The Trudeau government approved the Kinder Morgan oil pipeline expansion project after being told in a series of memos that First Nations believed its "paternalistic" approach to consultations was both "unrealistic" and "inadequate," reveal newly-released records obtained by National Observer.
The memos were sent to Natural Resources Minister Jim Carr in the days and weeks before Prime Minister Justin Trudeau gave the green light to Kinder Morgan's Trans Mountain pipeline expansion project on Nov. 29, 2016. Public servants prepared at least four of the memos for Carr based on feedback from dozens of Indigenous communities. The memos warned the minister that the communities felt the government had failed to address how the project would affect their rights.
If built, Kinder Morgan's Trans Mountain pipeline expansion project would triple the capacity of an existing oil pipeline network allowing it to ship up to 890,000 barrels of oil per day from Alberta to Burnaby in the metro Vancouver region. While this promises to generate thousands of construction and oilpatch jobs, the new pipeline would seriously impact First Nations along its route, as well as on the Pacific coast, where oil tanker traffic would increase by up to seven times.
But the memos highlighted the criticism of the Trudeau government's consultations, casting doubt on whether it fulfilled its legal duty to consult with First Nations on the pipeline. Carr's department told National Observer that these consultations were part of an "ongoing process" while confirming that it received negative feedback "during extensive Indigenous consultations."
The rushed approval of the Kinder Morgan project also helped the Trudeau government secure political support from the NDP government of Alberta Premier Rachel Notley for a national climate change plan that was adopted less than two weeks later in Ottawa.
Falling short of 'nation-to-nation' expectations
But the pipeline approval is now being disputed in court in a case that could reverse Trudeau's Kinder Morgan decision if First Nations and other groups opposed to the Trans Mountain expansion were able to prove that the federal government failed to accommodate Indigenous rights.
One of the memos from the office of Carr's deputy minister, Christyne Tremblay, summarizing specific requests for a time limit extension, informed the minister that First Nations felt that a previously-announced extension of consultations on the Trans Mountain project, from three to seven months, wasn’t long enough to resolve critical issues.
“Despite this extension, many groups have expressed strongly their view that consultations on the Project are still in their early stages, and that further time is necessary to fully understand their outstanding issues, and work towards accommodating them,” said the memo to Carr, dated Nov. 10, 2016, and released through access to information legislation.
“Many groups have framed this as being part of their expectations of a nation-to-nation relationship.”
The memos were heavily censored, but released to National Observer through access to information legislation on Jan. 12, 2018, following a request sent more than one year earlier on Dec. 1, 2016. Canada's Access to Information Act requires the government to release records upon request within 30 days to any Canadian citizen who pays a $5 fee, unless it has a valid reason to refuse.
'We anticipate this short turn-around time will be criticized by Indigenous groups'
The common theme of the feedback throughout the memos to Carr was that the government was rushing consultations, without giving affected First Nations enough time or resources to assess how the Trans Mountain expansion would affect them.
The memos also highlighted calls from First Nations for a brand new federal review of Kinder Morgan's project to ensure the government and the Texas-based company would accommodate the Indigenous rights and address other issues that had been overlooked during the original review by the federal energy regulator, the National Energy Board (NEB).
Carr was also told that 59 of the 114 Indigenous groups affected by the pipeline needed more time for adequate consultations, while 32 groups supported the project through a mutual benefit agreement. An additional 23 groups had little or no interaction with the government despite "engagement efforts" and there wasn't any indication what their position was, said the Nov. 10 memo to Carr.
The same memo told Carr that the government would face criticism for giving First Nations only two weeks to revise and provide comments on a voluminous report about federal efforts to consult with them and accommodate their rights.
"We anticipate this short turn-around time will be criticized by Indigenous groups," Carr was warned.
Separate briefing notes that accompanied a memo to Carr on Nov. 17, 2016 outlined specific concerns from Indigenous communities living near the pipeline's terminal in the metro Vancouver region, the Musqueam and Squamish nations. These briefings were prepared prior to a series of calls that Carr was scheduled to have with chiefs and other Indigenous leaders.
The notes told Carr that the Musqueam nation believed the federal government had failed to justify an infringement by the proposed pipeline on their right to fish. They also told the minister that the Squamish nation was "dissatisfied" with the review process and Crown consultations.
"Squamish's view is that Canada maintains a paternalistic mindset over Squamish lands and traditional territory; that the Squamish did not concede consent to Canada regarding decision-making in its traditional territory; and that the Squamish are not in a position to make a decision on the Project as the Nation does not have access to the information needed to undertake an adequate project assessment, nor has there been sufficient time to make an informed decision on the Project," said the notes for Carr.
The Canadian government has a legal duty to consult First Nations, Métis and Inuit communities on decisions that could affect their traditional territories and rights. Trudeau has also told cabinet ministers that no relationship is more important to the government than the one that it has with Indigenous people.
