Kinder Morgan and the ‘Rule of Law’

Will Horter

Are arguments for the pipeline expansion based on actual respect for legal procedure?

I can’t believe I’m writing this, but it appears that our New Age prime minister has embraced the post-truth era quicker than anyone could have imagined. Quite simply, he is imitating U.S. President Donald Trump in his handling of Kinder Morgan: tell a big lie and repeat it frequently. Attack any opponents as anti-prosperity, and their words as “fake news.” Unfortunately for Canadian democracy, the cynical “big lie” propaganda technique is now becoming the go-to-procedure in Ottawa for all things Kinder Morgan.

Building on a few other whoppers — Kinder Morgan will lower gas prices, Canada needs new tar sands pipelines in order to address global warming, Justin Trudeau’s promise to ensure a renewed, nation-to-nation relationship with First Nations — we now discover the biggest lie of all: Trudeau cites the “rule of law” in support of his claim that his government’s Kinder Morgan approval was a science-based decision made after carefully weighing all the evidence. Credible reports based on newly available documents and government staff whistle-blower accounts indicate that Trudeau’s approval of Kinder Morgan was purely political, and worse, “rigged.”

Not surprisingly, the pro–Kinder Morgan crowd that has been attacking the B.C. government and other opponents with “rule of law” arguments has been silent in response to these rigging allegations. If they really cared about the procedural fairness that Canadian laws are founded on, they should be the ones calling most loudly for a thorough investigation of the federal approval process (more on the new evidence of improper process later).

Instead, Trudeau’s Finance Minister Bill Morneau once again trotted out the “rule of law” argument to justify his scheme to indemnify Kinder Morgan from all risk using taxpayer money. Morneau said, “As a government we need to ensure that the rule of law is respected and that investors have the certainty needed to complete the Trans Mountain expansion project because it’s in the national interest to do so.”

Alberta’s Premier Rachel Notley, who in what might go down as the biggest political blunder in decades by allowing Kinder Morgan to become the litmus test for the success of her government, has spewed the biggest “rule of law” blarney, doubling down almost daily with misguided references to support her threats to ban wine sales and cut off B.C.’s oil supply. This week she referenced it once again to justify her decision to skip the recent first ministers meeting in Yellowknife.

The hypocrisy of the “rule of law” crowd has a long history in British Columbia’s oil tanker and pipeline struggles. Not so many years ago when Stephen Harper was ruling the roost in Ottawa, we began to the hear the “rule of law” touted in support of Enbridge’s proposal to bisect British Columbia with a pipeline to Kitimat, where bitumen would be pumped into oil tankers for export to China. Pro-Enbridge cheerleaders touted the National Energy Board’s recommendation and the Harper cabinet’s approval. “The issue is already decided, they said, “opponents are ‘radicals’ threatening the economy and Canadian democracy.”

As then, so today. Until the new allegations of NEB rigging surfaced, Kinder Morgan’s promoters often referred to the “rule of law” as their rationale for moving ahead quickly with the Texas company’s controversial oil tanker-pipeline proposal.

But what exactly do they mean?

The dictionary defines the rule of law as: “the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.”

Canada is not a dictatorship. Just because some handpicked board rubber-stamps something, or princely Trudeau (or the bully Harper before him) wants something, it doesn’t mean we all have to march in step to make it so.

What Harper, Trudeau and the pro-oil sycophants ignore is the fact that the Canadian system of law depends on the complex interplay of a wide range of institutions: police; courts; political parties; non-partisan civil servants; independent regulators; and legislatures. Each of these institutions must be perceived as genuinely independent and not beholden to private interests. They each must be impartial, loyal to the broader public interest and obedient to the rule of law.

The NEB recommendation and cabinet approval are just two steps in a process to ensure the rule of law is upheld. Enbridge’s now-defunct west coast oil-port proposal provides a cautionary tale of thinking otherwise. Like Kinder Morgan’s controversial proposed oil port expansion in Burnaby, Enbridge garnered a positive NEB recommendation (with conditions); it received both federal and provincial environmental assessment certificates, and then it got the thumbs up from cabinet in Ottawa. On the surface, it all seemed proper. Yet two separate courts ultimately struck down these recommendations and approvals. The courts determined the processes were fundamentally unfair because they failed to uphold government’s constitutional obligations to First Nations. The true rule of law — not the conveniently fictional one that Harper and the oil industry cited — eventually prevailed in the courts, thereby killing Enbridge’s proposal.

Kinder Morgan the latest “rule of law” sham

A similar scenario is smoldering with Kinder Morgan. Once again, promoters — citing the rule of law — are predicting the sky is falling and the economy will collapse if Kinder Morgan doesn’t go through. They claim the proposal has been over-scrutinized. Their refrain can be summarized as: “Enough already!” Their references to the rule of law should be translated to what they truly mean: “Shut up, get out of the way, and let us get on with what is really important: making lots of money.”

