeSmogCanada) September 27, 2017

Emissions Targets and Carbon Pricing

Every candidate but Angus has specifically committed to accelerating Canada’s reduction of greenhouse gas emissions in order to meet international climate targets.

Specifically, the trio of Caron, Singh and Ashton have all committed to cutting the country’s emissions by 30 per cent below 2005 levels by 2025. That’s a full five years earlier than the Liberal government’s current plan — which seeks to hit that number by 2030 — and only six years after an NDP government could conceivably attain power.

That won’t be easy.

To achieve that both Ashton and Angus stated that he will create a five-year “national carbon budget.”

Emissions targets help but the country needs actual mechanisms, like regulations or carbon pricing, to get there.

So far Caron is the sole candidate to propose adjusting the national price on carbon. Currently, the Liberal government requires every province to institute a price on carbon — either via a carbon tax or cap-and-trade framework — that will reach $50/tonne by 2022.

Caron proposed upping that requirement to $50/tonne by 2020, to $100/tonne by 2025 and $150/tonne by 2030.

That’s still below what Mark Jaccard and his research team at Simon Fraser University have calculated would be required if carbon pricing was exclusively relied on to hit Paris Agreement targets: $200/tonne by 2030.

It’s still significantly more specific than anything being offered by any other candidate.

Ushering in a Green Future

Aston, Angus and Singh have each proposed the creation of new government positions or agencies to help Canada usher in a new sustainable economy.

For Ashton, that includes the co-creation of a Crown corporation called Green Canada and a public investment bank. Together, the two institutions would help fund green housing projects, public transit, renewable tech, upskilling jobs in “sunset” industries, national retrofit program and a “young green job guarantee.”

Ashton’s plan for a publicly funded infrastructure bank is a big departure from the Liberal government’s controversial support of private investment in Canada’s $35-billion Infrastructure Bank.

Ashton noted there is a potential for 700,000 clean jobs in the construction and operation of renewable energy by 2050. To foster that potential, Ashton proposed the creation of four new Green Canada Advisory Boards to focus on forestry, agriculture, fishing and energy.

Angus also proposed an alternative to Canada’s Infrastructure Bank in the form of a new Crown corporation designed to facilitate “sustainable development” in energy, transit and “municipal redesigns.”

Meanwhile, Singh pledged to establish a climate change advisory group as well as a climate change action officer to keep track of progress on emissions.

Big Spenders

Only Ashton and Caron mention specific figures when it comes to funding of green programs.

Ashton dedicated a massive $10 billion per year to build 40,000 units of green public housing, amounting to over 150,000 houses in her first mandate.

She noted that she would pay for that and other programs with increased taxation on high-income earners and corporations, as well as deficit spending given low interest rates.

Caron also threw out a $10 billion figure to spur investment into electric high-speed rail in the revered Calgary-Edmonton and Quebec City-Windsor corridors over a 10-year period.

The amount won’t be enough to cover all the expected costs of such a project, however. Estimates for the corridors come in at $6 to $10 billion and $20 billion, respectively.

Caron would also dedicate $18 billion to public transit expenditures over a decade, $4.7 billion to clean drinking water in Indigenous communities and $32 billion in renewable investments (it’s unclear if the latter would be direct investments or grants/subsidies).

Possibly the most extravagant of all, Caron pledged to rebate up to $8,000 per electric vehicle up to a value of $40,000, and a huge $50,000 when purchasing medium- and heavy-duty electric buses or trucks.

Both Angus and Singh were significantly lighter on the details.

Singh has pitched ideas like a national public transit strategy to provide “long-term and predictable funding” and providing tax rebates for zero-emission vehicle purchases. But no particular dollar figures have been assigned to these ideas.

Same goes for his proposal to implement nationwide energy efficiency measures, kick off a renewable heating program and construct a much-needed east-west supergrid to share excess low-carbon electricity to neighbouring provinces.

Meanwhile, Angus provided a mere four bullet points in his climate platform, but one, notably, aims at eliminating Canada’s estimated $3.3 billion in annual subsidies for the oil and gas industry.

