In a broad and sweeping interview with this writer on Feb. 13, a confident Prime Minister Justin Trudeau came out swinging on behalf of Kinder Morgan’s Trans Mountain pipeline expansion (TMX). Pulling no punches, he took direct aim at both Saskatchewan’s former premier, Brad Wall, and B.C. Premier John Horgan. The federal government sees both TMX and carbon pricing as integral to Canada’s Paris commitments and its pan-Canadian climate framework.

The prime minister has a simple message to all comers. Canada’s climate deal comes with tidewater access for Alberta oil, full stop. Don’t mess with this nexus.

And Trudeau made it clear that a similar drubbing is in store for United Conservative Party Leader Jason Kenney, should he at some future time try to tear up Alberta Premier Rachel Notley’s price on carbon. Repeal those terms, and Trudeau will assert his federal authority and impose his own on the province.

But listening closely to the prime minister, one gets the sense there is still unfinished business, and this project is in for some very heavy sledding.

Prime Minister Justin Trudeau sits down with National Observer's Sandy Garossino to talk about his decision to approve the Trans Mountain pipeline expansion project. National Observer video of full interview

Genesis of a historic climate agreement

Looking back, it’s plain how this deal came together. In the heady days of his unexpected October 2015 majority victory and the looming Paris talks, Trudeau needed a big climate win, and fast. And there was Notley, ready to deal. Her province was deep in recession with no end in sight. Global oil was in the basement and Alberta was stuck with rock bottom prices dictated by its only customer, Uncle Sam.

As all of these factors gutted the provincial treasury, major international oilsands players virtually all pulled up stakes and blew town.

How can the government justify shareholders and various levels of government pulling in billions from Kinder Morgan's expansion using First Nations lands, while Indigenous Canadians are on boil water advisories? asks @Garossino #cdnpoli #TMX

A softened-up industry was ready to play along. They’d support Notley’s carbon tax, emissions cap, and coal phase-out, but only if they could access higher global prices for their oil. They believed they could do that by getting it to tidewater in a way that by-passed the huge cost of rail transport. They needed a pipeline to the coast. To any coast with ports serving overseas markets.

The moment seemed as perfect as it was historic. A once-powerful industry on the ropes, ready for concessions. A new and ambitious NDP provincial government poised to lead. A euphoric nation committed to climate reform and hitting the global stage at Paris with a plan.

Of course Trudeau saw his opening and took it. Anyone experienced with hammering out tough agreements would.

Any niggling smaller problems could be left for later.

Well, it’s later now, and the problems, once so small in the distance, are suddenly looming very large indeed.

It bears remembering that, in addition to climate change, the freshly installed prime minister embarked on one other pre-eminent national objective in 2015: fully embracing reconciliation and defining a new relationship with First Nations.

National climate framework and Indigenous policy on collision course in B.C.

Those two signature goals — a national climate framework and the repair of federal relations with Indigenous Canadians are now on collision course in British Columbia. Right on the heels of First Nations comes the highest concentration of committed environmentalists in Canada, if not North America. And they’re in a fighting mood.

First Nations territorial sovereignty is a uniquely thorny issue in B.C. because, unlike most of the rest of Canada, no treaties establish Crown authority for the vast majority of the province. The exact scope and limits of Indigenous title has yet to be settled.

Tsleil-Waututh Nation, Rueben George, National Energy Board, Kinder Morgan, Trans Mountain pipeline expansion, Burnaby, pipeline protest, Indigenous rights
Tsleil-Waututh leaders (left to right) Gabriel George, Charlene Aleck and Rueben George sign the Treaty Alliance Against the Tar Sands in Vancouver on Thurs. Sept. 22, 2016. File photo by Elizabeth McSheffrey

In June, 2016 the Federal Court of Appeal quashed the NEB’s Enbridge Northern Gateway approval for an inadequate First Nations consultation. The same court is currently hearing a virtually identical challenge of the NEB’s approval of Kinder Morgan’s TMX project.

Can Kinder Morgan’s TMX succeed where Enbridge failed?

Language of the powerless

Just about everyone familiar with Kinder Morgan credits their process with greater sensitivity and good faith than the Northern Gateway applicants. Yet a ministerial panel of experts in governance and public policy, struck by Natural Resources Minister Jim Carr, raised serious questions about the overall process.