Trudeau and his cabinet claim, as Harperites did with Enbridge, that the “federal review of the Trans Mountain expansion was the most exhaustive in the history of pipelines in Canada.” But in determining whether the rule of law is being upheld, our legal system looks at the quality of the process, not just the quantity. Upon closer legal examination Enbridge failed this test, and, given the similarities, there are strong reasons to believe Kinder Morgan will fail as well.

The shortcuts and flaws in the NEB review of Kinder Morgan are well known. The Trans Mountain NEB review is haunted by the exclusion of many affected people and groups, the limited terms of reference, the lack of cross-examination to test the evidence Kinder Morgan submitted, the exclusion of relevant evidence (such as scientific studies concluding bitumen sinks if spilled), the expedited hearing schedule and conflicts of interest.

Even Trudeau and the Liberal Party of Canada (before they came to power) admitted the NEB’s review of Kinder Morgan was fundamentally flawed. Much has been made about then-candidate Trudeau’s statements that Kinder Morgan would not be approved, and the review would be redone if he became prime minister. However, a more damaging statement has been overlooked: the follow-up letter by Anne Gainey, then president of the Liberal Party of Canada, wrote just before the election responding to questions put to Trudeau about his statements. Gainey wrote: “regarding the Liberal Party of Canada’s position on the Kinder Morgan Pipeline. As you are aware, Justin Trudeau and the Liberal Party of Canada have serious concerns with the process surrounding the approval of this pipeline. We cannot support the pipeline in its current form because the Conservatives have not ensured environmental, community or stakeholder consent. We agree with what you, and Canadians across the country, have been saying for a long time: Canada’s environmental assessment process is broken.”

Trudeau and the Liberal Party’s pre-election criticisms of the NEB review process was not unique; they were shared by virtually everyone — First Nations, municipalities, scientists, and property owners — who voiced concerns about the proposal. Concerns about the NEB’s Kinder Morgan review being rigged surfaced even then.

It is also worth noting that the NEB’s review of Enbridge — although ultimately determined to be fundamentally flawed by the courts — was much more thorough than their review of Kinder Morgan. Affected people, organizations, witnesses and evidence, excluded in the NEB review in Kinder Morgan, were permitted in Enbridge’s review, and the Enbridge process was not artificially truncated by Harper’s later gutting of environmental laws in 2012. That gutting occurred before the Kinder Morgan review.

Natural Resources Minister Jim Carr appointed an ad-hoc ministerial panel to make it appear Trudeau’s government was fulfilling its election promise to “redo the review.” The panel’s controversial make-it-up-as-you-go-along meetings were haunted by serious conflict of interest issues. Yet despite all its problems the ministerial panel surprised everyone and recommended that the Trans Mountain pipeline proposal not proceed without a serious reassessment of its impacts on climate change commitments, Indigenous rights and marine mammal safety. Trudeau and his cabinet gave the project the thumbs up just over three weeks later without addressing any of their own panel’s recommendations.)

New evidence of “rigged” process

If Trudeau’s false promises weren’t enough to threaten the legitimacy of the federal Trans Mountain approval process, we are now hearing credible reports — with documents and several government staff whistle-blowers — describing how Trudeau’s government instructed staff to put their thumb on the scale of justice. Reportedly, Erin O’Gorman — the then-associate deputy minister of the major projects management office — was instructed to “find a way to approve Kinder Morgan.” O’Gorman then reportedly told various departments to do just that. In other words, it appears Trudeau betrayed not only his “Sunny Ways” promises, but violated a host of laws by predetermining the Kinder Morgan approval before all the evidence was in, or consultations with affected First Nations were completed.

As biased as the federal process was, the provincial approval process was arguably worse. Back in 2010 while Gordon Campbell was B.C.’s premier, his government signed an equivalency agreement with Ottawa that allowed an NEB review of major proposals like Kinder Morgan to substitute for the provincial assessment. In 2016 the B.C. Supreme Court accepted the Gitga’at/Coastal First Nations argument that the B.C. government acted improperly when it abdicated to Ottawa its responsibility for assessing the environmental impact of the proposed Northern Gateway pipeline. The court declared the environmental assessment certificate invalid.

This created serious problems for Kinder Morgan, which was also covered by the equivalency agreement. Then-Premier Christy Clark’s lawyers condemned the truncated NEB review of Kinder Morgan. Ultimately, her government officially opposed Trans Mountain, citing concerns about oil spills. Although no new evidence was introduced, the Clark government later flip-flopped and endorsed Trans Mountain after secret negotiations with Ottawa. Rumours abound that Clark’s flip-flop was payback for securing Trudeau’s approval of both Site C and Petronas’s now-defunct Pacific Northwest LNG export proposal near Prince Rupert.