The other three priorities are develop a national carbon budget, a carbon budget council and, as mentioned above, a new Crown corporation to spurn sustainable development.

Driving the Electric Car Market

There’s also a fairly consistent support of a transition to electric vehicles among all four candidates.

Ashton stated that her government will phase-out gasoline- and diesel-fueled vehicles by 2040.

That’s exactly in line with recent commitments by the U.K. and France, and well behind Norway’s pledge to phase out by 2025. Her platform also indicated support for low-income households with interest-free loans to buy electric vehicles in the push to 2040.

Singh announced he will introduce a zero-emission vehicle agenda for Canada, including a levy on high-emitting vehicles and a tax rebate for electric vehicle purchases.

Zero-emission regulations were also promised by Caron in order to help facilitate a push for half of all vehicles on roads to be electric by 2041. His platform added that a regulatory regime would be implemented two years after he reaches office, combined with investments into R&D for ensuring that rare earth minerals and lithium are secured for manufacturing the vehicles.

None of the candidates have yet mentioned a zero-emission vehicle mandate as successfully deployed in jurisdictions like California or Quebec.

Broader, More Specific Policies Needed

Once all the ballots have been counted, there will be another two years for the new leader to refine their platform and mobilize support for the next federal election.

Giving an idea of what’s to come, most candidates have a few extra policies worth mentioning.

Singh shouted out the need to accelerate methane regulations, emphasize carbon price rebates for low-income families and protect Canadian pensions, savings and RRSPs by requiring fossil fuel companies to disclose climate risk.

Ashton advocated the need to “green” data storage and invest more in the international Green Climate Fund in the form of grants rather than loans.

Caron brought up the need to address climate justice, suggesting Canada ease migration barriers for those leaving their homes due to climate impacts. In addition, Caron plans to implement a carbon tariff on imports from other countries that have lower carbon prices, diverting revenue to companies that are impacted because of lower prices.

There are certainly broader questions to be answered around the influence of the oil and gas industry, recognizing the rights of indigenous peoples, especially when it comes to the assessment and approval of major projects and Canada’s larger transition to a sustainable, renewable energy economy.

Ballot results will be announced between October 1 and 15.

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The new B.C. NDP government has officially taken its first major step in attempting to stop the Kinder Morgan Trans Mountain pipeline.

On Thursday morning, it announced it will seek intervener status in upcoming legal challenges to the federal approval of the pipeline.

The announcement helps to fulfill what was pledged in the now-famous NDP-Green “confidence and supply agreement” to “immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline.”

Perhaps the most significant part of the announcement was who the B.C. government hired as external legal counsel for the process: Thomas Berger, one of the most renowned lawyers in Canadian history, especially in the realm of Indigenous and environmental rights.

Here’s a quick explainer about who Berger is, and what message this hiring sends.

Okay, who is Thomas Berger?

An absolute legend.

No, seriously. In the early 1970s, he served as legal counsel for the Nisga’a Tribal Council of northwestern British Columbia in a Supreme Court of Canada case about ancestral land rights. The Nisga’a lost the so-called Calder Case in 1973, but it served as a pivotal moment in recognition of Indigenous title in Canada.

Then, in the mid-1970s, Judge Berger led the Mackenzie Valley Pipeline Inquiry, resulting in a two-volume report that recommended against the construction of a huge gas pipeline that would weave through the Northwest Territories and northern Yukon. It was another massive moment in Canadian history on the environment and Indigenous law fronts.

In the following decades, Berger played a key role in legal investigations into sexual abuse allegations at the Jericho Hill School for the Deaf in British Columbia, and conflicts over requirements under the Nunavut Land Claims Agreement.

Chris Tollefson, founding executive director of the Pacific Centre for Environmental Law and Litigation (CELL), said in an interview with DeSmog Canada that “obviously, he’s a good choice and very well respected.” Similarly, Eugene Kung of West Coast Environmental Law dubbed it a “wise and prudent decision.”

This is lawyer speak for “Thomas Berger is an absolute legend.”

So how old is this guy?!

