Kinder Morgan: Beyond the Division of Powers Debate – Indigenous Rights at the Crux

Image by Mark Klotz via Flickr (CC BY 2.0)


The current debate over the Kinder Morgan pipeline expansion reads like a high stakes action movie. It is like a ticking time bomb ready to detonate on May 31st , the date Kinder Morgan has threatened to terminate the entire expansion project unless two conditions are met - protection of shareholders and successful construction through BC. On one side, there is Prime Minister Justin Trudeau, flexing the power of “federalism” and asserting determination that the pipeline will be built; on the other is the will of Premier John Horgan in protecting BC’s own provincial priorities. Then there is Alberta Premier Rachel Notley, whose province has a lot at stake in this division of powers debacle. Driving the plot is Texas-based Kinder Morgan, who has stopped all non-essential work on the pipeline until the government can resolve these jurisdictional disputes.


What is the Kinder Morgan Pipeline?


Kinder Morgan’s Trans Mountain Pipeline expansion project involves tripling the pipeline’s current oil capacity from 300,000 to 890,000 barrels per day, at a cost of approximately $7.4 billion. This new pipeline would run diluted bitumen from the Alberta tar sands to the BC coast, running parallel to the current pipeline. The upgrade will require construction of an additional 12 pumping stations, 19 new storage tanks and three new marine berths. Since 2013 the project has been plagued with multiple environmental and transparency criticisms. Even then-candidate Justin Trudeau was critical of the project during the 2015 federal election campaign. However, promises of overhauling both the National Energy Board and pipeline review process did not happen, and a mere panel to conduct public hearings was put in place. This very panel released a report advising against the project, citing a need to re-asses its impacts on the environment, Indigenous rights, and marine safety. Nonetheless, the federal government led by Prime Minister Justice Trudeau approved the project at the end of 2016.


Image © Kinder Morgan Canada


An Un-Achievable Deadline


Currently, Kinder Morgan has stopped all non-essential spending on the Trans Mountain Pipeline expansion and may entirely scrap the project unless the “uncertainty” regarding the opposition from BC is resolved. Even if these governments were to somehow come to a consensus on the division of powers and BC withdraws its constitutional reference question before May 31st, the deadline is still nearly impossible to meet because of one key factor: more than a dozen groups are challenging the entirety of the Kinder Morgan approval process — including several First Nations communities. Citing inadequate consultation and errors in the environmental assessment process, these Indigenous-led challenges could take years to be resolved — especially if new revelations that the pipeline was approved before consultations were even concluded are proven to be true.


Why are Indigenous concerns and challenges being treated as a sub-plot in this entire saga? When the Trudeau government asserts the pipeline must be built as it is in the “national interest” and that they have conducted “one of the largest Indigenous consultations in history,” it runs antithetical to the reality that many Indigenous communities claim was no consent and no or inadequate consultation.


The governments involved in the approval of the Kinder Morgan expansion have a constitutional duty to consult with First Nations who will lie along or near the pipeline route. In the post-Tsilqhot'in era, the content of this duty to consult is significant; the Supreme Court of Canada recently overturned a National Energy Board decision allowing a Norwegian group to conduct offshore seismic testing, as the local Inuit community was not properly consulted on the potential negative impacts of their fishing and hunting rights. Even for the bands in Alberta where treaties are in place, the Supreme Court in 2005 affirmed government plans can be overturned in the absence of consultation. These cases were anticipated to have a significant impact in asserting Indigenous rights and so far, it is doing just that.


It is therefore quite possible that the Indigenous court challenge to the Kinder Morgan approval process will be successful and could require the process to start entirely from scratch. If the Trudeau government’s commitment to reconciliation and a renewed nation-to-nation relationship with the Indigenous peoples of Canada is to mean something, then concerns about a lack of consultation need to be taken seriously by Ottawa.


Trans Mountain Expansion:  What We aren’t Hearing Enough About


It is true that it is difficult to find a consensus on the First Nations perspective on the Kinder Morgan pipeline. But that is due to the fact that there are over 100 Indigenous communities needing to be consulted. Only 42 of the initial 51 mutual benefit agreements between Kinder Morgan and various First Nations communities still stand, many of which are still conditional and could be abandoned based on further consultation. Yet many First Nations claim they were not properly consulted and have real risks to the quality of life posed by the pipeline. This includes the Coldwater Indian Band, where the proposed pipeline would run right through their only source of clean drinking water, and Cheam First Nation, where a small spill would devastate salmon stocks leading to issues of food security. “If we have to, it will be our Standing Rock,” says Chief Lee Spahan of Coldwater Indian Band.


Even within the Secwepemc territory, the largest traditional territory affected, only four of the territory’s 17 bands have signed agreements — including the Simpcw First Nation, who has the greatest land exposure to the current pipeline and have vocally supported the Trans Mountain Pipeline. Yet other bands in the same area vigilantly oppose the expansion in their territory, citing an absence of consent by the Government of Canada and a divide and conquer tactic by Kinder Morgan, due to an extreme housing and poverty crisis.


Just recently, many First Nations travelled to Texas to raise their concerns directly with Kinder Morgan, raising doubt between stakeholders on the transparency of environmental concerns. But First Nations are not merely stakeholders, they are title-holders and rights-holders. The duty to consult lies with the Government of Canada, not Kinder Morgan. The Liberal Government has time and time again affirmed their commitment to a nation-to-nation process, reconciliation, and eventually implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). By referencing the “rule of law” in his determination to get the pipeline built, Justin Trudeau implies that Section 35 of the Constitution Act and free, prior, and informed consent as part of UNDRIP will invariably be secondary considerations under this government’s vision of national interest.


Nevertheless, the numerous claims or charges of the absence or paucity of consultation, criticisms raised by the National Energy Board prior to government approval, and the makeup of that approval itself raises too many red flags that can have a bigger impact on the success of this project than a division of powers debate.

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