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.

"It was absolutely part of the equation," Prime Minister Trudeau said of securing a national climate plan through approval of the Trans Mountain expansion.

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 it’s spill response, whether it’s being able to continue to protect the land and respect the people on it — these are things that are integral to our government."

National Observer's Sandy Garossino interviews Prime Minister Justin Trudeau in his office on Parliament Hill on Tues. Feb. 13, 2018. The pair discussed his government's approval of the Kinder Morgan Trans Mountain pipeline expansion project and its benefits to Canadians. National Observer video

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.

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.

Indigenous activists lead a protest through the streets of downtown Vancouver on Nov. 29, 2016, after the Trudeau government approved the Kinder Morgan Trans Mountain expansion. File photo by Roger Pimente

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.

Prime Minister Justin Trudeau and Sandy Garossino discuss the pros and cons of the Kinder Morgan Trans Mountain expansion from his Parliament Hill office on Tues. Feb. 13, 2018. Video screenshot by National Observer

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.

Prime Minister Justin Trudeau and Alberta Premier Rachel Notley chat with reporters on Parliament Hill on Nov. 29, 2016 — the day his government gave the green light to the Trans Mountain expansion project. Photo by The Canadian Press

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."

Comments

so because BC already had a carbon tax and Alberta did not, Trudeau sold out BC so he could get Alberta to agree to one. Wow that's like saying to your good child I will sell you off to your mean sibling so that the mean sibling will agree to be good. Lots of logic there Trudeau!

Getting a national carbon tax in Canada is a massive achievement. Canada is one of the most carbon intensive economies on the planet, and many people (mostly the Conservatives) said it couldn't be done.

A single pipeline in exchange for a permanent yearly draw down in carbon emissions is a great trade off.

It is understandable why the Horgan was against the project initially, but this is a classic example of them not being able to see the forest for the trees.

People need to face up to the reality that the Conservatives will be in power sometime in the next several years, and if TMX fails, they will use that as a reason to cancel the price on carbon nationally, and then ram through a dozen more pipelines under weakened environmental process.

If TMX succeeds under a new carbon pricing plan, it will prove that Canada can have a functional industrial sector while drawing down carbon emissions at the same time.

As we listen to Trudeau explain away his decision and broken promise about Kinder-Morgan and the trade-offs between climate change action and reducing economic dependency on oil, we must never lose sight of some facts.

The first is that the Trudeau government's Pan-Canadian Framework on Clean Growth and Climate Change, according to every independent assessment, isn't ambitious enough for Canada to meet its Paris climate change agreement targets.

The second fact is that Canada's Paris agreement targets were set by Stephen Harper and they're too weak to do anything significant. When the targets were set, the Liberals condemned them as not ambitious enough.

The third fact is that Trudeau's plan makes it more likely that Canada's GHG emissions will increase, albeit more slowly, and not decrease as Trudeau and his eager environment minister claim.

Canada, under Trudeau, where worse is always possible, is destined to remain a climate change laggard.

Thank you - couldn't have said it better. Trudeau and the Libs need to be confronted with these facts at every opportunity presents itself. They lied and this betrayal about pipelines and climate change is much worse than any other betrayal they have committed including election reform. We were foolish to elect them. Harperites in disguise..

Alberta is in a tough place . Their biggest industry is killing their province environmentally and in the longer term ,financially.

Absolutely correct. The environmental disaster happening in Alberta has been ignored. Expansion of fracking and oil sands activities as a result of this pipeline will destroy Alberta's water and the over 30% of Canada's arable land that is found in Alberta, not to mention the increase in climate-changing emissions.

Trudeau doesn't know what a "trade-off" is. With the economic risk to BC of a pipeline, or Alberta on the off-chance that the UCP actually does get elected, there's no way his voter base in southern Ontario will be able to receive the equalization payments they'll desperately need if the Ontario PCs get elected. It's a lose-lose.

