Martyn Brown: Playing the “R” card on Kinder Morgan
Sometimes a picture is worth a thousand words.
So I’ll spare you the extra thousand words I might have added to express how offended I am that Canada’s prime minister is off gallivanting in India, instead of dealing with the most serious problem now facing our nation.
Namely, the escalating dispute over the Kinder Morgan project and the threat it poses to Canada’s national interest in advancing reconciliation.
The international media is now reporting that his Indian trip "is best described as a slow-moving train wreck ...”
The same might be said about his disastrous journey at home in his approach to reconciliation with Canada’s Indigenous peoples in respect of the Trans Mountain pipeline fiasco.
That project and its opponent “host” First Nations are about as compatible as oil and water.
The provocative way in which it is being imposed on British Columbia by the Trudeau government, in flagrant contempt of the “R” word that should be Canada’s top priority, is lighting a match on a volatile situation.
No one should minimize or underestimate how that conflict is inflaming the ire of so many Aboriginal communities, not just in B.C., but across our country.
It threatens to provoke another clash with Canada’s Indigenous peoples, the likes of which has not been seen since the dark days of Oka, Ipperwash, Gustafsen Lake, Burnt Church, Apex Mountain, Duffy Lake, and Seton Portage.
The deep anger and sense of betrayal in Trudeau’s inept handling of that file is rapidly rolling east and will not be easily contained.
Like a heavy oil spill, it is now floating just under the surface of an increasingly turbulent political sea. One that no boom from Alberta or bluster from Trudeau can stifle or skirt.
On March 10, that stain on our nation is about to get very real.
Members of the Tsleil-Waututh First Nation will be kicking off a mass mobilization, labelled “Protect the Inlet”.
Their mission? To “send a clear message to Prime Minister Trudeau: the Kinder Morgan pipeline will never be built.”
It is “just the beginning” of an ongoing initiative also named “Kwekwecnewtxw” ( “a place to watch from”), described as “a powerful, mass and creative non-violent action to protect [B.C.’s] water, land and the climate”.
A reconciliation Rubicon for Trudeau
While Justin Trudeau gleefully poses for photo ops in front of the Taj Mahal, the nation he failed by breaking his election promise on the Kinder Morgan review process is on the cusp of a constitutional crisis.
Whether Trudeau knows it or not, Canada is about to cross a “reconciliation Rubicon” from which there will be no turning back.
While he is off glad-handing politicians in India to promote trade, the country he left behind in his rush to triple the flow of unrefined tar sands oil to the Pacific is now facing the prospect of a full-blown internal trade war. Courtesy of Alberta premier Rachel Notley.
He should think about this: Alberta and British Columbia’s two-way trade is worth about $33 billion—more than four times the $8 billion in trade in 2016 between Canada and India.
Alberta and B.C. each export over $16 billion worth of goods and service to the other—more than the entire $15-billion trade goal that Canada and India had set and failed to meet by 2015, in only getting halfway.
Ho, hum. Nothing to write home about.
To say nothing of the other social, environmental, and economic risks that have got so many British Columbians hopping mad about the Trans Mountain expansion project.
No biggie. Nothing that warrants our prime minister’s undivided attention back in Canada.
In any case, he has left his mess in no less incapable hands, in the person of Natural Resources Minister Jim Carr.
Both of them have refused to rule out sending in the troops if necessary, to quell whatever trouble looms in Lotusland.
Of which there will be plenty in the days and months ahead, if Trudeau sticks to his guns.
Hanging in the balance is Canada’s goal of reconciliation. Once again, its “third solitude”—Indigenous peoples—have been relegated to a secondary concern in Trudeau’s distorted view of the “national interest”.
It is their constitutional rights and title that are being unduly infringed by the Trudeau government’s reckless actions on behalf of Big Oil.
It is also their unceded traditional territories that stand to be violated without their “free, prior and informed consent” by that pipeline project. In contempt of both the United Nations Declaration on the Rights of Indigenous Peoples and of Trudeau’s own commitment to honour that global affirmation of human rights.
It is their vehement opposition to that project—including its associated seven-fold increase in oil tanker traffic in the Burrard Inlet and across the Salish Sea—that has been subordinated to the supposed “national interest” in further padding the pockets of monstrously large multinational oil companies and state-owned monopolies.
B.C. can strengthen Indigenous rights
What might British Columbians do about that, to help right that wrong?
