On August 30, shareholders of Kinder Morgan will vote to approve the government of Canada’s decision in late May to purchase the Trans Mountain Pipeline System and Expansion Project. The pipeline continues to be the subject of great dissent across the country. Especially since cabinet approved the pipeline expansion in 2016, litigation has been ongoing between the federal government, First Nations, British Columbia, municipalities and NGOs. In addition, civil protests against the pipeline continue to make headlines. The decision to purchase the pipeline and its expansion came before these challenges were resolved, deepening tensions underlying the country’s system of governance and our reliance on extractive industries.

An open letter sent on August 28 to the Prime Minister and all members of Parliament, signed by 189 academic experts in environmental, legal, Indigenous and policy issues, outlines grave concerns relating to the pipeline approval that are exacerbated by the purchase. These concerns include the nationalization of risk associated with the costs of the pipeline; harmful effects on marine and other environments resulting from increased tanker traffic and the likelihood of a major bitumen spill; and Canada‚Äôs continuing contributions to the global fossil fuel economy, which frustrate our ability to meet our responsibilities to address global climate change. The letter presents a clear case for not purchasing the pipeline and its expansion based on such concerns. Moreover, it emphasizes the potential of the purchase to seriously undermine the government‚Äôs stated commitments to promote cooperative federalism, ‚Äúnation-to-nation‚ÄĚ relationships with Indigenous peoples and public participation in environmental decision-making.

Now would seem the time for robust democratic debate about Trans Mountain, especially given that estimated costs of the project have risen to as high as $9.3 billion. The fact that the expansion faces several legal challenges, as well as continued opposition from the British Columbia government, also points to the need for renewed collaboration and deliberative exchange. However, the government of Canada‚Äôs decision-making process remains shrouded in secrecy. Rather than disclose the full repercussions of the purchase in an open and transparent manner, the federal government has left the public to learn the details of the pipeline and its purchase ‚ÄĒ including the current process of purchase approval ‚ÄĒ through news outlets, shareholder disclosures, court documents and other indirect means. Indeed, a lack of transparency and resistance to debate have been hallmarks of the whole approval and purchase process.

The United Nations Declaration on the Rights of Indigenous Peoples does not support a piecemeal approach; it requires the free, prior and informed consent of all Indigenous peoples, which in this case has not been obtained.

Of the more than 100 First Nations affected by the 1,147-kilometre-long pipeline, only about half have signed mutual benefit agreements with Kinder Morgan. The Squamish and Tsleil-Waututh Nations are actively leading campaigns against the project, and the Secwepemcul’ecw Assembly asserts that its jurisdiction must not be violated, in opposition to some individual bands operating within the same territory who have consented to the pipeline expansion. These examples illustrate the highly sensitive relationships at stake. The United Nations Declaration on the Rights of Indigenous Peoples does not support a piecemeal approach; it requires the free, prior and informed consent of all Indigenous peoples, which in this case has not been obtained. In addition, several First Nations, NGOs and cities have brought court cases challenging the approval of the project, including on the ground that Canada violated its duty to consult, a duty triggered when government action poses a risk to Aboriginal rights affirmed and protected under the Constitution Act, 1982.

British Columbia‚Äôs jurisdiction to regulate the pipeline is likewise being determined through the courts. The province has filed a reference with its Court of Appeal to determine whether it could adopt stricter rules for companies looking to ferry more heavy oil, such as diluted bitumen, through the province. The government of Canada has stated that introducing federal legislation will ‚Äúreassert and reinforce‚ÄĚ its jurisdiction to approve the project and ensure it goes ahead.

In addition, demonstrations against the pipeline in Burnaby, BC, have resulted in over 200 protesters being arrested and charged with criminal contempt of Kinder Morgan’s injunction against protests that could delay pipeline construction. Only days after the federal government’s announcement of the purchase, Kinder Morgan was granted an enlargement of its site-specific, five-metre exclusion zone to include many more sites and facilities along the Trans Mountain route. This enlargement signals the escalating use of private injunctions to empower police intervention in peaceful civil advocacy, which may disproportionately affect First Nations that are refusing access to their lands. Another injunction resulted in the dismantling of a peaceful protest camp on Burnaby Mountain. In the coming weeks, as construction of the pipeline ramps up, increased civil protests and more arrests are expected.

Taken together, the civil protests, litigation and other demonstrations highlight unpredictability and inconsistencies in our system of governance with which persons across Canada should be concerned. During the 2015 election, the current federal government promised to strengthen impact assessments and pipeline approval processes, including expanding Indigenous decision-making and public participation. While reforms addressing environmental legislation are still ongoing, the Trans Mountain project is being governed behind closed doors without information sharing or venues for public debate. Moreover, opposition to the project has financial and human costs. These concerns are not only about Trans Mountain; they are about the ability of the residents of this place to have a say in the governance of our shared territory.

This comment draws on and supplements the open letter from scholars to the Prime Minister and all members of Parliament.

Photo: An aerial view of Kinder Morgan’s Trans Mountain marine terminal, in Burnaby, BC, is shown on May 29, 2018. THE CANADIAN PRESS Jonathan Hayward

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Sarah Mason-Case
Sarah Mason-Case teaches climate change law and environmental law at Osgoode Hall Law School. She previously worked in law reform, domestically at the Law Commission of Ontario and internationally at the International Development Law Organization.
Catherine Potvin
Catherine Potvin is the coordinating lead author of Re-energizing Canada, the Sustainable Canada Dialogues report. A professor and Canada Research Chair at McGill University, she coordinates the Sustainable Canada Dialogues network of scholars.  
Catriona Sandilands
Catriona Sandilands is a professor in the Faculty of Environmental Studies at York University and a former Canada Research Chair in sustainability and culture. Her research focuses on the social, historical, and cultural dimensions of environmental issues.

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