Berger is 84 years old! And he’s still playing a very active role in the Canadian legal scene.

In March — a single day before his latest birthday — Berger represented three Yukon First Nations and two environmental organizations in the Supreme Court of Canada in their battle to protect the Peel watershed.

While many would have likely retired and taken up a full-time golf career by his age, Berger is still going strong.

Indigenous Law Legend Thomas Berger To Lead B.C. Into Trans Mountain Pipeline Battle https://t.co/w2hrhgu34v #bcpoli #kindermorgan pic.twitter.com/NwB3iMBPF2

— DeSmog Canada (@DeSmogCanada) August 11, 2017

What’s his role going to be in all this?

Frankly, it’s still yet to be determined.

The government has signalled it’s looking to apply for intervener status in the federal legal appeal over the Kinder Morgan pipeline. Tollefson said the first task for Berger will be advising the government on whether to seek the right to intervene in the pending court cases that are before the federal court of appeals.

“My reading of the announcement today is that the government hasn’t decided whether it would be advisable to intervene or not,” he said. “That’s why they’ve hired Mr. Berger. It may be too late to intervene. And the government may decide there’s no real benefit to being an intervener in those cases in that interveners do not enjoy the same rights as the parties [such as the plaintiff, defendant or petitioner]. There may be better ways to invest time and resources.”

Kung agreed, noting that it’s “certainly later in the process” for the government to be applying for intervener status. But he said that given the Alberta NDP government was granted intervener status in May, it’s reasonable to assume that the new B.C. government would have a shot.

Berger will also likely have a role in evaluating the province’s conduct on the entire Trans Mountain file, including reviewing the previous government’s consultation record with Indigenous communities and ascertaining a response to the ongoing Squamish Nation challenge to the provincial decision to grant an environmental assessment certificate for the project.

What does this mean for pipeline construction?

TransMountain has said it will start construction this September.

But on Thursday Environment Minister George Heyman said only three of eight environmental management plans required by the province have been accepted. The other five management plans haven’t been accepted due to inadequate consultation with First Nations, according to Heyman.

“Until that has been completed, Kinder Morgan, with the exception of some private land and some clearing of right-of-way, cannot put shovels in the ground,” Heyman told a press conference in Vancouver.

In late July, the province’s attorney general told the radio station CHNL that the government will proceed on the matter “within the laws of British Columbia and Canada, because if we don’t, we’ll be sued.”

In other words, the government’s chief legal expert doesn’t see it as a viable option to attempt to delay or kill the regulatory process by slowing things down.

However, Tollefson emphasizes that this doesn’t mean the government will “swiftly issue all of these permits and approvals.”

“I think what he is signalling is that those permits and approvals will be considered by independent decisionmakers and applying the relevant statutory requirements,” he said. “And the chips will fall where they may.”

Kung echoed that, suggesting the attorney general won’t artificially deny permits without any merit, but ensure that whatever decisions they make are “meritorious and therefore more resilient to potential legal challenges.”

That’s where Berger comes in. The B.C. government has already indicated it will do everything it can to legally impede the pipeline’s construction. Based on what we know today, he will ensure that the government’s case is airtight and respectful of Indigenous consent and environmental concerns.

So what’s next?

Stay tuned.

“In terms of moving forward, I would expect additional engagement and consultation with the goal of seeking consent from First Nations,” Kung said. “In those spaces, I’m sure what will be discussed is the deficiencies of the review process: namely the National Energy Board’s process, on which the federal and provincial decisions were both based. That’s a pretty shaky foundation to build your house of cards on.

“I think that’s starting to fall apart now,” he added.

As Tollefson put it, this is effectively the first announcement by the new government on the issue. We should expect more on future steps, processes and alternatives in the weeks to come.

The provincial government carries many responsibilities for protecting things within its jurisdiction, including drinking water and public health. But Kung argued that also includes upholding a constitutional and moral obligation to First Nations.

There probably isn’t a better person in the entire country to attempt to uphold that than Thomas Berger. The new B.C. government has sent a clear signal: it’s taking the matter of the Trans Mountain pipeline very seriously.