What emerges from that 58 page report isn’t a picture of a rejuvenated federal relationship with First Nations, but a second verse, same as the first. The ministerial panel’s report cited fairly typical examples:

“In Chilliwack, for example, Seabird Band member Tyrone McNeil said,

‘We haven’t seen detailed design. We haven’t seen emergency response plans. We haven’t seen any analysis of the effect of a spill or a recovery strategy for salmon and sturgeon. Especially with the recognition of UNDRIP (UN Declaration on the Rights of Indigenous People, signed in by Canada in 2016), the timelines need to slow down…’

Excerpt from report by the Trudeau-appointed panel reviewing the NEB's recommendations on the Trans Mountain expansion project.

And Cheam Chief Ernie Crey offered a final thought on context.

‘I sit up nights wondering what a spill into the Coquihalla River might look like. Even a small spill into the Coquihalla would devastate salmon in the Fraser River and plunge First Nations into utter destitution. Global trade, investment, jobs: I know those are important, but consider what could be lost.’

In an introductory letter to the briefing note quoted above, Sunchild Chief Jonathan Frencheater said:

‘Sunchild is not categorically opposed to this proposed project, we simply wish to be included. We do not deny having been given the opportunity to speak to the National Energy Board, but we have not been heard. The NEB process has been unilateral; Kinder Morgan has not engaged Sunchild First Nation as a true stakeholder in this proposed Project, but as a bystander to be placated and bypassed.’

The panel heard variations of this complaint from many First Nations.

The panel also reported concerning language among many of the Indigenous communities that had signed benefit agreements.

"But some First Nations said that, as with the Scia’new, they signed the benefit agreements or letters of support out of concern that, if they failed to do so, they risked getting nothing at all. Kyra Northwest, of the Samson Cree Nation, said

"'You can oppose, but with the past government it (a proposed project) would get approved either way, so Samson Cree agreed just to be sure we would get something.'

"And Summer Ebringer, of the Enoch Cree First Nation agreed, 'The fear is that if you don’t sign and it goes ahead anyway, you get nothing.'

This is the language of the powerless, of people with no leverage or bargaining power. People who have been forced to grovel on their own land. In front of their own children.

Even the phrase "benefit agreement" sounds like welfare.

You know who never uses language like this?

Bankers. Insurers. Trading partners. The Canada Revenue Agency. Anyone with the power to sink your project like a stone.

Justin Trudeau, Ottawa, Sandy Garossino, interview, Kinder Morgan
Prime Minister Justin Trudeau answers questions from National Observer's Sandy Garossino during an interview in his Ottawa office on Feb. 13, 2018. Screenshot from National Observer video

​First Nations benefit agreements incredibly stingy

If there is one thing that should come out of the Kinder Morgan consultation process in this era of reconciliation, it's that they should never have to grovel like this again.

The prime minister needs to be as active on this file as he has been on climate.

Because the one thing that stands out about the Kinder Morgan Indigenous package is how incredibly stingy it is. According to the federal government, the proponents' "mutual benefit agreements" with Indigenous communities are valued at about $300 million, presumably over the multi-decade life span of the pipeline.

If that sounds like a lot, wait until you see what everyone else gets.

Kinder Morgan estimates that Canadian oil producers will generate an additional $3.7 billion a year from access to foreign markets. Over 20 years, that's $74 billion. Total federal, provincial, and municipal taxes generated from the project over 20 years are estimated at nearly $50 billion.

The B.C. First Nations, who are forced to pony up the critical lands to uncork this gusher of billions, get about $15 million a year, over 20 years.

That's a disgrace.

Kinder Morgan Canada, pipeline, Trans Mountain expansion, handout
Kinder Morgan Canada is proceeding with the Trans Mountain pipeline expansion project linking Alberta to the west coast of B.C. Photo courtesy of Kinder Morgan Canada

How can the government justify shareholders and various levels of government pulling in billions from Kinder Morgan's expansion using First Nations lands, while Indigenous Canadians are on boil water advisories?

Seriously, Aboriginal communities need to get together and hire LeBron James' agent asap, because if LeBron plays 20 years he'll out-earn them by $200 million on his NBA salary alone. And he plays for Cleveland.

Of course, none of this comes as any surprise. The history of development in Canada is always "sorry not sorry."

If Canada sincerely wants to change course on its First Nations' relationship, then it must lead on pipeline benefits today.