Whoa, Prime Minister. Firstly, the ministerial panel that was appointed by the federal govt. to review the NEB approval process for Kinder Morgan was not an expert panel. Most folks who attended these ministerial consultations were against the pipeline, including some very informed respondents. The panel had no way to test evidence just as the NEB did not....no cross examination of proponents and their experts .Where were the majority of those consulted in favor of the pipeline. Why were they not at the ministerial consultations? The NEB process was deeply flawed: no cross examination of proponents,NEB required a small % of questions put to Kinder Morgan answered, spill risk and containment plans kept from Vancouver and B.C., etc. There are so many pieces to Trudeau's pro pipeline argument that do not stand up to scrutiny. Not at all: Trudeau talks about a climate package; That world class spill response will be put in place,;that a carbon tax would be imposed on Canadians including Alberta, that the B.C. coast is not at great risk for a dilbit spill ; that Trudeau's CO2 / green house gas mitigation plans would allow Canada to achieve its Paris commitments; that a rigorous review of the risks and benefits of the pipeline has taken place based on science; that First Nations who would be most affected by a catastrophic dilbit spill have been meaningfully consulted and that it is in the best interests of Canada to proceed with the pipeline. Well, let's have a closer look at these statements of Trudeau's. Firstly, Trudeau's mitigation plans for CO2 reductions including a $50.00 a ton carbon tax, reducing use of coal etc amount to a 35 MT /annum reduction. Well, Kinder Morgan will add 125MT C)2 to atmosphere, Line 3 another 5 MT C02, Keystone XL which Trump is backing, about 180 MT C02. There is no way Canada will meet its Paris commitments. If Premiere Horgan is successful. or a new govt. in the future, in having fracked LNG plants like the failed Petronas project, you would be looking at 3 billion tons of C02 emissions over a 30 yr. period including lifecycle emission and a conservative 1% methane leakage rate . How does that meet our Paris commitments. It falls far, far short. Now, including First Nations in a world class spill response infrastructure is a slight of hand Prime Minister. You received days before approving Kinder Morgan a submission from world class scientists that a review of all available scientific analysis related to dilbit spills and the possibility of a cleanup, that there was little research to make any such conclusion. The NEB was not tasked and did not review the very serious risks of a tanker spill double the size of the million gallon Kalamazoo, Michigan spill which Concerned Engineers of B.C. estimate has a 10% chance of occurring in 50 year lifespan of the pipeline,. In fact there was a real concern that cleanup would not be possible. The Trudeau govt. disregarded this science in favor of science they will not make public. Put your scientific cards on the table Prime Minister. As well, a likely scenario has Jason Kenny and the conservatives forming the next Alberta govt. Rachael Notley's agreement to a carbon tax is on thin ice and her so called commitment to mitigating Alberta's carbon footprint would be out the window. Prime Minister, that your trade off for Alberta and Saskatchewan's agreement to a carbon tax is to put B.C.'s coast at grave risk is tantamount to throwing B.C. under the bus. Kinder Morgan is a carbon bomb. Kinder Morgan is dividing Canada and even putting our confederation at risk. Kinder Morgan may well be lethal to B.C. cost. Your approval of the project after your solemn campaign promise to overhaul the flawed NEB review which you utterly broke has eliminated your governments credibility . I ask you Prime Minister: do you rely now on courts throwing First Nations legal challenges , on being able to intimidate thousands of protesters exercising their right to reject this terrible project by arresting and jailing a few hundred, or will you rely on Kinder Morgan to initiate devastating civil suits on individuals who can ill afford the finances to hire lawyers (SLAPP suits). Rule of law you say. And if this law supports a decision that destructive in so many ways? What then?

Brilliant. Thank you.

Thanks for these comments.
It's obvious to anyone who has been following Trudeau and his 184 gutless MP's that they are totally in the corporation's pockets or that Harper has gotten a holed of Trudeau's mask.
This, and the change in the voting system
to make every vote count is just one more promise that he does not intend to follow up on.

Frustratingly absent from this article is that neither the initial nor the subsequent the assessment of the KM Trans Mountain Pipeline considered the environmental effects of the end use of the fossil fuels that would be transported. Absent such an assessment, there is no way to judge whether KM is compatible with a meaningful climate action plan.

It seems as though the lack of assessment of end use GHG emissions may not have been reliably corrected in the new environmental assessment regime.

I would appreciate it if the National Observer would do some articles on the relationship of the national climate action plan with the export of GHG emissions through the export of fossil fuels.

Adam Buckley, I think the quote "trade off" is meant in the context of environmental protection. Trudeau sees it as a trade-off for a greater benefit in environmental protection in the longer term. I think the issue here is that this particular trade off is deemed unacceptable by many.

Thank you Elizabeth McSheffrey for clarifying some of Notley and Trudeau's motivations for us.

