No consent – No pipeline!
By K.C. ADAMS
Kinder Morgan, the biggest pipeline monopoly in the U.S., announced on February 8 a halt of all non-essential work on the $7.4 billion Trans Mountain pipeline project from the Alberta oil fields to Vancouver. The company said legal uncertainty surrounding the project posed an unacceptable risk to investors.
Within days, federal Finance Minister Bill Morneau said the government would do whatever was necessary for construction to proceed this summer, including possible financial support. Alberta Premier Rachel Notley added that her government was looking into purchasing the pipeline, which would mean paying off Kinder Morgan. The two governments are engaged in secret negotiations with company executives.
The Trudeau and Notley governments declare the pipeline will be built despite the determined opposition and lack of consent from broad sections of the people especially in the lower BC mainland, among those concerned with the natural environment, many affected Indigenous peoples and BC municipalities, the Union of BC Indian Chiefs and the BC government. The federal and Alberta governments claim they are defending the “rule of law” and the existing “constitutional arrangements,” and that the pipeline is both in the national interest and crucial for the Canadian economy.
No one doubts that governments can and do act to impose the will of the global financial/industrial cartels against the public interest. The will and private interests of the financial oligarchy have become in Trudeau’s words the “national interest” to negate the public interest, and for the federal and Alberta governments what is good for the energy cartels is good for the economy.
The executive police powers of the state represent the conception of national interest Trudeau advocates. These police powers are mobilized to criminalize the opposition to the schemes of the financial oligarchy. Already over 200 arrests of people protesting the Kinder Morgan pipeline have occurred with hundreds and possibly thousands more expected if construction proceeds without the consent of the people. With the strident words coming from the federal and Alberta governments and the unleashing of police powers, an issue that should belong to the polity to decide has been turned into a matter of law and order and the criminalizing of those who refuse to submit, including two elected members of Parliament.
In this case, the federal and Alberta governments are going all out to inflame passions, set the people against each other and create a level of hysteria of the kind usually associated with acts of war and aggression. This includes accusations against the BC government that it opposes the “rule of law” because it announced the pursuit of a legal reference from the BC Court of Appeal regarding its provincial authority to restrict economic activity if it fails to meet environmental conditions established by the province. In this regard, the BC government has already received the vocal support of the government of Quebec. One commentator in the mass media now says the Kinder Morgan pipeline issue has created a crisis of federalism of the same proportion as the Meech Lake Accord constitutional crisis in 1987. This ignores that much has changed in Canada and the world since that time. The competition over power by the global imperialist cartels has increased immensely under the neo-liberal anti-social offensive and imposition of free trade under the domination of the financial oligarchy.
The contradictions within Canada and the world have become a clash of authorities representing private interests, a clash of police powers. No role is accorded to the United Nations or federal, provincial and municipal jurisdictions or anything for that matter, such as school boards, that may or may not interfere with the most powerful private interests and their financial/industrial/military cartels that own and control the Canadian and global economy within the U.S. imperialist system of states.
In this instance when Trudeau speaks of the national interest or Premier Notley cries out that the sky will fall without the pipeline, they are announcing their intention to use the state treasury to guarantee Kinder Morgan’s investment and to use police powers to enforce the will of the powerful private interests without the consent of the people.
The authorities seek to negate the human factor and its social consciousness of its right to decide and control those affairs affecting the people, their economy and Mother Earth. This negation cannot and will not be accepted. The consent of the governed is required in all instances and that consent must not and cannot be coerced with police powers and disinformation. The people will stand firm in defence of their right to decide.
(Photos: Coast Protectors, R. Rowland, C. Latimer)
Who decides? The people decide!
The Indigenous peoples and people of British Colombia have not given their consent to the Kinder Morgan pipeline expansion and shipment of bitumen in tankers through the Burrard Inlet and the Salish Sea. The organized workers’ movement in Alberta has long taken the stand of opposing the shipment of raw resources such as bitumen and dilbit out of the province, as that is no way to develop an economy. However, now that Alberta has an NDP government doing the bidding of big oil, huge pressure has been exerted on the workers to remain silent, while they continue to be excluded from all decision-making about the economy. This cannot be considered consent with the present direction of the economy.
