An investigation by Mike De Souza
Chief Maureen Thomas was skeptical as she walked out of Canada’s main Parliament Building on a brisk but sunny morning in autumn.
It was Nov. 28, 2016, and she had just given Natural Resources Minister Jim Carr four major reports highlighting extensive warnings about Kinder Morgan’s Trans Mountain pipeline expansion.
Thomas, chief of the Tsleil-Waututh Nation in British Columbia, said the project would harm her territory for generations to come.
“At the end of the day, it comes right down to water, food,” she said in an interview after her meeting. “When you keep depleting the natural resources — the health of them — it’s going to gradually flow out to everything else and that is really dangerous to our community and the surrounding area.”
She said she couldn’t help feeling that the government was just going through the motions — “checking off a box” on the list of legal obligations it needed to fulfill before officially approving the pipeline.
More than a year after the pipeline’s approval — and a major trade blowout between the provinces of British Columbia and Alberta — government insiders say she was right.
Speaking on the condition of anonymity with National Observer, they say a high-ranking public servant instructed them, at least one month before the pipeline was approved, “to give cabinet a legally-sound basis to say ‘yes’” to Trans Mountain. These instructions came at a time when the government claimed it was still consulting in good faith with First Nations and had not yet come to a final decision on the pipeline.
Legal experts interviewed by National Observer say these instructions could be a significant matter reviewed by the courts to determine if the government’s approval of Trans Mountain was valid.
The government would neither confirm, nor deny that public servants were given these instructions to find a way to approve the project. But it described the allegation as “unsubstantiated” information.
It ultimately rejected all four of the reports submitted by Thomas — more than 150 pages in total — in less than a day, and approved the Trans Mountain project a few hours later.
Natural Resources Minister Jim Carr assured National Observer in an April 19 interview that the government had fulfilled its duty to First Nations through a “considerably broadened and deepened consultation” designed to address mistakes made by the previous Harper government in its reviews and oversight of major energy projects.
Sources from within different federal departments, however, provide a different perspective about how the Trans Mountain review happened.
Their allegation is serious: that the process was rigged following lobbying by Kinder Morgan.
According to the federal lobbying registry, the Texas company’s Canadian affiliate, Kinder Morgan Canada, reported lobbying federal officials in the government more than three dozen times in 2016 before Prime Minister Justin Trudeau announced that he was approving the Trans Mountain expansion project.
In January that year, the company lobbied the top public servant in Carr’s department, then-deputy minister Bob Hamilton, twice. An internal memo from January 14, 2016 revealed that its Canadian president, Ian Anderson, had requested a phone call to discuss the project, National Observer reported.
A subsequent email circulated within the department that suggested the company wanted to avoid delays in the federal review process. This in turn triggered concerns at the highest levels of the Trudeau government that the Texas energy giant might withdraw its multibillion-dollar project.
Following these industry discussions, the government decided to shorten the timeline on an expanded review of the pipeline, promised by Trudeau’s Liberals during the 2015 election campaign.
Government insiders say the instructions given a few months later — to find a way to approve the expansion — were explicit. Public servants were never asked to prepare for the possibility that the government might reject the pipeline, they explain, or restart the federal review using a new and improved process that Trudeau himself had promised.
Kinder Morgan has since renewed its pressure on government and regulatory officials. The company warned in October 2017 that it was losing millions of dollars every month because it’s taking too long for it to get permits, putting the entire Trans Mountain project in jeopardy.
This warning came after the company was ordered by federal officials to stop unauthorized construction activity that was disrupting salmon streams.
Opposition to the project has also intensified. Although lawyers for Kinder Morgan have sought and obtained an injunction from the B.C. Supreme Court to stop opponents from disrupting construction activity in Burnaby, B.C. nearly 200 people have defied that court order and been arrested.
National Observer has reviewed internal correspondence involving at least two federal government departments that confirm public servants were directed to find a way to approve Kinder Morgan’s pipeline.
Other internal documents, released through access to information legislation, show that some public servants pushed back and warned the government that the process was “moving fast,” comparing it to the mistakes that led to the failure of another west coast pipeline, Enbridge’s Northern Gateway project, National Observer reported on April 13.
Three legal experts on Indigenous law contacted by National Observer said the instructions given to public servants about approving the pipeline project are troubling.