That is the subject of this very lengthy and legalistic analysis—a “labour of love” offered only for those readers who deeply care about this project’s impacts on Canada’s relationship with Indigenous peoples.
How should British Columbia properly respond to a heavy oil pipeline project that is so ardently opposed by so many of its citizens, including those whose Aboriginal rights and title stand to be so seriously and permanently impacted?
That is, apart from “just saying NO”, as I think we should say, to the entire prospect of increasing the exploitation of the tar sands and doubling down on further development of fossil fuels.
At a minimum, we should be urging Trudeau and Notley to first refine that filthy product in Canada that they are so intent on shipping off to Asian markets. Or we should be investigating other options for shipping bitumen in safer solidified forms, such as David Black has proposed and as CN has promoted with its “CanaPux” pellets.
If nothing else, those options might at least reduce the environmental risks of shipping heavy oil to tidewater. And they would create many more jobs in Canada, as opposed to putting Burnaby’s existing refinery jobs in jeopardy, as Unifor fears.
How can B.C. best respect and protect the interests and rights of Canada’s First Citizens?
It is a key question that Premier John Horgan is trying to rectify and resist, using every legal tool in his government’s toolbox, as he alluded to again in his latest video.
A question that Environment and Climate Change Strategy Minister George Heyman is also grappling with, actively supported by B.C. Green party Leader Andrew Weaver and his caucus. And also by national Green party leader Elizabeth May and federal NDP MPs, led by Kennedy Stewart, Murray Rankin, Fin Donnelly, and Niki Ashton.
Their strategy is four-pronged: political, economic, legal, and regulatory.
I’ll leave aside for a future article the potential political and economic responses that the province might contemplate.
As for the legal battles now underway or initiated, I don’t propose to get into them here.
Suffice it to say, the Horgan government has argued as an intervenor on the 15 consolidated challenges before the Federal Court of Appeal. It is now hoping for a favourable ruling that would overturn federal approvals of the Trans Mountain project on any number of grounds.
Last week, it joined the City of Burnaby in applying to appeal the National Energy Board’s recent order. It essentially nullified that municipality’s legal authority to regulate aspects of the project’s construction activities.
It declared that Trans Mountain is not required to comply with two sections of that city’s construction bylaws, which would have required Trans Mountain to obtain preliminary plan approvals and tree-cutting permits for its project-related work.
Instead, the NEB authorized the company to override those bylaws and begin work in expanding its Burnaby oil terminal and in building temporary infrastructure near its Westridge Marine Terminal.
So much for “one law, one country” at all levels of government, where pipelines are concerned. Let’s hope that the B.C./Burnaby appeal is successful.
Most recently, the province has further initiated a formal challenge under the Canadian Free Trade Agreement’s dispute settlement process, to counter Alberta’s ban on B.C. wines.
That trade assault is a clear breach of the Trade, Investment and Labour Mobility Agreement, the New West Partnership, and basic tenets of international trade law. It also targets Aboriginal-owned wineries and tourism businesses.
Today (February 22), Horgan and Heyman announced that the B.C. government will initiate a reference to the courts on the constitutionality of the province’s intended proposed new regulatory regime that I have previously discussed.
The province will move forward on four of the five elements it outlined last month, and it will now seek legal guidance on how to obtain a clear judgement from the courts on the legality of the fifth element that Alberta has said is “unconstitutional” in its intent.
Sadly, the federal government has refused to work cooperatively with B.C. in even seeking that reference to the courts, leaving Horgan’s government to go it alone.
As I exhaustively argued in my last piece in the Straight, the legality of B.C.’s actions will depend on how and in what way they act to “restrict” the increased transportation of diluted bitumen.
This essay offers one way to help advance B.C.’s case in partnership with Indigenous peoples.
Smart regulations can be an extremely powerful tool
The province maintains that it is not aimed at challenging the legislative or constitutional validity of the federal government’s approvals of the Kinder Morgan project, per se.
Nor does it propose to avoid the 157 conditions that were central to the Trudeau government’s approval of that project, many of which mandate the need for ongoing Aboriginal consultations and environmental protections.
Nor does its regulatory initiative aspire to reverse the 37 conditions that B.C.’s former Clark government imposed in issuing its environmental assessment certificate.
Rather, that consultation process is aimed at strengthening regulations respecting how those project approvals and conditions are to be executed, so as to enhance oil spill prevention, response, clean-up, remediation, and compensation.