The Trudeau government claims it conducted an extensive and “robust” review of the pipeline, fulfilling its duties to consult and accommodate Indigenous peoples. It also suggests that actions by provincial or municipal governments requiring Kinder Morgan to comply with provincial law or municipal bylaws prior to construction are infringing on federal jurisdiction.
The Trans Mountain Project has not received free, prior and informed consent from the Indigenous peoples affected by the project which is taking place on their unceded lands with many rejecting the pipeline outright especially in the Lower Mainland. Many in the interior have accepted a financial payment for use of their territory if the pipeline is built but this does not constitute consent. All this is a clear violation of international law, as well as decisions of the Supreme Court of Canada requiring full prior consultation and accommodation. It denies the right of the Indigenous peoples to govern themselves and decide what takes place on their territories according to their own law, and violates the principles of nation-to-nation relations.
Heavily redacted memos released through a Freedom of Information request show that department officials informed Minister of Energy and Resources Jim Carr prior to the pipeline’s approval that 59 of the 114 Indigenous groups affected by the pipeline needed more time for adequate consultations. Civil servants also informed Carr that the government would face criticism for giving Indigenous peoples only two weeks to revise and provide comments on a massive report on the consultations that had taken place. The memos show that the government ignored the warnings of its officials that a hasty approval was not going to fly.
Instead of bringing itself into conformity with its legal obligations, the Trudeau government then established a Ministerial Panel in May 2016, tasked with engaging with local communities and Indigenous peoples and a mandate to “identify gaps and/or issues of concern of which the Government should be aware before deciding the fate of the pipeline proposal.” The Ministerial Panel was given extremely short time lines to conduct its work, which resulted in short or no notice of hearings, failure to notify Indigenous peoples, and failure to hold hearings in some communities impacted by the project.
In spite of the impediments, some 2,400 Canadians attended the public meetings, 650 people made direct presentations, and 35,259 people responded to an online questionnaire. The Report of the Ministerial Panel was delivered on November 2, 2016 and provided detailed information of the concrete concerns and unanswered questions brought forward by participants. The Panel in their Report noted, “The issues raised by the Trans Mountain Pipeline proposal are among the most controversial in the country, perhaps in the world, today: the rights of Indigenous peoples, the future of fossil fuel development in the face of climate change, and the health of a marine environment already burdened by a century of cumulative effects.”
The government has given no indication that it paid the slightest attention to the Panel’s Report or addressed any of the concerns raised. On November 29, 2016, Prime Minister Trudeau announced that he had given approval for the Trans Mountain pipeline expansion.
The decision has been challenged by seven Indigenous peoples, the cities of Vancouver and Burnaby, as well as two environmental groups. The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, Upper Nicola Band, Stk’emlupsemc Te Secwepemc and Sto:lo have challenged the decision on the basis that the government failed to properly consult with their individual nations before approving the expansion. The challenge was heard in October 2017, but the court has not yet made a decision.
In 2016, the Federal Court of Appeal ruled that the government had failed to properly consult Indigenous peoples affected by the Northern Gateway pipeline. The government had the option to return to the table, but instead declared Northern Gateway dead while throwing its support behind Trans Mountain.
More recently, the government of BC has said it is proceeding with a reference to the BC Court of Appeal for a legal judgement on provincial jurisdiction with regard to Trans Mountain and environmental concerns. Trudeau as well as his Finance Minister Bill Morneau have said they will not ask the Supreme Court for a reference, a route that many commentators have argued would bring the quickest legal decision.
With or without any action by the BC government, “uncertainty” about the project — in the face of the failure to respect Indigenous rights and broad opposition by the people of BC — is not going away. In addition, the permitting process is a complex one, and includes the need for consultations with Indigenous peoples. This raises the question of what Kinder Morgan is up to. It appears to many that it has seized on an opportunity to enrich itself through blackmail using the desperation of the Notley government, which has convinced itself that its re-election stands or falls on whether it can get this pipeline built, and the compliance of the Trudeau government.