But Clark’s flip-flop opened the door to another challenge by First Nations of British Columbia’s abdication of provincial review due to the equivalency agreement. As with the recent allegations of rigging of federal approval, some B.C. government employees allege that Clark’s government instructed staff to expedite a “Gitga’at–proof” provincial review of Kinder Morgan. Instead of initiating a rigorous process, as a shortcut, the B.C. reviewers accepted all the evidence Kinder Morgan had submitted to the NEB — evidence the province’s own lawyers had previously criticized as inadequate during the NEB review — and deemed that evidence as satisfying their obligation to conduct an independent provincial review. Some public servants objected and reportedly were taken off the file. After a few cursory meetings with affected First Nations, Clark’s government granted the provincial environmental assessment certificate.

Talk about an epic rubberstamp.

Who’s really afraid of the rule of law?

Ironically, when all the evidence is in, it is Kinder Morgan’s cheerleaders, not opponents, that actually are undermining the rule of law. Their get-an-approval-by-any-means-necessary approach — by rigging review processes, ignoring conflicts of interest, trying to pre-empt review by courts, generally putting their thumb on the scales of justice, and using “big lie” propaganda techniques — is the real threat to the rule of law.

But luckily the rule of law doesn’t just include politicians, legislatures, ministers and the courts. Citizens have a critical role to play as well. More on that in part two coming up Friday.

[Part Two below]

Kinder Morgan and the Power of Civil Resistance

Citizens can shine a spotlight on bad laws or draconian consequences.

Canadians are a law-abiding people. Unlike our southern neighbours, our mythology isn’t filled with scandalous rogues who operate at the edges, or outside, the law. Who are the Canadian equivalents to Jesse James, Al Capone or Bonnie and Clyde? Frankly, I can’t think of a single one.

The same is true with modern Canadian politicians. Is there a Canadian equivalent to Richard Nixon, Spiro Agnew, or Huey Long? No one jumps out. With the exception of the Ford brothers, Canadian history isn’t filled with rogue politicians who flout the law. That is, until Kinder Morgan came along.

Canada has become a petro state. It is time we come to grips with this as a nation. We have a litany of examples of both provincial and federal politicians playing fast and loose with the rules to force an unwilling oil tanker pipeline project on an unwilling province.

How far will they go? Pretty far!

Harper gutted environmental laws, illegally spied on groups opposing oil and gas projects, and tried to demonize opponents by calling them foreign radicals.

A succession of Alberta premiers have huffed and puffed until Rachel Notley crossed the line by proposing to impose illegal trade restrictions on exported oil and imported B.C. wine. Justin Trudeau lied about Kinder Morgan to win votes in B.C., only to betray his commitments once in power as prime minister. Now we learn of evidence that Trudeau’s government threw the rule of law out the window and rigged the process to fast track and guarantee Kinder Morgan’s approval. What’s clear is this: politicians have cynically pontificated about the “rule of law” while bending the rules to force Kinder Morgan through.

Many Canadians have bought the propaganda — but in British Columbia? Not so much.

Why is the rule of law so important? Because it’s the fundamental building block of democracy. But democracy is fragile, and its long-term health depends on the complex interplay and integrity of a wide range of institutions: police; courts; political parties; non-partisan civil servants; independent regulators; and legislatures — all who seek justice and pursue truth wherever the evidence may lead. Each of these institutions must be perceived as genuinely independent and not beholden to private interests. They each must be impartial, loyal to the public interest, and obedient to the rule of law. They not only enforce rules; they must follow those rules themselves.

That clearly hasn’t been the case with Kinder Morgan. Luckily the rule of law does not just belong to the realm of politicians, legislatures, ministers and the courts; citizens have a role to play as well.

In Canada’s western-most province, the aggressive language and underhanded tactics from the eastern side of the Rockies are inspiring an unprecedented number of British Columbians to step out of their comfort zone and stand together against an unjust process.

While politicians and pundits pontificate, people are organizing. Whether they are concerned about runaway global warming, Indigenous rights, oil spills, or the inherent right of people to decide their own future, British Columbians are coming together to ensure Trans Mountain never gets built.

What the people of British Columbia know is that, if all else fails, as law-abiding citizens they can resort to civil disobedience — or, as I prefer, “civil resistance.” Anyone with a marginal understanding of history knows civil resistance is a critical political tool.

The power of civil resistance lies in the debate it generates about the law and the moral justification of violating it. By defying a societal norm, and being willing to suffer the consequences, citizens shine a spotlight on bad laws or draconian consequences and seek to bring them into disrepute while catalyzing others to stand against them.