Those proposed measures also anticipate some as yet undefined regulatory restrictions on the increased transportation of diluted tar sands oil (i.e. bitumen, or “dilbit”), pending the recommendations of an independent scientific advisory panel.
That panel will “address the scientific uncertainties outlined in the report, The Royal Society of Canada Expert Panel: The Behaviour and Environmental Impacts of Crude Oil Released into Aqueous Environments”.
Note that any such regulatory “restrictions” need not imply the “prevention” of increased transportation of dilbit, as Alberta and the federal government fear and suppose.
The B.C. government has said no such thing, whether or not that is its intent.
As I argued in my last piece, those restrictions might well be implemented in a way that is entirely consistent with the province’s jurisdiction under sec. 92 and 92(a) of the Constitution Act (1867).
Later this month the province will release its intentions paper on its proposed regulatory regime, to clarify what it has in mind, as a basis for public consultation and feedback.
That new regulatory framework could be an incredibly effective power tool, if smartly structured.
It could be instrumental in at once strengthening the province’s capacity for environmental protection and also advancing Canada’s national interest in reconciliation with Indigenous peoples.
Let me now turn to the meat of that legal basis and objective, and how it might be statutorily and constitutionally achieved.
Again, my concern here as such is not whether either level of government fulfilled its constitutional obligations to properly consult and accommodate Indigenous peoples in approving the Trans Mountain project as they did.
Truth be known, I take no issue with the company’s substantial efforts in that regard, much as I feel that the federal government particularly failed in its duties.
But that is an issue that the Federal Court of Appeal will rightly decide in answering First Nations’ challenges on that constitutional question.
No doubt, Trans Mountain, the federal government, the B.C. government, and all of those governments’ relevant departments and entities went to great lengths to ostensibly meet their consultation and accommodation obligations.
You can read their entire exhaustive account of those initiatives in their November 2016 Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project.
Clearly, both governments assiduously documented their assessments of the various First Nations’ strength of claims over impacted rights and title. They tried to properly discharge their duties in accordance with the depth of consultation and accommodation those assessments suggested was warranted, whether they succeeded in that regard or not.
The list of Indigenous peoples’ identified concerns was duly noted. Too often and too demonstrably, however, those concerns, risks, and impacts were promptly ignored, where no satisfactory accommodation was possible given the insistence of pushing that project forward as envisioned.
The authorities mostly concluded that the impacts of the project on those rights ranged from “negligible” to “minor” to “moderate”.
Whether the court agrees or finds those measures to be adequate or not remains to be seen.
Certainly the federal government thinks its actions were consistent with its Guidelines on Fulfilling the Duty to Consult. It based those “best practices” on its understanding of the relevant jurisprudence and all that it demands.
Those guidelines were updated to take into account recent Supreme Court of Canada rulings on what is required of the Crown in honouring its duties of Aboriginal consultation and accommodation. Including the direction provided by the 2016 Gitxaala Nation v. Canada ruling, in which it essentially quashed the federal government’s approval of the Northern Gateway project.
But a number of recent decisions on the adequacy of consultation and accommodation have gone against Indigenous peoples. Most recently, the Supreme Court of Canada’s November 2017 ruling on Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations).
So it’s a mug’s game trying to fathom what the Federal Court of Appeal might decide on the challenges now before it on that score, on the Trans Mountain project.
What constitutes genuine consultation?
As the Supreme Court pointedly explained in its 2004 seminal ruling on the issue of consultation and accommodation, in the case known as Haida Nation v. British Columbia (Minister of Forests), “At all stages, good faith on both sides is required.”
“However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. [Emphasis added.]
“As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.”
“This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim,” the SCC continued.
“The Aboriginal ‘consent’ spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.
“The accommodation that may result from pre-proof consultation is just this—seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other’s concerns and move to address them."
The challenge, of course, is when governments interpret “accommodation” to mean only that they might only try to minimize negative impacts on Aboriginal rights and title, without ever seriously contemplating diverting from their initial course of action.
“Accommodation” is actually a fairly dubious construct if it actually allows governments to pre-ordain what they wish to do and will act as necessary to make happen, without given any serious consideration to “allowing” Aboriginal governments to say “no” and mean it.
Real consultation and accommodation in this instance would have meant listening to Indigenous people’s profound opposition to the pipeline’s risks and material impacts.