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The massive “Canada 150” celebrations of July 1 are finally over, leaving little in their wake but hangovers, a multi-million dollar price tag and mountains of trash.

But for some Indigenous peoples in Canada, the festivities remain a visceral reminder of their continued dispossession from ancestral lands and waters. That’s especially true for those on the frontlines of megaprojects — pipelines, hydro dams, oil and gas wells, liquefied natural gas terminals and mines — that infringe on Indigenous land rights.

DeSmog Canada caught up with three Indigenous people directly involved in local struggles to resist such projects.

Beatrice Hunter 

Beatrice Hunter is an Inuk woman living in Labrador. In May, she was arrested and jailed while defending ancestral territories threatened by Nalcor’s Muskrat Falls project. Hunter was released after 10 days in a men’s prison following a decision by the Supreme Court of Newfoundland and Labrador.

Have you returned to the site since the court ruling?

Yeah, I returned on Canada Day. It was my way of saying that I am not Canadian, I am Inuk. It was my way of saying that what the government is doing is not right.

How was the experience being back there?

It was good to be back there. It was excellent. Ever since I went to the gate last year with other Labradorians, it’s almost felt like a calling. It feels like you’re actually doing something and you’re not just sitting around waiting for stuff to happen. You’re trying to change it yourself. It was excellent to be with other Labrador Land Protectors.

Obviously there’s been a lot of talk about Canada 150. What do you make of it in the context of Muskrat Falls?

It’s very upsetting and heartbreaking when the Canadian government doesn’t listen to you when obviously the natives of this land were the first peoples here. It shows a lack of respect for Indigenous nations across the country and for them to not admit the wrongs that have been done through the years. It’s another slap in the face.

The federal government has also been talking a lot about “reconciliation.” Do you feel there’s been any progress on that in the last few years?

I feel personally that nothing has actually been happening. It’s the same old story: they make promises and then don’t follow through with them.

What outcome do you and other land protectors hope for?

The best outcome will be to shut Muskrat down. And I still feel the same way. Everybody talks about it being too late, but I feel it’s never too late. The damage is already done but we can try and fix the damage. There’s been billions of dollars been done on the project. Why aren’t government officials and leaders and politicians being audited for it? They obviously have something to hide. If they didn’t have anything to hide, they would just come out with all the information.

Do you plan to keep going to the site?

Yes! Of course! I’m not going to stop. We can’t stop. We have to try to change it. We can’t let big corporations and politicians get away with this because it’s always going to happen if we let them.

Any last words?

I just want to let everybody know that I’m going to keep fighting. That’s what I want everyone to know. Myself and the Labrador Land Protectors are going to keep fighting. We can’t give up. It’s the future. We’re fighting for those who can’t fight for themselves. We’re fighting for our children. We’re fighting for our grandchildren. We’re fighting for our ancestors that weren’t strong enough to go up against the big corporations and governments. I feel it’s like white supremacy. That’s what it feels like to me. Everywhere you look: on TV, on radio, you hear white supremacy. Everywhere. It has to change.

Sadie-Phoenix Lavoie 

Sadie-Phoenix Lavoie is an Anishinaabe woman living in Manitoba. She is a student at the University of Winnipeg, co-founder of Red Rising Magazine, previously served as the vice-president of external affairs for the students’ association and has been involved with the campaign to pressure the institution to divest from fossil fuels.

What do you make of Canada 150 in the context of pipelines and ongoing extraction projects in Manitoba?

I definitely think that Canada 150 is trying to instill this pride of ‘who we are?’ and ‘what is the Canadian identity?’ The fact is that part of the Canadian identity is that extraction of natural resources in their economy. Now, they’re instilling this pride where you have to be prideful of being Canadian which also includes being protective of these types of industries. That’s where it gets really convoluted. We need to dismantle that narrative.

What would you say to settlers and settler politicians?

You have to share responsibilities to these communities and respect Indigenous rights. You’ve done a horrible job historically on this. And you can’t just be approving pipelines using the Canadian identity as a justification of infringing on those Indigenous rights, and therefore having to present that to the Canadian public and government. It’s all fine and dandy that you want to celebrate who you are. However, we still have a lot of conflict that needs to get resolved.

