Canada’s Federal Court of Appeals completely halted work on the Kinder Morgan Trans Mountain Pipeline, scoring a major victory for environmentalists and Canada’s First Nations. It is unlikely that the pipeline project, which would have increased tanker traffic seven-fold, will ever be built, say Eugene Kang and Clayton Thomas Muller

Story Transcript

GREG WILPERT: Welcome to The Real News Network. I’m Greg Wilpert, coming to you from Baltimore.

Canada’s Federal Court of Appeal issued a major win for environmental Indigenous groups on Thursday when it rejected approval for the construction of the Kinder Morgan TransMountain pipeline. According to the ruling, the National Energy Board of Canada made a critical error when it supported the project; that is, the board did not consider the increase in tanker traffic off the coast of British Columbia that the pipeline’s expansion would cause. Also, the government did not adequately consult with Indigenous populations affected by the pipeline. The pipeline project involves expanding an existing 1150 kilometre pipeline to transport 900,000 barrels of oil per day from the Alberta tar sands to Canada’s West Coast. Prime Minister Justin Trudeau had approved the project in November 2016, but environmentalists and Canada’s Indigenous populations protested against the project continuously since then. Coincidentally, also on Thursday the shareholders of Kinder Morgan, the company responsible for the project, voted in favour of selling the pipeline to the Trudeau government.

Joining me now to discuss the legal victory against the Kinder Morgan pipeline are Eugene Kung and Clayton Thomas-Muller. Eugene is a staff lawyer for the West Coast Environmental Law Organization in Vancouver. And Clayton is a member of the Mathias Colomb Cree Nation Canada, and a campaigner for 350.org. Thanks for joining us today, Eugene and Clayton.

EUGENE KUNG: Thanks for having us.

GREG WILPERT: So let me start with you, Eugene. Give us an idea as to the significance of this victory. What does it mean for Canada and its environment?

EUGENE KUNG: So this is a very significant decision that came yesterday, in part because of the project that it’s about, so the Trans Mountain pipeline, the Kinder Morgan pipeline that you mentioned. And it’s significant in that regard for a couple of reasons. First, construction, which they were preparing for, stops. It stops today. There is no underlying approval or certificate that can ground all the permits and so on to required for construction. It also is significant because I think the courts have really clarified, in terms of consultation with Indigenous peoples, that that has to be meaningful, and that it’s not- it can’t just be a procedural requirement. So it’s not about the quantity of meetings, but it’s actually the quality. Was there a meaningful engagement, or was there a dialogue. And in this case the court found that that was not the case, and that it fell well short of the mark.

GREG WILPERT: Okay. Clayton, turning to you, how would the pipeline have affected Canada’s Indigenous populations, and what has been their reaction to the court’s decision?

CLAYTON THOMAS-MULLER: Well, first and foremost, I just want to say how much I raise my hands to social movements here in Canada. In particular, Indigenous social movements that have led to this incredible victory day that we experienced yesterday and that has spilled over into today. The, you know, many of us campaigners, allied campaigners, First Nations leaders and our supporters, expected some components of this court decision that would help our attempts to stop the TransMountain pipeline. But to have a court decision that lifted up all of the arguments that were presented through the legal strategy of our sophisticated, multipronged approach to the TransMountain campaign is elating.

You know, the fact of the matter is that if built, this pipeline would have had huge impacts on the orca population of the Coastal Salish Sea. It would have had huge impacts on the salmon population in the Coastal Salish Sea. You know, many Indigenous peoples, from Tsleil-Waututh, Squamish, and Musqueam Nations in the city of Vancouver, in the Inlet that surrounds the city of Vancouver, rely and have sacred relationships over millennia with the salmon. The salmon in many ways are the foundation of Indigenous nations there on the Pacific Northwest coast of British Columbia.

So you know, for this decision to drop at this moment, at a time when we saw one of the mothers from one of the local orca pods spend three weeks mourning the death of her orca baby- it was international headlines- you know, this tremendously impacted the psychology of local First Nations peoples, who have that relationship with the killer whales through their culture, have that relationship with the salmon, with killer whales, subsist off of- the people of First Nations living around the city of Vancouver, around Burrard Inlet, subsist off of. So you know, the impacts of this pipeline, if it was built, on this incredible, millennia-old culture would have been tremendous. And so the decision of the courts of Canada to reject the licenses for construction on Trans Mountain are huge in terms of preserving this sacred connection that Tsleil-Waututh, Squamish, Musqueam, and Indigenous Nations along the Pacific Northwest coast share with this fragile marine ecosystems.