It would have meant remaining genuinely receptive to their contention that the pipeline is fundamentally incompatible with their rights and title, and should not be imposed regardless.
At a minimum, it should have meant ensuring that the ongoing conflicting interests engaged by that project’s approval would be harmonized in the interests of reconciliation, through new processes of shared decision-making.
That is the fertile ground that the Horgan administration now has a duty to explore.
It should be working in concert with Indigenous peoples to develop and adopt new statutory decision-making processes that include them as equal partners.
As opposed to the subordinate subjects and objects they have been historically reduced to being under the NEB’s watch and rule.
That means taking extraordinary steps to also safeguard against undue infringements against as yet unproven Aboriginal title, including by directly empowering First Nations in decision-making processes that affect their constitutional interests.
The Supreme Court has expanded on that duty in several subsequent rulings, including in the landmark 2014 Tsilhqot’in Nation v. British Columbia case, which is still the seminal case on Aboriginal title.
In finding that the Tsilhquot’in did, in fact, hold Aboriginal title over a huge swath of their traditional territory, the court also said this:
“…if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.
“Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.
Legal stakes are high for taxpayers
Virtually the entire length of the proposed Trans Mountain pipeline in B.C. is subject to current or prospective Aboriginal title claims that have not been tested in court.
If any one of those claims succeeds at some point, it is entirely possible that it could force the cancellation of the project or nullify the Crown’s legal approvals, to the extent it amounts to an “unjustifiable infringement”.
Who would pay for the billions of dollars in compensatory damages that would likely be awarded to those First Nations—or God forbid, to Kinder Morgan—depending on how those claims play out?
You and me, that’s who.
All Canadian taxpayers could be on the hook for an extraordinary compensation bill, even years down the road.
Yet the Trudeau government doesn’t want to talk about that very real prospect, or what its plans might be for coping with a future proven claim of Aboriginal title that is in conflict with the pipeline’s path, risks, and consequences.
Shared decision-making with real teeth would go a long way to avoiding such costly scenarios.
Again, remember that Government of Canada has supposedly committed to the U.N. Declaration on Indigenous Rights.
Though as the Truth and Reconciliation Commission countered, “Despite [its] endorsement, we believe that the provisions and the vision of the Declaration do not currently enjoy government acceptance.”
A few highlights from that document are in order, with emphases added.
“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”
“1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources...
“2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.”
Note that the United Nations’ 2013 explication of that concept of “free, prior and informed consent” explains it as follows:
“States must have consent as the objective of consultation before any of the following actions are taken:
- The adoption of legislation or administrative policies that affect indigenous peoples (article 19)
• The undertaking of projects that affect Indigenous peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (article 32).
“In certain circumstances, there is an obligation to obtain the consent of the indigenous peoples concerned, beyond the general obligation to have consent as the objective of consultations. For example, the Declaration explicitly requires States to obtain consent of indigenous peoples in cases of:
- The relocation of indigenous peoples from their lands or territories (article 10)
- The storage or disposal of hazardous materials on indigenous peoples’ lands or territories (article 29)
It is beyond me how the storage of that hazardous material—diluted bitumen—on the unceded traditional territory of the Burrard Inlet’s First Peoples is consistent with that direction on Indigenous rights, which the federal government purports to support.
It is equally baffling how the federal government could ever imagine that it seriously ever had “consent” as the objective of its consultations in pushing through a pipeline project that so deeply affects Indigenous peoples’ rights to land, territory, and resources.
But back to the Declaration.
“1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
“2. States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
“3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”
What “mechanism” has the federal government provided for “just and fair redress” that could in any sense adequately compensate Coastal First Nations for the risks and damage that will inevitably ensue from a major oil spill made so much more likely by the Kinder Morgan project?
None, that I am aware of.
How are any of those or other UNDRIP “rights” consistent with the Trans Mountain pipeline, which the federal government is insisting on ramming through over the explicit objections of so many adversely impacted First Nations?
They are not. To suggest otherwise is a fraud of the first order that adds insult to injury for Canada’s Indigenous peoples.
Canada’s fundamental rejection of the concept of “free, prior, and informed consent”, as expressed in its 2014 Statement at the World Conference on Indigenous Peoples—and reflected in its handling of the Trans Mountain project application—is not a route to reconciliation. It is a categorical denial of that right that only frustrates that end to preserve all power for Parliament.
Nor is the federal government’s “too bad, so sad” approach on that project remotely consistent with its supposed new commitment in recognizing Aboriginal rights.