The lawyers all warned that these internal orders cast doubt on whether the government was sincere in its efforts to consult and accommodate First Nations on Kinder Morgan’s project — a matter now being reviewed by the Federal Court of Appeal.
The government has a legal duty to consult First Nations on any decision that could impact their land, water or rights under Section 35 of the Canadian Constitution.
Based on this requirement, the courts have the power to reverse the government’s approval of Trans Mountain and force it to restart its efforts to consult affected First Nations. It’s a process that could drag on for months or years, leading Kinder Morgan to cancel its project. The company has already threatened to abandon the pipeline after May 31 due to ongoing uncertainty about opposition it faces from the B.C. government.
But it’s not known whether the courts would consider any new evidence on appeal.
By late October 2016 — one month before the project’s approval — a high-ranking public servant, then-associate deputy minister Erin O’Gorman of the Major Projects Management Office (MPMO), convened more than a dozen public servants from multiple departments to a special meeting to discuss the last steps in the project review. The MPMO is an interdepartmental office set up by the former Harper government in 2007 to speed up the federal review of major projects and make them more efficient.
The meeting took place on Oct. 27, 2016 in the boardroom of the Vancouver Fraser Port Authority. Officials from the port authority were invited, as were public servants from Environment and Climate Change Canada, Fisheries and Oceans, Health Canada, Indigenous and Northern Affairs Canada and Natural Resources Canada, and Transport Canada according to emails released through access to information legislation.
“I also think she just wants to rally the interdepartmental team a bit as we draw down the clock on the existing timeline for decisions,” wrote a Crown consultations lead in an Oct. 26, 2016 email to colleagues regarding O’Gorman’s invitation.
Right before their internal meeting, federal officials met with Tsleil-Waututh representatives and told them that the government still hadn’t made a final decision on the project. But in the second meeting for government staffers only, public servants who were in the room said O’Gorman’s instructions were explicit.
“We have to give cabinet a legally-sound basis for saying yes,” O’Gorman said, according to people at the meeting.
Personal notes taken by one meeting participant, released through access to information legislation, indicate that the public servants discussed the issue of accommodating First Nations at the meeting, but also that the government was not going to change its ongoing process for consultations.
National Observer identified and contacted public servants at each federal organization represented at the meeting based on copies of an email invitation released through access to information legislation.
Apart from the ones who confirmed O’Gorman’s instructions, some said they didn’t attend the whole meeting and weren’t able to confirm what O’Gorman said, while others referred questions to the media relations offices at their departments.
None of the six federal organizations contacted by National Observer denied that O’Gorman had instructed the public servants to find a way to approve the project. The public servants who confirmed O’Gorman’s comments also noted that they were never asked to provide advice to support a possible rejection of the pipeline. They said they were only asked to work toward getting the project approved.
O’Gorman is a veteran public servant who notably worked as a national security adviser to the prime minister at the Privy Council Office when the Harper government was in power. She also previously worked as a director of aviation security at Transport Canada.
Kinder Morgan reported lobbying her four times in 2016 prior to the Oct. 27 internal government meeting — on Feb. 3, May 3, Aug. 24 and Oct. 13, 2016.
O'Gorman moved over to a senior position at the Treasury Board Secretariat after the Trans Mountain project was approved. She didn’t respond to a request for comment and the Treasury Board Secretariat referred questions about the Oct. 27 meeting to Natural Resources Canada.
Gordon Christie, a law professor from the University of British Columbia who specializes in Indigenous legal cases, said revelations about the Trans Mountain approval instructions raise questions about whether the consultations with First Nations were meaningful.
“It’s certainly troubling because it goes right to the heart of what you call meaningful consultation,” he said in an interview. “It’s hard to call that consultation when you are supposedly listening to the other party talk about their concerns, but you’ve always had your course of action set.”
But he added that other factors could be considered by judges reviewing the case.
"So I can't say that by itself, whether it's fatal (to the Crown's case)," he said.
Jack Woodward is a B.C.-based lawyer who is known for drafting Section 35 of the Constitution. More recently, he was on the winning side of a landmark June 2014 Supreme Court decision that ruled the Tsilhqot’in Nation held title to about 1,900 square kilometres of their unceded traditional territory in B.C., following a 25-year battle.
Woodward said any evidence that the government had made up its mind and ruled out the possibility of saying ‘no’ to a project like Kinder Morgan’s pipeline could wind up causing problems for the Crown in court.