What does that look like specifically for you?

Part of that is respecting Indigenous rights to the land and UNDRIP: free, prior and informed consent in terms of any development on our traditional territories. Even though Justin Trudeau is saying ‘yes,’ there’s no ‘yes’ from the actual majority of Indigenous communities that are going to be directly affected. I’m not going to say that there is 100 per cent consensus within the Indigenous communities on pipelines.

But part of the fiduciary duty to the best interests of Indigenous peoples is you actually having to see there’s a huge demographic of Indigenous peoples that are saying ‘no.’ We have a right to say ‘no’ and a consultation with us isn’t about getting to a ‘yes.’ It’s about meaningful dialogue and respecting the fact that we can say ‘no’ and that doesn’t change with consultation and engagement.

There are other procedures and other things that need to be in place to ensure that pipeline is able to go through. And they haven’t met those. They haven’t met Indigenous rights or the court challenge that’s going on. To assume this pipeline’s going to be jammed down our throats is highly disrespectful on the part of a government that says they want to reconcile with Indigenous communities.

Any final thoughts?

Canada 150 isn’t a celebration for me, as an Indigenous woman. I see it as a celebration for them, to instill pride in their identities. But part of their identity is still being a colonizer, and colonizing me. The historical understanding of taking pride in Canada for all the “good” things it’s done does not erase the actual history of genocide in this country. I think that’s a big thing that Canadians need to accept.

Caleb Behn 

Caleb Behn is an Eh-Cho Dene and Dunne Za/Cree man living in British Columbia. He was the focus of the 2015 documentary “Fractured Land” and previously worked as a lawyer. Behn has frequently criticized the Site C dam — which, if built, would greatly impact the West Moberly First Nation, where his mother is from.

What do you make of Canada 150?

People have to recognize — and it should be quite obvious — that Canada 150 is a brand. Behind the superficial and contrived nature of Canada 150, you see something darker and more painful for Indigenous people.

It’s like from Calvin and Hobbes: they throw down the transmogrifier on colonization and genocide and missing and murdered Indigenous women and rape of the land and chronic representation of Indigenous people in the justice system and massive dispossession of lands and resources. And that becomes — through this magic rebranding exercise — some series of images and motifs and memes that sanitize and normalize what is abuse of relationships and law and land and people.

How does this tie in with the struggles over Site C?

From my perspective in northeast B.C. looking at Site C: behind this sanitized, non-abusive narrative that brands Canada and this 150 year grand experiment of colonization, you have actual tangible violations of good accounting principles, representation in the political process, systemically problematic and dangerous developments.

This urgency that Indigenous people are feeling is an urgency that the dominant colonial society should have felt from its very inception 150 years ago because it was grounded in the deployment of extractive technology and the violation of appropriate relations with human and non-human beings and environments.

That is hyper-relevant for the 21st century. That’s why Site C, Muskrat Falls, Line 3, fossil fuels, violation of law, disrespect of treaties, abuse is all interconnected.

There’s a lot of talk about acknowledging Indigenous rights to land. What do you think this looks like?

Land is such a weak word. It’s the violation of something truly sacred. But then to dress that up as something to be celebrated or unquestionably adopted and marketed within this decaying, decrepit, spiritually and physically contaminated time: that should be the clarion call for all human beings, especially in Canada.

Any final thoughts?

I hope your readers appreciate that as you celebrate the nation-state of Canada and somehow ignore the genocide and the rape and the violation of peoples, principles and land: even if you can get that far internally colonized and simplistically adopting a mindset and model, it’s in your best interest individually and collectively to still question what it is that’s being sold to you and what it is you’re witnessing.

I know what the red stands for in that flag. And I know what the white stands for in that flag. You see so many people unquestionably celebrating. It was really sad. And to see how many Indigenous people and other solid settler allies with their head firmly extracted from their ass are criticizing and engaging that — to me, that was the only real hope in that.

It’s a sad time.

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