As Trudeau put it, "Going forward, recognition of rights will guide all government relations with Indigenous peoples.”
He slammed the previous approach, whereby “Indigenous peoples were forced to prove, time and time again, through costly and drawn-out court challenges, that their rights existed, must be recognized and implemented."
Yet it is precisely that same “until you prove your rights and title, you got nuthin' ” approach that also effectively underlies his government’s approval of the Kinder Morgan project.
Time to put up or shut up.
New regulatory regime could put Trudeau on defensive
Enter the B.C. government’s stated intention to regulate and perhaps also restrict the increased flow of heavy oil across its territory.
Those regulations should not be seen as being aimed at “killing Kinder Morgan”, per se, much as I would certainly welcome that.
Rather, they should be viewed as a legitimate effort to enhance B.C.’s regulatory protection of the environment, pursuant to its constitutional authority under sections 92 and 92(a) of the Constitution’s distribution of powers.
They should be done in a way that advances the Crown’s obligations of consultation and accommodation with Aboriginal peoples, before and after that project is complete.
And they should be done in a way that integrates both of those imperatives under new shared decision-making processes with Indigenous peoples that promote reconciliation.
That would vastly strengthen the B.C. government’s argument in its reference to the courts, insofar as it engages additional goals beyond its environmental imperatives.
It puts a new lens on the issues of interjurisdictional immunity and paramountcy that are so key to the outcome of B.C.’s reference case on its proposed new regulatory measures.
It stands to lift the debate beyond the province’s jurisdiction to exercise its shared constitutional authority on the environment in respect of an environmental hazard within pipeline that Ottawa maintains only it can regulate.
It stands to integrate the higher constitutional imperatives posed by the protections guaranteed to Indigenous peoples and also the country’s national interest in promoting reconciliation.
Step one in that regard is to first recognize this overriding fact: any existing Aboriginal rights and title protected under sections 25 and 35 of the Constitution Act, 1982 are not subordinate to the federal and provincial division of powers under Constitution Act (1867).
The courts have been very clear: those Aboriginal rights are enshrined in the constitution to protect Indigenous peoples from unjustifiable infringements of those rights by those governments.
Those guarantees are written into the constitutional provisions that Trudeau's much brighter father enshrined in Canada’s highest law as a hedge against infringements on Indigenous Canadians’ rights that the younger Trudeau government now justifies in the “national interest”.
Appalling. And galling.
The courts have laid down chapter and verse about the protocols that must be observed by governments in making decisions that impact those Aboriginal rights.
They have also ruled on many cases that either uphold or quash federal and provincial laws that impinge on those site and fact specific Indigenous rights, to the degree that they can be justified in serving a compelling public purpose.
Making more money for Big Oil at the expense of British Columbia’s environment, its First Peoples, and its goal of sustainable growth is sure not my idea of what should be meant by that standard.
Regardless, to my knowledge, there has not yet been any case that has contemplated the constitutionality of a law or regulatory regime of the type that I propose, in advancing the B.C. government’s objectives on oil spill prevention and protection.
Specifically, I am proposing a new regime that is aimed at protecting Aboriginal rights and title and at advancing the national interest in reconciliation, including from actions legally taken by the federal government in regulating interprovincial pipelines.
I am proposing the creation of a new environmental regulatory regime—initially focused on oil spill prevention, clean-up, remediation, compensation, and transportation within B.C.—that is predicated on shared statutory decision-making with First Nations.
In part, to guard against any undue or avoidable infringements of their rights and title from government decisions in respect oil pipelines or other modes of diluted bitumen transportation. Not to test the limits of the permissible infringements by governments on Aboriginal rights, as the jurisprudence on this issue has mostly so far grappled with.
I suggest that regime might be one way of advancing—not frustrating or denying—the federal government’s ostensible purpose in approving the Trans Mountain pipeline or its stated aim to promote reconciliation.
Which would also make it compatible with the federal government’s acknowledged paramountcy in regulating interprovincial oil pipelines.
Courts may look kindly on shared jurisdiction
The Supreme Court stressed in Haida Nation that “it is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts.”
As the Supreme Court of Canada wrote in Gitxaala Nation,
“To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the ‘meaningful content’ mandated by the ‘solemn commitment’ made by the Crown in recognizing and affirming Aboriginal rights and title…also risks unfortunate consequences.