“The courts have held on several occasions that if you hold consultations but you have a secret agenda or all options are not on the table, then they’re not legitimate consultations,” said Woodward, who literally wrote the book on Indigenous law in Canada — Native Law. “You cannot go into them (consultations) with one of the options foreclosed.”
In Ottawa, Alex Keenan, the third lawyer interviewed by National Observer for this report, described O’Gorman’s instructions as a “red flag” that could be reviewed by the courts, particularly if public servants were not asked to consider preparing to reject the pipeline.
“I think that kind of comment would definitely give a court pause,” she said. “I don’t really want to speculate on exactly what it meant. I think the court would want to know what the context was, what else was said, along with that and how it was interpreted by public servants, but it would definitely be something that they would take notice of.”
'Judge us by what we did,' says Jim Carr
When asked if he was aware of O’Gorman’s instructions, Carr declined to say. But he reiterated that the government wanted to make sure it had “meaningfully consulted and properly accommodated Indigenous peoples” affected by the project.
“Well I’m telling you what motivated the Government of Canada to appoint the expert panel,” Carr said in his interview with National Observer last week.
All of this was particularly important for the Trudeau government, Carr said, after a series of relevant court cases. Notable among them was a June 2016 Federal Court of Appeal decision that quashed the former Harper government’s approval of Enbridge’s Northern Gateway pipeline project because federal officials had not adequately consulted First Nations.
Carr said this was why the Trudeau government wanted to have “broadened and deepened” consultations with Indigenous peoples.
He also said in the same interview that he believed that the government would be able to approve the Kinder Morgan expansion project, while approving new federal investments that ensure the Burrard Inlet will be in better shape in the future.
“I’m telling you what we had learned from court cases — Tsilhqot’in from the Supreme Court of Canada, and the Federal Court of Appeal in the Northern Gateway case — and that we wanted to discharge our obligations that we take very seriously and did then. So judge us by what we did and the extent of the consultation that was underway and completed.”
Carr also said the government “had an open mind” during the review process. But his department declined to comment on the new revelations made by sources, stating that the federal government, “will not comment on unsubstantiated documents or information, and will continue to monitor this situation closely.”
If built, the Trans Mountain expansion would triple the company’s shipping capacity, allowing it to transport up to 890,000 barrels of bitumen — the tar-like heavy oil produced in Alberta’s oilsands — per day to a terminal in Burnaby, a city in Metro Vancouver.
Supporters of the project, including some Canadian bankers, oil executives and the federal and Alberta governments, believe the project would create jobs and promote growth in the oilsands by granting shippers access to new markets in Asia. Detractors, including the B.C. government and dozens of First Nations say the project is too risky since it could lead to oil spills and push Canada’s climate change goals out of reach.
Trudeau said in an interview with National Observer last February that the project was part of a “trade-off” to gain Alberta’s support for a national climate change plan to meet Canada’s international commitments and cap pollution from the oilsands — the country’s fastest growing source of greenhouse gas emissions.
The Trans Mountain expansion would also lead to a seven-fold increase in oil tanker traffic in the Burrard Inlet, the traditional territory of the Tsleil-Waututh.
“That area is very important to me and it has been since my childhood,” said Will George, a member of the Tsleil-Waututh Nation, in a Feb. 7, 2018 interview with National Observer. “We go to those waters and we pray really hard there. That’s where we get a lot of our answers. We bathe in there in the winter, it can be -5 C, -10 C, and we’ll still go into the water, early in the morning.”
The Tsleil-Waututh are also the “people of the Inlet.” That’s what their name means in their traditional Halkomelem language, the federal government noted in an appendix to its final report on its efforts to consult and accommodate First Nations about Trans Mountain, prior to its November 2016 announcement.
“Creation stories and stewardship of lands and resources are central to Tsleil-Waututh’s expression of its culture, spirituality and goals for the future, including economic independence,” the report said.
“Members hunt, gather, fish and engage in cultural activities such as traditional teaching and Potlaches. Tsleil-Waututh’s community vision is to be able to eat marine food from their territory and practice ceremonies in clear water. Long term stewardship goals include restoration of Burrard Inlet in an effort to achieve this community vision.”
Before recommending that the pipeline be approved in spring of 2016, the NEB heard from 400 intervenors, 1,250 commenters and dozens of Indigenous groups. The NEB’s recommendation also was subject to 157 financial, technical and environmental conditions.