Civil resistance, when properly employed, is not a publicity stunt; it is a solemn act of citizenship. It has a distinguished history. That history tells us that engaging in civil resistance is in fact a celebration of the “rule of law.”

To be effective, civil resistance cannot be engaged in lightly. It has to be widely perceived as a “reasonable” response, undertaken only after exhausting all other options.

Ironically, the patently unfair federal and provincial processes behind the Kinder Morgan rubber-stamp, combined with the recent bully tactics from Alberta and Ottawa, are convincing tens of thousands of concerned British Columbians (as well as climate and Indigenous activists from around the world) that civil resistance is the only reasonable response to an ongoing injustice. People outraged by these injustices are worried that their provincial government may not have strong enough tools to defend British Columbia’s interests from out-of-province bullies, but despite this, they are willing to risk arrest to stand up for their province, Indigenous rights, and the climate.

Canadians generally don’t like conflict. But when they see a wrong that goes to the core of their values, they will stand up for what they see as right. If we have learned anything from the No Tankers struggle over the last decade, it’s that the more British Columbians learn about any particular oil export proposal, the more likely they are to oppose it. The same seems to be happening with the Kinder Morgan pipeline: the people who are standing against the pipeline do not see themselves as law-breakers; they see themselves as defenders of their most cherished values, including the rule of law. They are holding government to account.

The Grand Canyon–sized gap between the aggressive pro-pipeline rhetoric and the reality is fuelling increased outrage from concerned citizens opposed to Kinder Morgan. It is pushing increasing numbers of people to the blockade. As of now, around 200 protesters have been arrested and reportedly more than 20,000 people have pledged to join them.

From the outraged hyperbole frothing from Alberta and Ottawa, you would think these Coast Protectors were black-masked anarchists wielding Molotov cocktails, not the clergy, scientists, grandparents, and elders singing and praying for reconciliation while being arrested. These protectors are not going away. They will not be deterred by threats. The massive exercise of state power that will be required to remove them from the gates could change the political landscape for a generation.

Elections are also included in the Canadian democratic system of accountability and laws. History shows that being a pro-pipeline candidate in tidewater ridings in British Columbia is a liability. Stephen Harper’s Conservatives learned this first-hand when they not only ignored — but actively provoked — the groundswell of opposition to the oil tanker-pipeline proposals. The Harperites thought they could bully their way to another majority government in 2015. However, anti-tanker, pro-democracy organizations had something to say about that, actively organizing in tidewater ridings to dramatic effect: Harper’s team lost almost as many votes (82,257) on the west coast as it lost in the rest of Canada combined (85,669).

Trudeau and his Liberal MPs face a similar electoral tsunami. Liberal MPs such as Joyce Murray, Jonathan Wilkinson, Terry Beech, and Jody Wilson-Raybould are particularly vulnerable. To date, they seem more interested in playing follow-their-telegenic-leader than in representing the interests of their constituents. They would be well advised to remember that civil society groups have been organizing in their ridings for years, and have battle-tested their Get Out The Vote machines. Those groups are now working to stop Kinder Morgan, on the ground and at the ballot box.

So, although the mainstream media has largely not connected the dots, to anyone looking closely it should come as no surprise that British Columbians consider Prime Minister Trudeau’s about-face on his pre-election commitments a betrayal of epic proportions. In what appears to be a repetition of Trudeau-the-dad’s maligned National Energy Plan in the 1980s, Trudeau-the-son is going all-in to try and force the unwanted oil tanker pipeline proposal on an unwilling province. He is doing so with new proposed legislation to override provincial health and safety concerns, with billions of dollars in subsidies from taxpayers, and even with threats to call in the military. Nothing appears to be off-limits to Ottawa’s pipeline-evangelizing prince and his minions. I’m surprised Trudeau hasn’t challenged B.C. Premier John Horgan to a winner-take-all boxing match to decide the issue.

Ironically, it is not local protesters who are violating the rule of law. It is Kinder Morgan’s cheerleaders, those who hypocritically pontificate about the rule of law, who actually are undermining it. They do so by trying to pre-empt court challenges, invalidating provincial regulatory processes, and intimidating concerned citizens who are merely exercising their constitutionally protected rights to protest. Those are the actions that threaten the rule of law.

The turmoil will continue until Notley, the oil industry, and Trudeau recognize that there are no shortcuts. British Columbians, municipalities, First Nations, and concerned citizens simply will not accept any oil tanker-pipeline proposals imposed through an unfair process. If British Columbia’s history has taught us anything, all attempts to force Kinder Morgan will continue to be met with stiff and unending resistance.

I’m confident that when it’s all said and done the rule of law will prevail — and that it is unlikely that Kinder Morgan’s pipeline will ever get built.