“When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.” [Emphasis added.]
Indeed, the joint federal/provincial accommodation report on Trans Mountain also proposed that the Crown create an “Indigenous Advisory and Monitoring Committee” (see page 69).
“[It] would establish a forum for Indigenous communities to engage with federal regulators and the federal government (and potentially provincial governments and proponents) to participate in monitoring of construction, operation, and decommissioning of the Project.”
Trouble is, that proposed advisory committee is just that: yet another toothless “advisory” body aimed at more top-down consultation with Indigenous peoples, with no real power of its own.
What if the B.C. government went a step further, in exercising its shared constitutional right over environmental protection on oil spill prevention, clean-up, remediation, and compensation?
What if it created its own shared decision-making authority, comprised of equal representatives from Indigenous communities and the provincial government? With real, new legal power to research, regulate, monitor, and ensure compliance with its direction?
What if it created a new Heavy Oil Regulatory Authority, whose job was not just to serve as an advisory body, but rather, as a statutory decision-maker, similar to the Environmental Assessment Office?
What if it was tasked with overseeing the independent scientific research to be done in better understanding how diluted bitumen behaves in various waters and climatic conditions?
Would the federal government or even Alberta dare to challenge the constitutional validity of that regulatory authority and its enabling legislation in court, continuing to insist as Premier Notley is doing today, that B.C. is somehow acting “illegally”?
Especially after that new entity had been developed, as it would have to be, in consultation with First Nations, without prejudice to their claims, rights, or title?
Perhaps. Indeed, we should insist on referring that new construct to the Supreme Court, to test that proposition, as an integral feature of the province’s new regulatory regime.
Would that new type of independent regulatory authority comanaged by the province and Indigenous peoples add a new twist of uncertainty to such Big Oil projects?
No doubt. But so what?
It would actually serve the national interest by advancing the march to invite Aboriginal communities into confederation as full and equal partners.
Because they do have inviolable rights and title that cannot be alienated or wished away by the two orders of government recognized in the constitution.
Because those rights and title also constitute an underlying burden on Crown title—and arguably also on fee simple title—in respect of Aboriginal peoples’ unceded traditional territory.
Because in the absence of those established rights of Aboriginal title, the provincial government actually owns the foreshore on B.C.’s Pacific coast, defined as the area between the low–tide and high–tide marks. Not the federal government.
What would the courts say about the issue of interjurisdictional immunity and paramountcy, as it applies to regulating areas of shared jurisdiction in furtherance of Aboriginal people's constitutional rights and the goal of reconciliation?
In Gitxaala, the Supreme Court said that “It is a well-recognized principle of statutory interpretation that statutory provisions that are capable of multiple meanings should be interpreted in a manner that preserves their constitutionality.”
In any case, the courts have only said that there is no role for either the federal government or provincial governments’ constitutional authority to ever “trump” Indigenous peoples’ constitutional rights.
Because the latter is at its heart, a constitutional check on the former.
Moreover, the Supreme Court of British Columbia added some very importance guidance in the 2016 Coastal First Nations v. British Columbia ruling.
It said this:
“…it remains an important exercise for courts to give effect to validly-enacted provincial laws unless they interfere with the core functioning of a federal undertaking.
“This is to be done on a case-by-case basis, and since there are different considerations at stake here, it is not enough to do as [Northern Gateway Pipeline] says and find that the federal government has exclusive power because the case at bar also involves an interprovincial pipeline.
“As long as the 'dominant purpose' of the legislation is intra vires, any secondary effects are not relevant to the question of constitutional validity.
“The Province has a constitutional right to regulate territorial environmental impacts. Since it is established law that regulation of the environment is shared jurisdiction among all levels of government, it flows logically that the [Environmental Assessment Act], whose purpose is to regulate environmental concerns in British Columbia while advancing economic investment in the Province, is valid legislation, even where it applies to an interprovincial undertaking."
The same might be said about a new law conferring such direct statutory powers on an independent, jointly managed, Aboriginal-provincial Heavy Oil Regulatory Authority.
The court continued:
The fact that a section of a provincial law “affects a federal undertaking is not enough to demonstrate that the provision is unconstitutional; NGP must establish that the legislation's effects on federal powers render it inapplicable or inoperable. To establish inter-jurisdictional immunity, NGP must prove that the 'core' of a federal legislative power has been 'impaired' by the provincial enactment…
“To make out the doctrine of paramountcy the respondents must show either a conflict between the provincial and federal legislation such that ‘compliance with one is defiance of the other’, or, if dual compliance is possible, that provincial legislation frustrates the purpose of the federal statute.”