But the government also recognized that there was significant public criticism levelled against the NEB, Carr explained in his recent interview with National Observer. As a result, he said that the government decided to appoint a new independent panel to review the evidence collected and further engage the public. This new panel heard more than 650 presentations at 44 public meetings attended by more than 2,400 Canadians, and received over 50,000 comments online.
Ultimately, the Trudeau-appointed panel declined to say in its final report, released on Nov. 3, 2016, whether it had concluded the project was in the public interest and could deliver the national economic benefits touted by the federal government and industry. But the panel noted that economic and political conditions had “changed dramatically” since Kinder Morgan had first applied to build its project in 2013.
The panel also highlighted concerns raised by Indigenous leaders who felt the federal government had failed to adequately consult First Nations about the project, as well as concerns raised by critics of the initial review by the NEB.
"Specific as this seems, the NEB offered no evidence in its report on the Trans Mountain proposal as to what specific elements of the Trans Mountain proposal fulfilled the public interest,” the panel said.
Carr received similar warnings in an internal government memo dated Nov. 10 that told him Indigenous leaders found the consultations to be “paternalistic,” “inadequate” and “unrealistic.” Carr was also warned that some First Nations would likely protest the government’s decision to give them only two weeks to review and respond to more than a thousand pages of findings from a Crown report on consultations and accommodations for 114 Indigenous groups affected by the project.
Keenan, who spent five years representing First Nations on a range of issues, told National Observer that a short deadline like this would make it difficult for an Indigenous community to respond.
“I think two weeks is a very, very short time,” said Keenan, who has also represented residential school survivors in legal cases.
“Usually they (First Nations) are pressed for human resources and financial resources, and so it can be really hard to pull something together, especially if they’re working with the council but they can’t necessarily devote 100 per cent of its time to going through these documents. So two weeks sounds very short to me.”
Trans Mountain said on Dec. 15, 2016 that it was paying out $400 million to 51 different Indigenous groups that signed mutual benefit agreements (MBAs) in support of the project. But now, it says those numbers have been reduced to 43 MBAs.
Through 6 years of broad and inclusive engagement we've reached agreements with all #FirstNations communities whose Reserve lands we intend to cross with the Project. https://t.co/SvnEuOYrvh #TransMountain #KinderMorgan #cdnpoli #bcpoli #abpoli #BuildKM pic.twitter.com/lB98gUVKpg— Trans Mountain (@TransMtn) April 19, 2018
In one case, the company was even forced to apologize in an Oct. 21, 2016 letter sent to the B.C. government’s environmental assessment office for claiming that the Skeetchestn Indian Band had filed a letter of support for the project and signed an MBA. In fact, there was no such agreement or support in place.
Trans Mountain didn’t respond to multiple requests for comment from National Observer for this article and didn’t offer any explanation for the discrepancy between its numbers from 2016 and its numbers today.
The four reports that Chief Thomas gave Carr on Nov. 28 consisted of 164 pages raising numerous concerns about the project’s economic and environmental impacts.
Public servants took less than a day to review the submission before rejecting them all.
“While the specific studies were not filed with the NEB, many of the topics were examined during the review, for example: economic need for the project, assessment of oil spill risks, cumulative effects, oil spill planning and response and the fate and behaviour of diluted bitumen,” wrote a policy advisor from Natural Resources Canada to high-ranking public servants, including ADM O’Gorman and a director, Timothy Gardiner, on Nov. 29, 2016.
Officials from the department had similarly rejected new research assessment compiled by scientists and sent directly to Trudeau in November 2016, warning about gaps in research about how to clean up bitumen spills — an issue raised by Environment and Climate Change Canada a few months earlier in its last submission to the NEB review from January 2016, prior to the NEB’s recommendations.
The high-ranking officials were told by the policy advisor (who was also lobbied by Kinder Morgan in February and March 2016) that the government could address these concerns through new investments promised in a federal plan to protect Canada’s oceans.
“Based on our review, we don’t see anything new in these reports that is significantly outside the scope of the information that has already been provided to ministers,” continued the policy advisor in the email, sent at 12:03 p.m. on Nov. 29. “Please advise if you would like this information distributed further.”
Less than five hours later, Trudeau, Carr and other federal cabinet ministers announced their approval of the Trans Mountain expansion.