Trudeau opening the door to court challenge?

As things stand, the NEB's approval of Kinder Morgan's TMX is under challenge by a number of First Nations in the Federal Court of Appeal, where it may fail.

The Supreme Court of Canada ruled in the Tsilhqot’in decision that the government must meaningfully consult with First Nations holding title.

In any genuine consultation there ought to be some possibility that a given project may not proceed, depending on consultation outcomes. If that possibility isn’t present, any negotiation or “consultation” is a charade.

Prior to any incursion on Aboriginal territory, the government must demonstrate a compelling objective, show that it has executed its fiduciary duty, and that incursion on Aboriginal land is essential to its goal.

On this score, Trudeau’s answers were telling.

Justin Trudeau, Sandy Garossino, Ottawa, Kinder Morgan
During a Feb. 13, 2018 interview in his Ottawa office, Prime Minister Justin Trudeau tells National Observer's Sandy Garossino that he is getting frustrated by the antics of B.C. Premier John Horgan. Screenshot from National Observer video

It appears that the prime minister decided to approve the pipeline in principle even before the NEB made its recommendation. That’s before there could have been meaningful government consultation with affected First Nations, notwithstanding the extensive efforts by Kinder Morgan itself. The Federal Court of Appeal ruled in the Enbridge case that the government can’t delegate its consultation function to the NEB and license applicants, although a recent decision over the Enbridge Line 9 reversal project approval seemed to go the other way.

Even more significantly, by asserting his intention to act unilaterally if Alberta’s climate concessions are repealed, Trudeau signaled that his national climate framework may not really depend on that province after all.

If that’s the case, it doesn’t depend on the pipeline either.

(It’s also worth remembering that when this deal came together, then-President Barack Obama had just blocked the somewhat larger Keystone XL pipeline, which was also a route to the U.S. shoreline and global markets. In the yo-yo world of electoral pipeline politics, President Donald Trump brought Keystone back into viability, just as Horgan moved to block Kinder Morgan.)

If the courts conclude that Kinder Morgan's TMX is purely a bargaining chip to bring Alberta onside as a political benefit for the prime minister, this entire exercise could be doomed. Nor is it a great look for a leader embarking on a definitive new framework for Indigenous rights.

Which is probably why Trudeau’s intimates that negotiations are continuing apace to bring First Nations onside with project benefit agreements. If the Canadian government is intent on this course, Minister Jane Philpott should get into the mix and sweeten the pot for all First Nations. As they stand, these benefit agreement numbers should shock the conscience of Canadians.

T​he environmental crucible

Even if Kinder Morgan clears the hurdle of a First Nations court challenge and First Nations activism, it must then confront formidable opposition from B.C. environmental activists. For better or worse, not every goal a government sets is politically achievable. Kinder Morgan may become a crucible for the Canadian government and the environmental movement alike, the likes of which we have not seen in a generation.

As it pushes through dozens of kilometres of Fraser Valley farmland, the expanded pipeline will enter into the densely populated heart of Metro Vancouver, home to 2.5 million residents, and more than half the total B.C. population.

Forty-nine per cent of all Metro Vancouverites, or a population roughly the size of Calgary, oppose the pipeline. According to local polling firm Insights West, one in four of those would consider some act of civil disobedience to stop it. That’s a whole lotta handcuffs.

Anyone who deludes themselves that opponents are gullible pawns of shadowy American interests might remember that British Columbia has done more to export environmental activism to the rest of the world than the reverse. This is the DNA of Vancouver, and always has been. If you don't love the coast and the natural world around it passionately, there are better places to make a living.

It was in Vancouver that Greenpeace was born. It’s the home of Tzeporah Berman, architect of B.C.’s epic battle over old-growth clear-cut logging in Clayoquot Sound. It’s where Canadian Paul Watson founded the Sea Shepherd Conservation Society. Occupy Wall Street even got its beginnings in Vancouver (look it up). Tides Canada and the David Suzuki Foundation are both based in the city.

Mayor Gregor Robertson’s environmentally-inspired Vision Vancouver has dominated City Council for a decade. B.C. is the only province where the Green Party has elected candidates municipally, provincially and federally. It currently holds the balance of power in John Horgan’s minority government.

