Prime Minister Justin Trudeau is confident that his approval of Kinder Morgan's Trans Mountain expansion will withstand legal challenges from First Nations who say they were not adequately consulted on it.
The federal government "went through all the right steps" before giving the green light to the hotly-contested pipeline project, he told National Observer in an exclusive interview on Tuesday afternoon.
Delivering pointed arguments in favour of a plan he said would eventually wean Canada off its dependence on fossil fuels, Trudeau said his government is also providing tools to accommodate First Nations affected by the west coast oil pipeline expansion project.
"We have worked with Indigenous communities who have concerns," said Trudeau. "We are giving them the tools, the information that they need. Some of them are happy and are supportive; some continue to have concerns.
"We continue to work with all of them to improve the capacity, whether its spill response, whether its being able to continue to protect the land and respect the people on it — these are things that are integral to our government."
Kinder Morgan went through a 'better process'
The prime minister's interview with award-winning columnist Sandy Garossino comes only days after the federal government introduced legislation that, if ratified, would overhaul the way it assesses major energy projects and protects the environment.
"It was absolutely part of the equation," Prime Minister Trudeau said of securing a national climate plan through approval of the Trans Mountain expansion.
The Trans Mountain expansion was not subjected to those new and improved standards, but Trudeau said the interim measures his government put in place with the National Energy Board (NEB) regulator ensured that the pipeline's approval respected Indigenous rights.
"The process that Stephen Harper set up was flawed, which is why, through a transitional process, we added to the Kinder Morgan evaluation process the kinds of consultations — the kinds of science, that we are now demanding for all projects as of now, with the new system," he said. "... So we actually managed to apply a better process to get to the Kinder Morgan decision."
Over the last five years, oil pipelines have emerged as one of the most divisive issues in Canadian politics. The Trans Mountain expansion alone has tossed a wrench into the relationship between two NDP premiers in British Columbia and Alberta, launching a trade dispute that spans from wine exports to electricity sales.
The federal government approved the controversial pipeline project in November 2016, subject to more than 150 environmental, financial and technical conditions. Upon completion, it would add 987 kilometres of brand new infrastructure to an existing pipeline system, allowing it ship up to 890,000 barrels of oil per day from Alberta to the B.C. coast.
But the project is opposed by more than 20 municipalities in the vicinity of the pipeline route, and at least 17 First Nations, many of which have never ceded their traditional territories through treaties.
Could consultation survive court test?
In November 2016, a federally-appointed panel of experts — charged with reviewing the NEB's assessment of the Kinder Morgan expansion — found that many First Nations felt consultation on the project had been "narrow." Despite these findings, later that month, it was given the green light by Trudeau in Ottawa.
Last month, a National Observer investigation further revealed that the government was warned in a series of internal memos that First Nations believed its “paternalistic” approach to consultations was both “unrealistic” and “inadequate.”
Those memos also highlighted how more than half of the 114 Indigenous groups affected by the project told the government that they needed more time for consultations.
In light of such findings, Garossino asked Trudeau whether his actions would leave the pipeline approval on "thin ice" in Canadian courts, which have established that the federal government has fiduciary duty to fully consult Indigenous peoples.
The prime minister responded "no," but did not confirm whether his government sought legal counsel on whether its approval of the project would withstand a First Nations court challenge. He said his government takes a "rights-based approach" to reconciliation, and will continue to work with all Indigenous partners to allay their concerns about the project, whether they involve risk of oil spills, noise pollution, or dangers posed to spawning salmon and southern resident killer whales.
Trudeau saw pipeline as part package in 2015
Speaking from his office on Parliament Hill, Trudeau confirmed that expanding market access for the oilsands industry through a project like Trans Mountain was “part of the equation” on climate change as early as 2015.
At that time, his government was pushing for ambitious global targets to reduce greenhouse gas emissions at international negotiations in Paris. Trudeau was also relying on action from Premier Rachel Notley’s NDP government in Alberta that pledged to put a price on pollution and cap emissions from the oilsands.
The action, he revealed, “was linked” with approval of the Trans Mountain project.
"So in order to get the national climate change plan — to get Alberta to be part of it, and we need Alberta to be part of it — we agreed to twin an existing pipeline in order to get to work," he explained.
“It was always a question of, if we could move forward responsibly on the Kinder Morgan pipeline, then Alberta would be able to be as ambitious as we needed Alberta to be and get on with the national climate change plan... Yes, they were linked to each other."
Trudeau said the Trans Mountain expansion "was always a trade off" for Notley's unprecedented climate action. That certainty and support, he added, put Canada on a pathway to achieve its Paris climate change targets and is part of the economic and environmental package that makes the pipeline so important.
Complications with premiers and pipelines
Yet as Notley continues her trade spat with B.C. Premier John Horgan, who has vowed to fight Trans Mountain's approval with "every tool" available to him, Trudeau admitted that another "real challenge" could still be around the corner when it comes to premiers and the pipeline.
In 2019, Alberta will hold a provincial election that could see United Conservative Party leader Jason Kenney unseat both Notley and her commitments to climate action. Kenney has previously vowed to resist the federal government's carbon tax and defend the province's coal industry — both of which are key planks of Alberta's current Climate Leadership Plan.
If that's the case, said Trudeau, a "federal backstop" will ensure that Ottawa collects on the carbon tax anyway, and returns it to the appropriate provincial jurisdiction. But the government would rather do that in partnership with premiers than against them, he added.
The prime minister accused B.C.'s Horgan of "trying to scuttle" Canada's national climate change plan through his efforts to stop the Trans Mountain expansion. He accused former Saskatchewan Premier Brad Wall of doing the same thing through his opposition to the carbon tax, "even though he likes the fact that it got pipelines approved."
The reality is, said Trudeau, the Trans Mountain approval "was an unavoidable element in a national climate change plan." But so were the policies that came before and after it: a $1.5-billion oceans protection plan involving Indigenous communities, investments in Canadian coast guard stations, legislation to strengthen protection of Canada's waterways and species at risk, an overhaul of the federal pipeline regulator, and more.
"You can’t have all those things unless you have all those things together, that is the point," he told Garossino. "My role as prime minister is to make those difficult decisions. If this was an easy choice to make people would be able to make it easily and there’d be support.
"But there are competing interests in place and what Canadians entrusted me with as a responsibility, is figuring out the best path forward — the path that’s going to protect the environment, that’s going to ensure that we have jobs while we move forward into a transition off our dependency on fossil fuels, that makes sure that we are creating the kinds of supports that will protect our marine life and our oceans while reducing climate change. These are all things that go together and this approach is one that I stand behind as a federal government."