But the memos told Carr that many First Nations felt that this relationship wasn't going well, in terms of consultations on the Kinder Morgan project. In recent court proceedings, a lawyer representing Kinder Morgan’s detractors also questioned the government’s sincerity, noting that it was prematurely designing a website that announced the pipeline approval during a period when it was supposed to be conducting honourable consultations.
The internal warnings about the consultations coincided with pipeline safety concerns raised by a group of independent Canadian and American scientists. The scientists had also sent a letter to the prime minister in November 2016 about serious public health and environmental risks associated with the approval of new pipelines, like the Trans Mountain project, National Observer reported last October.
None of this was enough to delay Trudeau's announcement approving the project.
"The federal government’s consultation process was disappointingly flawed"
Representatives of the Tsleil-Waututh Nation, including Chief Maureen Thomas, flew to Ottawa for a meeting with Carr on Nov. 28, where they provided their own independent assessment, critical expert documents and the accounts of affected community members.
They learned the next day that the project had been approved.
"We felt like it was a one-way street," said Charlene Aleck, a community spokeswoman for the Tsleil-Waututh, in a telephone interview. "It wasn't a meaningful dialogue. We sent our best and we met with note-takers, not decision-makers. Jim Carr gave us his word that he would read through our assessment and documents."
Aleck doesn't think the minister read through the documents. She said it felt like a mere 10 minutes between the time they delivered their research and the moment of Trudeau's announcement.
Aleck said the Tsleil-Waututh Nation also shouldered the financial burden of paying for extra staff hours, lawyers, flights, to present their best people and research on the risks of the pipeline project. But it is much more than the economic burden, she said.
"How much would you pay to hear your niece or future granddaughter sing the whale song? What's the price to go out on a traditional canoe, dip your paddle, get those teachings? You can't put price tags on things like that," Aleck said.
“The federal government’s consultation process was disappointingly flawed," echoed Maureen Thomas, Chief of the Tsleil-Waututh Nation during a press conference on Jan. 27, 2017. “The economic information they relied on was outdated. The oil spill risks and health impacts were significantly understated. We have done our own independent assessment and made a decision based on Tsleil-Waututh law. We do not consent to the Kinder Morgan pipeline project in our territory.”
Representatives of the Stó:lō Collective and Upper Nicola Indian Band also expressed serious opposition to the short time allotted. They said it would not provide for sufficient understanding of the potential adverse long-term cultural and social impacts.
When asked about the negative feedback, Natural Resources Canada (NRCan) responded by email, explaining that it was still pursuing its discussions with First Nations.
"Consulting with Indigenous groups along the Trans Mountain Expansion (TMX) project route was designed to be an ongoing process," federal spokeswoman Jocelyn Argibay wrote in a statement. "The Government recognizes that some Indigenous peoples are in support of this project, while others are opposed, and we will continue to ensure that Indigenous voices continue to be heard throughout the construction and operation of this project."
The department also noted that Carr had approved a new committee on July 17, 2017 to advise the NEB, the federal pipeline regulator, to address environmental, safety and socio-economic issues related to the existing pipeline as well as to participate in monitoring of the new pipeline. It also said that the government was planning to spend $64.7 million of taxpayer money to help First Nations monitor impacts and ensure that Kinder Morgan is following the rules.
It was not immediately clear why the government didn't require Kinder Morgan to pay for these costs, but the government also said it was creating a partnership plan to encourage more jobs and contracts for Indigenous peoples and businesses, resulting from the Trans Mountain project.
"Throughout the construction and operation of this project, Indigenous voices will be heard," wrote Argibay. "Their counsel will be sought and their knowledge valued. We remain deeply committed to the ongoing work of reconciliation with Indigenous peoples and to greater Indigenous involvement in the review and monitoring of major resource development projects."
Kinder Morgan told National Observer in a separate statement that it "deeply respects Indigenous rights and title in Canada," noting that the approval followed "many years of engagement and consultation" with the affected communities, Indigenous groups and individuals.
"We engaged an unprecedented number of Indigenous communities and stand by our commitment to have direct, one-on-one dialogue with all groups that may be impacted by our project in order to understand and address their particular community concerns," Trans Mountain said in its statement. "We have support from First Nations communities whose reserves we intend to cross, and we're confident we will build and operate this project in a way that respects the values and priorities of Canadians and in respect of the environment."
Government planned to 're-announce' policies to build support for Kinder Morgan
A separate undated memo prepared for Tremblay, Carr's deputy minister, and originally classified as "secret" prior to its release through access to information legislation, recommended that the government could increase public support of the west coast pipeline, by announcing a new plan to protect Canada's oceans.
Trudeau wound up unveiling this "Oceans Protection Plan" on Nov. 7, 2016, with other members of the government. But at that time, none of the ministers confirmed that they were about to approve the Trans Mountain project.