Turning real concerns of the people into a matter of law and order is not going to make the issue of Who Decides? go away. The crisis is not a dispute between the people of Alberta and BC, or the federal and provincial governments, or even one provincial government set against another. The crisis engulfs the existing political institutions and the negation of peoples’ right to exercise their sovereignty and decision-making authority. Canada needs new constitutional arrangements. Canadians and Indigenous peoples are not going to agree to be marginalized and removed from the decision-making process, while governments submit to the direct rule of foreign financial/industrial cartels like Kinder Morgan and energy monopolies that demand everything serve their private interests and empire-building. This is the 21st century. To open society’s path to progress, the people’s demand for empowerment to decide the direction of the economy must prevail.
3. The Enbridge Northern Gateway Pipelines was a project to build a twin pipeline from Bruderheim, Alberta to Kitimat on the north coast of BC. The eastbound pipeline would import natural gas condensate and the westbound pipeline would export diluted bitumen from the Athabasca oil sands to the marine terminal in Kitimat.
4. By law the permits must conform with 37 conditions outlined in BC’s environmental certificate and the 137 conditions detailed in the National Energy Board’s approval. However, much evidence exists that the National Energy Board’s record of ensuring compliance with its directives and conditions is abysmal. For example, Kinder Morgan proceeded to sign contracts to manufacture pipe, which then began even before the required permits were issued.
BC’s Energy, Mines and Petroleum Resources Ministry reports that the project requires 1,187 provincial permits, many of which also require Indigenous consultations. BC also has a constitutional and moral obligation to fulfill its duties to consult and accommodate potentially affected Indigenous peoples before issuing provincial approvals and permits. Trans Mountain has to date submitted 587 provincial permit applications, of which 201 have been approved and 386 are under review.
(Photos: 350 Canada, J. Foy, M. Hudema)
Canadians stand together with one voice
Indigenous leaders together with representatives of the cities of Vancouver and Burnaby held a news conference on April 16 to reaffirm their continued opposition to expansion of the Kinder Morgan Trans Mountain pipeline.
Union of BC Indian Chiefs (UBCIC) Grand Chief Stewart Phillip said the opposition to the project is broad-based and entrenched. Grand Chief Phillip emphasized that Indigenous peoples have a constitutional and legal right to protect the health and well-being of their loved ones and if ever there was a spill of bitumen on land or water it could be catastrophic.
Burnaby Mayor Derek Corrigan told the news conference that the city is continuing to use all legal avenues available to oppose the Trans Mountain pipeline expansion. Mayor Corrigan said the expansion project short circuits the legal process and civil disobedience against the pipeline will only continue to grow. The existing Kinder Morgan pipeline has already burst within Burnaby city limits causing a terrible mess and that was not bitumen but heavy oil.
Speaking later on the CBC radio program The Current, UBCIC Vice-President Chief Bob Chamberlin said the opposition to the pipeline is in part related to “recognizing the human rights of the Indigenous peoples of Canada.” Chief Chamberlin pointed out that the Canadian government has informed the international community that Canada unequivocally embraces the UN Declaration on the Rights of Indigenous Peoples. This declaration clearly upholds the right of Indigenous peoples to free, prior and informed consent with regard to development on their territories. The government must take an entirely new approach, and cannot pick favourites in order to divide and conquer, Chief Chamberlin said.
Indigenous leaders have repeatedly denounced the Trudeau government for refusing to recognize the right of Indigenous peoples to give or not give consent to development on their territory. The government only agrees to a fraudulent process of consultation after having already submitted to the demands of the global monopolies. This fraudulent process of consultation goes on all across the country not just with regard to the Kinder Morgan project. The government sets a bogus agenda of how and when consultation will take place, decides when its duty to consult has been fulfilled, and declares at that point it can now impose the plans of the global monopoly with impunity using police powers and criminalizing the opposition.
Fifty-nine Indigenous groups affected by the Kinder Morgan pipeline have made clear that adequate consultations have not taken place and they cannot give their informed consent. Many other Indigenous peoples along the Kinder Morgan pipeline route have accepted a financial compensation package, which they emphasize is not consent but merely to have one in place if the expansion pipeline is forced through.
The Trudeau government in the face of those insisting on their rights has already unleashed court injunctions and a massive police presence to arrest demonstrators in Burnaby and elsewhere and crush those who refuse to give their consent. This must not pass! No consent — no pipeline!
Source: TML Weekly, April 21, 2018 – No. 15