GREG WILPERT: Eugene, in the introduction I mentioned that the court said that the National Energy Board did not take the increase in tanker traffic into account. I believe Clayton already addressed some of these points. But what is it, what else, or have anything to add about what the traffic, tanker traffic would have, what kinds of problems it would have caused that led to the court ruling against the project?

EUGENE KUNG: Sure. So I mean, just to be clear, the expansion project would have resulted in a sevenfold increase in oil tankers going through the Salish Sea through a couple of very tight narrows and challenging terrain. And so what the NEB actually agreed with and found, and Kinder Morgan admitted as much and had in their application, was that just the noise from those tankers alone would have a devastating impact on the southern resident orcas’ ability to hunt and to feed itself. Primarily salmon, sockeye salmon.

So that, that is a significant impact. And what the court found was not necessarily that the NEB didn’t look at it, but they didn’t look at it through the right lens. They played, they pulled a little bit of a legal sleight of hand. This is because under our previous government, under Stephen Harper, the environmental laws were gutted in Canada. And at the time that this project came to the National Energy Board, the National Board was actually tasked with doing their own National Energy Board review, regulatory review, but also the Canadian Environmental Assessment Review. And simply put, they were just not equipped to deal with that, and they tried, through their scoping of the review, to avoid dealing with the environmental assessment on marine shipping. Which meant that they were able to say, yeah, it’s true that this is going to have a significant adverse effect on the orcas, but not to do anything about it. And that’s where the court found that error. You know, they could have applied the Environmental Assessment Act, applied the Species at Risk Act. That would have caused, required plans to be made, mitigation to happen, probably changing the project in some way. But by avoiding that, that’s what the court said was an error.

And again, all of this because the significant increase in tanker traffic has a huge impact on the whales, regardless of whether there’s a spill. Obviously a spill would be a terrible thing for the whales, but even the sound of the tankers, you know, the collisions, potential collisions and so on, that’s what they found.

GREG WILPERT: Clayton, the other aspect that was neglected, according to the court, was to conduct consultations with affected populations. Who exactly should have been consulted? And if they had been consulted, what do you think these populations would have told the government?

CLAYTON THOMAS-MULLER: Look, here in Canada, the Indigenous peoples of this country, the First Nations peoples, are the third legal regime or jurisdiction of government here. You have the federal government, who presides over specific pieces of legislation and law. You have the provincial government. And then you have Indigenous law. And you know, our right to hunt, fish, and trap, our right to self-determination, self-governance, these pieces are represented by various aspects of the legal regime in our country, including Section 35 of the Canadian Constitution. The Federal Government of Canada is required by its own laws to consult and accommodate Indigenous peoples.

And you know, the bare minimum approach that the Justin Trudeau administration utilized after their election when making promises on the election trail to completely revamp the National Energy Board, an agency that has been fraught with controversy, that was ill-equipped to deal with the complex provisions around the government’s trust relationship with First Nations in this country to consult, you know, to accommodate, all led to this moment. And you know, the Trudeau government can blame the previous Harper administration as much as they want. In the end, Justin Trudeau made promises to First Nations peoples in B.C., as well as British Columbia, and citizens and Canadians overall that Canada was back on the international agenda as a climate leader. That they would hear the voices and concerns of First Nations over the orca, over the salmon, over the very real potential of a tanker running aground in the Burrard Inlet, and revise the rules of the National Energy Board, and they didn’t do it. They broke their promise.

And so, you know, here we are, in a situation where Indigenous peoples have come out on top, and where Justin Trudeau is scrambling to try and save his legacy at the end of his first term running the country of Canada. And so it’s going to be a really interesting election year 2019.

GREG WILPERT: Eugene, finally, I want to turn to precisely that issue, actually, that Clayton mentions, kind of the future. That is, what if the government now conducts an analysis, a more thorough analysis, and takes tanker traffic into account, and complies with the required consultations? Does this mean that the project could still go through? Or is it doomed completely now?

EUGENE KUNG: So the court has ordered the government to do exactly that. Send it back to the reviews, fix the errors, and do proper consultation. You know, having studied this project in depth for longer than I would love to like to admit, it’s my view that any proper consultation would result in a decision to reject the project if it looked at, really truly weighed the risks and the benefits, and didn’t take, you know, kind of these optimistic industry projections that will take us to a 6-degree world. In terms of the business case, if we looked at the respecting Indigenous decision making on this, I believe that a true consultation process would result in rejecting it.