The memo indicated that Tremblay and deputy ministers from other federal departments had a 90-minute conference call on Nov. 3 to discuss the "communications rollout and implementation" of the coastal strategy, stating that it would address concerns raised by Indigenous groups and other stakeholders. The memo also made it clear that the government was looking at using the new coastal strategy as part of its public relations efforts to promote the Kinder Morgan pipeline.
“We will also work with Transport Canada to leverage the OPP initiatives as part of a future announcement on TMX, should the project be approved," said the memo to Tremblay, signed by Erin O'Gorman, who at that time was an assistant deputy minister at Natural Resources Canada. "This could involve, for example, re-announcing select OPP initiatives and providing additional details on how the overall marine safety system in southern British Columbia is being improved…”
More than a year later, the federal government has still not provided details about how it will allocate resources, $1.5 billion over five years, and beef up oversight.
Ongoing court cases
Meantime, the government's approval of the Trans Mountain project continues to be disputed in court.
Last October, a panel of justices in the Federal Court of Appeal, heard arguments on 15 consolidated challenges, explained Eugene Kung, a staff lawyer at West Coast Environmental Law, a firm that is supporting the legal challenge.
"First Nations are saying it wasn't a meaningful dialogue," Kung said. "It was a one-way street, where First Nations expressed frustrations, to people with no power or authority to make changes. That doesn't uphold the honour of the Crown, reconciliation or a nation-to-nation relationship."
"The case encapsulates some of the most important themes of our time: climate change, Indigenous rights, the nature of Canadian federalism, and the influence of the oil industry on our democratic institutions, to name a few," Kung wrote in a blog post, summarizing the challenges.
A ruling on the federal approval is expected within the next six months.
As for the provincial project approval, the Squamish Nation challenged the B.C. decision in November in a Vancouver courtroom. The City of Vancouver also challenged the decision. The nation and city called on past court cases that emphasized the court’s duty to consult, as seen in the Enbridge legal challenge. A court decision on the provincial approval is also expected in the coming months.
Trudeau previously said he would restart Kinder Morgan review
Under existing Canadian laws, companies require federal government approval to proceed with interprovincial or international pipelines. The government would normally make a decision based on recommendations from an environmental and economic assessment done by the NEB, a federal pipeline regulator that has been criticized by a Trudeau-appointed panel which recommended it be replaced by a new organization and new leadership based in Ottawa, instead of the NEB's current home surrounded by oil industry headquarters in Calgary.
Prior to 2012, assessments of these types of projects were done by a joint panel made up of different government officials, but this changed after the Harper government rewrote Canadian environmental laws in 2012, handing these responsibilities over to the NEB.
During the last election campaign in 2015, Trudeau criticized the changes, accusing the Harper Conservatives of being cheerleaders for the oil industry, instead of providing objective oversight. During a campaign event, he also said that the review process under the NEB would have to be redone for the Kinder Morgan project and others.
Once in government, however, Trudeau decided not to restart any reviews, choosing instead to make some interim changes that would require an independent panel, appointed by the government, to conduct an additional review of the NEB's assessment and make additional recommendations to cabinet.
The government is still reviewing Canada's environmental laws and has not yet announced what changes it will make. Environment Minister Catherine McKenna told CBC's The House in an interview broadcast on Saturday that new legislation would be introduced within weeks that would apply to future industrial development projects.
While the opposition by some First Nations to the Kinder Morgan project has been no secret, the newly-released memos and briefing notes, prepared for the department, are the first documents to be released that show how public servants had specifically outlined the negative feedback about the consultations for Carr.
The concerns expressed by First Nations regarding the Kinder Morgan process are similar to criticism of consultations surrounding the terminated Northern Gateway Project, a pipeline proposed by Enbridge to ship oilsands crude from Alberta to Kitimat, on the northwest coast of British Columbia. The Enbridge pipeline was ultimately rejected by the Trudeau government in 2016, after the Federal Court of Appeal quashed an earlier federal approval of the project by the Harper government due to inadequate consultations with First Nations.
When confirming approval of Kinder Morgan's pipeline, Trudeau's cabinet explained in a published statement, based on the advice of Carr, that it was aware the project could have serious implications for the treaty rights of different First Nations, but that it was rejecting their request for further consultations about the pipeline.
"After almost two years of consultations and with reference to the consultation record, the Government of Canada determined that consultations had been reasonable both procedurally and substantively, and that there was no reasonable prospect that additional time would alter or enhance the outcome," the government said, as it instructed the National Energy Board to issue construction permits, while requiring the company to adhere to 157 separate conditions.
with files from Mike De Souza
Editor's note: This article was updated at 10:00 a.m. on Jan. 22 to correct the date that National Observer received its response to the access to information request from Natural Resources Canada to Jan. 12, 2018.