In other words, Metro Vancouver, Vancouver Island, and the B.C. Gulf Islands along the tanker route are home to the highest concentration of environmental activists and voters in Canada, if not North America. If this project proceeds, oil tankers will sail past David Suzuki’s waterfront Vancouver house every day for the rest of his life. These are not hobbyists or rent-a-crowds. It is difficult to overstate the intensity, resolve, and sophistication of the forces now gathering to oppose Kinder Morgan's TMX as it prepares to push into Metro Vancouver. This fact has not escaped Premier John Horgan. Make no mistake, Justin Trudeau’s steel is about to be tested in a way few have anticipated.

How far will he go?

Canada will just have to watch him.

Fasten your seatbelts, everybody. We’re in for a bumpy ride.

Keep reading

The article repeats the old saw that access to markets is going to bring about an economic bonanza.

Hi Stephen, Sorry to remove your link, but we can't publish raw links in the comments section or Google reads it as spam. Thanks, Linda

Exactly. I'd like a National Observer investigation into those pipe dreams as well...where are these markets, and why are they prepared to pay so much more for a raw material, once it gets to tidewater? It's still an unrefined junk product. Who wants it??

Well, I think it is very sad that there is any suggestion that better compensation to First Nations to go along with Kinder Morgan would be a step in the right direction. Holding a people hostage after decades and decades of government abuse, after taking it for granted that the land and resources are up for a free for all first come first serve. Well, first come were here millennia before the settlers. No, a better economic deal for First Nations should be a given without the condition they approve a pipeline clearly destined to a inevitable dilbit spill of gigantic proportions in the Salish Sea, a spill impossible to clean up, and which sinks Canada's Paris climate commitments like a stone. This article is somewhat disturbing, having a focus on a better compensation package for First Nations. It does expose the toxic agreements some First Nations have made to try and get something out of once again a deal rammed down their throats. Shame, Trudeau. You have no idea what fate awaits a project born with such a belligerent, attitude.

The details of aboriginal compensation doesn't bother me, because it underlines in dark ink, how mean spirited we actually are, and how little reconciliation means anything substantive to Canadian elites. It sounds good, it looks good...on their resume. But once we get down to brass tacks, it doesn't mean any real money, or any recognition of how much we've taken over the years....and how much we continue to bully them in private, while walking and talking proud in public.

Besides, I think Aboriginal leaders know that no amount of money will compensate for a major dilbit any of the salmon bearing rivers, or the Salish Sea.

As the article makes clear, Trudeau and supporters of the pipeline continue to be willing to gamble an ecosphere that may be the most fertile left in the world...for Petro bucks that the still believe are going to flow for the next 40 usual.

If First Nations were white, they'd be called "landlords" and they'd be the richest people in the country.

Excellent analysis. One aspect that's underemphasized here, though, is the flimsiness of the scientific evidence supporting the pipeline approval. Trudeau promised science-based policy-making during and after the election campaign, but there is no credible research on bitumen spills in real-world conditions. If I and others feel moved to civil disobedience against the pipeline expansion, at least part of the anger we feel is at the blatant neglect and misrepresentation of science in the approval process. That includes the willful disregard of completely foreseeable impacts on carbon emissions.

You make an essential point. And as for Justin's Ocean protection plan, that only goes into effect if the Kindermorgan is accepted....the sum, spread over several years, is so paltry I can't imagine how it would be anything but a symbolic promise. Wasn't it only 1 1/2 billion over five years, or something in that neighbourhood? And what exactly does that money buy?

Sounded like window decoration to me, when he announced it.

Yes, $1.5B over 5 years - nationally - that is, for 3 coastlines. Spread evenly, that's only $100M per year per coast.

The government must be pressed on what portion of the $1.5B is actually for B.C., and specifically targetted on oil-spill prevention, preparedness and response, since they bandy that number about as if it's all coming B.C.'s way.

I've been finding it hard to believe that even fairly incisive commentators such as Sandy Garossino never seem to say anything about the basic contradiction embedded in claiming that expansion of the dirtiest, most carbon-intensive sources of fossil fuels in the world is an "essential part" of plans to combat climate change. Let me see now, what was it that was CAUSING climate change? Can anyone remember? It would seem Prime Minister Trudeau can't.
I might perhaps be inclined to give him a pass if he was actually doing anything much about climate change. But a small carbon tax is pretty much nothing. It's around the same scale as the BC carbon tax that has been having no obvious impact for years now. There are no projections suggesting it's going to make more difference than spitting into the wind.