That would be very tough indeed to demonstrate in the case of a new joint regulatory authority, established under a provincial statute aimed in part at more collegially complying with the conditions set out for Trans Mountain as approved by the federal and provincial governments.
It would be extremely difficult to prove such an inherently intractable conflict between that provincial law and the federal government’s legal initiatives to regulate interprovincial oil pipelines.
Especially when that provincial law is aimed at fostering reconciliation through a new shared decision-making process also aimed at honouring the Crown’s duty to consult and accommodate Indigenous peoples in respect of heavy oil transportation and spill protection.
Again, consistent with previous court rulings, that authority would not be empowered to control the routing of any pipeline, as such, or to render any project inoperative, including Trans Mountain.
But it might well be charged with the power to impose environmental safeguards and regulatory restrictions on the transportation, storage, handling, and monitoring of petroleum products within B.C.
Restrictions that are significantly more onerous than any the federal government might impose—or that Trans Mountain’s shareholders might want or accept as being worth their risk of investment.
That might be a political problem for Notley. But it is not an insurmountable legal obstacle that should discourage Horgan from acting to make good on his government’s regulatory intentions.
Citing other judgements, the court further noted that "duplicative federal and provincial provisions will generally not conflict"… "Nor will a conflict arise where a provincial law is more restrictive than a federal law ..."
“… a more restrictive provincial law could frustrate the federal purpose if the federal law, instead of being merely permissive, provides for a positive entitlement.”
Which in this case, might apply to the positive entitlement the federal government has vested in its approval of the Trans Mountain project.
All of which is to say, there is absolutely nothing legally stopping the B.C. government from doing as it suggested on consulting and regulating heavy oil transportation within its borders.
Haida Gwaii Management Council shows the way
Yet a new statutory, shared decision-making process such as I suggest, to newly empower Indigenous peoples, would surely make the province’s efforts in that regard even less legally assailable.
Indeed, it would instantly set a new standard of expectation across Canada on Indigenous involvement in environment and resource management.
One that would put all sorts of new pressure on the governments of Alberta and Canada to consult and accommodate Indigenous people’s rights and interests with similar statutory muscle.
The idea, as such, is hardly revolutionary. It’s just that Canada’s march to that end has been, at best, evolutionary. Slow as bitumen on a cold winter’s day in Athabasca.
Perhaps the best example of shared decision-making in British Columbia is the Haida Gwaii Management Council.
It is comprised of two appointees from each of the parties, the Haida Nation and the B.C. government, and a jointly appointed, neutral chairperson.
It is the product of the 2009 reconciliation protocol between those parties that was legally enabled under the 2010 Haida Gwaii Reconciliation Act.
It was aimed at four key objectives: “shared and joint decision-making; carbon offset and resource revenue sharing; forest tenures and other economic opportunities; and enhancement of Haida socio-economic well-being.”
In furtherance of that reconciliation initiative, and of the 2015 Haida Gwaii Marine Plan, the parties also entered into the Haida Gwaii Marine Plan implementation agreement.
It “established governance structures for joint and shared decision-making, described in the Protocol to include foreshore marine areas. In addition to other responsibilities, these governance structures are responsible for joint approval of protected area management plans and technical and operational management, including review of application for marine tenures.”
The governance structure includes a marine management board, with an equal number of senior representatives for the province and the Haida Nation, appointed by those parties in consultation with each other. In addition, it features a marine implementation technical team that is appointed by that board.
A marine management board based on shared decision-making that works well up North, but that no one in government is likely now contemplating anywhere near the Port of Vancouver.
Why is it, exactly, that the Vancouver Fraser Port Authority’s include no Indigenous members as a statutory right?
The governing directors of that Authority includes eight members appointed by the federal government, seven of which are recommended by port users. It includes only one member appointed by British Columbia, and one member collectively appointed by Alberta, Saskatchewan, and Manitoba. And it includes one member collectively appointed by the 16 municipalities that border the port authority’s jurisdiction.
But not a single member appointed by Canada’s First Nations.
How does that make sense and how is that remotely fair to either British Columbia or to Indigenous peoples, given the increased risks to that port and all the water and land that surround it from even a “modest” heavy oil spill?