What is missing from Trudeau is any consideration of other means of getting Alberta’s bitumen to markets. There is at least one much better method.

Trudeau . what a sad foot note in Canadian History .

harper: Party Of One
Scheer: Party Of Another One

This interview never asked the question that is the most crucial.
That is, It's not if there is a catastrophic spill but when there is a spill in the straights of Vancouver or inlets, there is no way of protecting these sensitive areas after that happens.

Why not spend the 1.5 billion dollars on renewable energy, and let the tar sand oil sleep where it is now.
This would produce more jobs in the short and long run and put money where it matters.

The simple fact that pipelines always leak ( it's just a question of when, where and how much) and that that there is no known way of cleaning up dilbit should have ruled out pipelines to the environmentally-sensitive BC coast long ago. Better to leave the heavy crude in the ground until it is needed in the future when the price would be high enough to process it carefully in Alberta.

The clear and windy skies should be harnessed to generate electricity which could be used in Alberta or be safely distributed to customers 1,000's of kilometres away.

During the 2015 federal election campaign, Justin Trudeau and the Liberals promised to run a government based on transparency with the ultimate goal of being “open by default”. They also promised that governance would be based on evidence-based decisions that, in turn, would rely on science and situational facts. However, within his first year he gave signals that his real theory of government was actually in line with the 1950s TV show “Father Knows Best”in a situation where he was taking the role of the father.

During the election Trudeau acknowledged that many Canadians had no faith in the National Energy Board (NEB). A number of people who voted for him believed that that meant projects underway would be re-evaluated using a lens showing more respect for the environment than Harper’s anti- environment environmental assessment process. However, almost immediately after the Liberal government was sworn in, Trudeau announced that it would not be “fair” to judge projects underway by different standards. This was an excuse to let certain project go forward without adequate review. It was never necessary to start from scratch. The assessments could have been examined in a new light and deficiencies ordered corrected rather than redoing the entire assessment. Indeed, when approving the Kinder Morgan pipeline and in the interview that was the subject of this article, Trudeau claimed that the Liberal government did extra consulting with citizens and indigenous groups. However, those who were consulted suggested that first nations believed these consultations were ““paternalistic” (as well as) both “unrealistic” and “inadequate.”

Despite the fact that “...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”, the government approved the Kinder Morgan pipeline in November, 2016. At the time of approval, Trudeau said he trusted the NEB assessment despite the fact that he acknowledged many Canadians did not and also despite the fact that the assessment was totally inadequate even on such basic matters as risk assessment and an emergency plan that applied to the old pipeline only.(See resignation letter from Robyn Allan (link: https//dogwoodnitiative.org/robyn-allan-withdraws). The Liberal government also ignored the fact that in November, 2015, the Royal Society of Canada had published a report indicating that more research on the effect of dilbit in water required more research because little was known about how it would react in water.

And so, while Trudeau maintained that he was using evidence to make the decision on Kinder Morgan at the time of the decision, less than two years later he acknowledges that the decision was a trade-off to get Alberta support for his climate change “plan”. In short, Trudeau has made a political decision to risk polluting the ocean around BC in the hope that his climate change “plan” will succeed. He will then say that he made the proper environmental choice despite the fact that it was largely political and the project was not evaluated on a standalone basis.

Given the mix of policies/laws that the government is currently set on passing, Canadians can expect much more of this type of situation in the future. In future, assessments are to be carried out by a new agency. While the policy states that economic, environmental, social, regional, health issues along with indigenous rights and culture are to be considered in the new “impact” assessments, it does not give any indication of the weight that was given to each of those factors in any given decision. Theoretically, the Cabinet will be required to explain its decisions. However, based on its lack of transparency with respect to previous projects such as Site C, Canadians may be expected to accept an explanation such as they went by the evidence, without explaining what that evidence is or making it public so citizens can make their own judgment. Since it will be decided whether or not project is in the “national interest” before any of the various assessments are undertaken, it is likely that environmental assessments will be limited to identifying mitigating measures to be taken when the project is accepted.

As a final blow, citizens will not be able to be certain whether or not a project is accepted as part of a political deal or based on its merits.. At the time of approval, the government will, no doubt, insist that the project is based on “evidence”. But some time after the approval we may learn, as in the case of Kinder Morgan, that it was part of a political trade-off.

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