B.C. Environment Minister George Heyman is developing an Intentions Paper without announcing the intentions ?. British Columbia has launched public consultations on how to defend its shores from oil spills.

For those trying to grasp the magnitude of the issue of large tankers in our local south coast waters ,see link below:
This info was published in the Globe and Mail and was compiled with the effort of a group of volunteer (Concerned)Professional Engineers,CPE, and donations from other BC supporters.

“This is about anyone who transports oil through the province.” …. Yes, we must make our maximum effort to minimize the probability of a MAJOR tanker spill incident…
Is the BC objective to kill the Trans Mountain Expansion(TMX) pipeline export plan….
.or WILL/should BC consider a realistic opportunity to build a better diluted bitumen (dilbit) export plan for good of all Canadians ?
BC doesn’t need the TMX to create vessel spills…we get our share because most of our entire coastline communities are served vital goods typically by barge and tug arrangements. We have a long way to go to improve our handling of these typical (much smaller)spills. A recent tugboat fuel oil spill (Bella Bella) took too long to clean up. Some time ago there was a major mishap as BC passenger ferry was holed and sank near Gil Island. The ferry sits on the bottom still with its fuel still on board !! … BC and Canadian governments have done some planning to better handle existing,typical spills ,

So, what’s BC so worked up about ? When Trans Mountain first presented their dilbit export plan ,it required a 7-fold increase of multi thousand BARREL cargoes to travel out busy environmentally challenged waters. These waters and shores comprise many job intensive businesses, a major visitor industry in BC and does not need to sit and wait for that, inevitable ,mega thousand barrel big spill . We don’t see the need to continue to push for this unacceptabe TMX plan .
How unacceptable---we’ll see .
Sadly this kerfuffle could/should have been avoided if our Prime Minister had not been fixated on this goofy TMX plan. Scientists in Ottawa ,we hear ,now have more freedom to speak out ! Let our new Chief Science Officer show the way .
Yes the main concern is about inevitable dilbit spill on our beaches and into our marine ‘critter’ habitat !
We could /should be preparing a common sense export plan that gets Alberta bitumen to reach the waiting market…

The table is set to reach that goal…when the PM follows up with his offer to mediate this BC/Alberta export impasse.The new omnibus Bill C-69 allows for a more thorough assessment than did the NEB which recommended TMX to slip under the radar !
The table is set that shows how to build a less risky,more community permissible export plan given the new government assessment language in omnibus Bill C-69. Our PM and TMX can challenge the angry community and end up with NO PIPELINE or TANKERS…OR you can develop a more common sense ,less risky plan, a little later…if you create an export plan that directs tankers to sail from a port m say near Port Simpsonm which would be the terminus for a new pipeline from Alberta.
Our PM told us that only communities can give permission…we now know that no communities gave permission. Our science minister told us that our Science Minister explained that “We need to be basing our decisions ……on facts…..and …. SCIENCE “! Let our scientists show where the lest risky routes are located…No independent expert science was offered to the NEB which allowed them to select tanker routes that were less risky than those handy routes proposed by Trans Mountain .
The PM told us that the current assessment procedures were to be changed AND he told us that these new procedures would be utilized for the Trans Mountain Expansion(TMX)) pipeline ;they were not utilized !!Why not Mr. PM ?
Even our Senate, in their Pipeline Study, asked how to “…restore legitimacy to the pipeline approval process.” See ..... I’ve seen no response from our PM !
Thanks to Mike Priaro, P. Eng.,Calgary, we are shown an existing science based risk assessment of the BC and nearby coasts. .These reports (see links in the attached above) sat in government files since 1978…add the BC government traffic marine survey done in 2013 , which could assist in determining the least risk terminal location..
Fortunately the Omnibus Bill C-69.which incorporates fixes for many of the issues of public concern not addressed in the NEB recommendation for approval…
Now, our government expects the potentially impacted communities to let he ill-conceived TMX proceed-to proceed without first fixing it –
We ask our Supreme Court to bring this national issue forward for resolution ,and prevent the TMX to proceed as proposed.

Carl Shalansky, P. Eng. (Retired)
(604) 986-4657

"The prime minister has a simple message to all comers. Canada’s climate deal comes with tidewater access for Alberta oil, full stop."

You left out tidewater access to BC's fracked natgas.

That's two strikes of action against his words. You can't believe anything he says.