Over to you, Trudeau. If you actually give a damn about reconciliation or British Columbia’s exceptional interest in its marine environment.
The Haida Gwaii marine plan at least hints at the right direction.
Why not build on that model, by putting in place a similarly managed Heavy Oil Regulatory Authority?
Why not go still further, by creating it as an independent regulatory authority, with statutory decision-making powers akin to those held by Environmental Assessment Office, or the B.C. Oil and Gas Commission?
Hell, why not rewrite the legislation establishing those entities and others, to specifically assure equal and effective Indigenous representation?
Why not immediately convene a forum to discuss and develop that idea?
To ascertain if there is an appetite for it, by bringing together representatives from the First Nations Summit and the Union of British Columbia Indian Chiefs?
Why not immediately explore that concept with the 96 Aboriginal groups in B.C. that the province identified for consultation on the Trans Mountain project?
The EAO determined that some 81 of those Aboriginal groups needed to be consulted at a deeper end of the consultation spectrum. Some of them organized themselves into collectives, such that 60 Aboriginal groups were consulted at that level.
The other 15 groups were consulted at a lower end of the consultation spectrum.
Why not bring them all back together, for a multi-day summit to canvass the opportunities for shared decision-making in developing the province’s new regulatory regime: in managing oil spill protection; in gaining new independence scientific research on the behaviour of diluted bitumen in various types of water and water conditions; and in restricting the increased transportation of dilbit as need be, until those gaps in scientific knowledge are filled?
Horgan could arrange to hold that meeting within spitting distance of Kinder Morgan’s soon-to-be-built 14 new oil storage tanks.
They are intended to hold another 3.9 million barrels of that diluted tar-sands crud—the stuff of a disaster movie-in-the-making in the heart of B.C.’s most potentially destructive earthquake zone.
Horgan could hold that televised forum at the Vancouver Convention Centre, looking out at the sensitive waterway that some 408 supertankers would pass through every year, loaded to the hilt with their toxic, tarry, gloop.
No extreme risks there to B.C.’s crystalline Burrard Inlet, to the health of that Pacific gateway and its dependent forms of life, or according to the Trudeau government, even to Coastal First Nations.
Are you kidding, Prime Minister?
Are you really determined to do “whatever it takes” to impose those risks on British Columbia—something you wisely never dared to do to Ontario or Quebec, in bowing to their opposition to the Energy East pipeline project and review process?
Why do that to us, in British Columbia? Why do that to Indigenous peoples, in all it risks for reconciliation?
Are you up to hosting that forum, Premier Horgan?
Are you open to fundamentally changing the province’s power relationships with Indigenous people, in pursuit of reconciliation along the lines I’ve suggested?
That would sure be a strong signal that your government really intends to advance its new budget speech re-commitment to reconciliation.
Like finance minister Carole James said, “That means a commitment to fully adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples, and the Truth and Reconciliation Commission’s Calls to Action. The Premier has given every minister the responsibility for adopting and implementing the Declaration and Calls to Action.”
Something to ponder in the run-up to the March 10 “Kwekwecnewtxw”.
Come what may, that initiative is sure to put this issue front and center on Canada’s national stage. No matter where Trudeau happens to be, or how much he might hope to run and hide from the crisis his government is most responsible for creating. Mostly to benefit Big Oil.
It’s time to get real about reconciliation and how this project and the lack of associated shared decision-making flies in the face of that goal.
As the Truth and Reconciliation Commission said:
“In the face of growing conflicts over lands, resources, and economic development, the scope of reconciliation must extend beyond residential schools to encompass all aspects of Aboriginal and non-Aboriginal relations and connections to the land.
“Therefore, in our view, it is essential that all levels of government endorse and implement the [United Nations Declaration on Human Rights]. The Commission urges the federal government to reverse its position and fully endorse the “Outcome Document” [and the principle of 'free, prior, and informed consent'.]
“We believe that the federal government must develop a national action plan to implement the Declaration. This would be consistent with the direction provided by the Supreme Court of Canada. More importantly, it would be consistent with the achievement of reconciliation.”
Amen. And a key part of that plan should start with including Indigenous peoples as full partners in government decision-making that affects their constitutionally protected rights and title.
Starting with the way that the Kinder Morgan project and the transportation of diluted bitumen across their unceded territories affect those First Citizens’ rights, as they also threaten B.C.’s environment and Coastal economy.More