I’ll say that just the time alone that these processes will take I think make this project doomed. It was already a challenge project. There’s a reason that Kinder Morgan walked away from it. And there’s a reason that they are laughing today, as they have, you know, approved this sale to Canada for essentially a lame duck project. And let’s not forget that when the project was first proposed in 2012, oil prices were well over 100 dollars a barrel. There was no Paris agreement. You know, in Canada the term or the concept of reconciliation was not a popular discourse. And so all those things are are different today. And I think, really, a sober second look at the project that was, if it was worth its salt, would actually reject it, because there are so many reasons that it’s a terrible project, some of which we’ve discussed today.

GREG WILPERT: OK. Well, we’re going to unfortunately have to leave it there for now, but we’ll definitely continue to follow the story if there are new developments. I was speaking to Eugene Kung, staff lawyer with the West Coast Environmental Law Organization in Vancouver. And with Clayton Thomas-Muller, member of the Mathias Colomb Cree Nation. Thanks, Eugene and Clayton, for having joined us today.

EUGENE KUNG: Thanks so much for having us.

GREG WILPERT: And thank you for joining The Real News Network.

Story Transcript

Welcome to The Real News Network. I’m Greg Wilpert, coming to you from Baltimore.Canada’s Federal Court of Appeal issued a major win for environmental Indigenous groups on Thursday when it rejected approval for the construction of the Kinder Morgan TransMountain pipeline. According to the ruling, the National Energy Board of Canada made a critical error when it supported the project; that is, the board did not consider the increase in tanker traffic off the coast of British Columbia that the pipeline’s expansion would cause. Also, the government did not adequately consult with Indigenous populations affected by the pipeline. The pipeline project involves expanding an existing 1150 kilometre pipeline to transport 900,000 barrels of oil per day from the Alberta tar sands to Canada’s West Coast. Prime Minister Justin Trudeau had approved the project in November 2016, but environmentalists and Canada’s Indigenous populations protested against the project continuously since then. Coincidentally, also on Thursday the shareholders of Kinder Morgan, the company responsible for the project, voted in favour of selling the pipeline to the Trudeau government.Joining me now to discuss the legal victory against the Kinder Morgan pipeline are Eugene Kung and Clayton Thomas-Muller. Eugene is a staff lawyer for the West Coast Environmental Law Organization in Vancouver. And Clayton is a member of the Mathias Colomb Cree Nation Canada, and a campaigner for 350.org. Thanks for joining us today, Eugene and Clayton.Thanks for having us.So let me start with you, Eugene. Give us an idea as to the significance of this victory. What does it mean for Canada and its environment?So this is a very significant decision that came yesterday, in part because of the project that it’s about, so the Trans Mountain pipeline, the Kinder Morgan pipeline that you mentioned. And it’s significant in that regard for a couple of reasons. First, construction, which they were preparing for, stops. It stops today. There is no underlying approval or certificate that can ground all the permits and so on to required for construction. It also is significant because I think the courts have really clarified, in terms of consultation with Indigenous peoples, that that has to be meaningful, and that it’s not- it can’t just be a procedural requirement. So it’s not about the quantity of meetings, but it’s actually the quality. Was there a meaningful engagement, or was there a dialogue. And in this case the court found that that was not the case, and that it fell well short of the mark.Okay. Clayton, turning to you, how would the pipeline have affected Canada’s Indigenous populations, and what has been their reaction to the court’s decision?Well, first and foremost, I just want to say how much I raise my hands to social movements here in Canada. In particular, Indigenous social movements that have led to this incredible victory day that we experienced yesterday and that has spilled over into today. The, you know, many of us campaigners, allied campaigners, First Nations leaders and our supporters, expected some components of this court decision that would help our attempts to stop the TransMountain pipeline. But to have a court decision that lifted up all of the arguments that were presented through the legal strategy of our sophisticated, multipronged approach to the TransMountain campaign is elating.You know, the fact of the matter is that if built, this pipeline would have had huge impacts on the orca population of the Coastal Salish Sea. It would have had huge impacts on the salmon population in the Coastal Salish Sea. You know, many Indigenous peoples, from Tsleil-Waututh, Squamish, and Musqueam Nations in the city of Vancouver, in the Inlet that surrounds the city of Vancouver, rely and have sacred relationships over millennia with the salmon. The salmon in many ways are the foundation of Indigenous nations there on the Pacific Northwest coast of British Columbia.So you know, for this decision to drop at this moment, at a time when we saw one of the mothers from one of the local orca pods spend three weeks mourning the death of her orca baby- it was international headlines- you know, this tremendously impacted the psychology of local First Nations peoples, who have that relationship with the killer whales through their culture, have that relationship with the salmon, with killer whales, subsist off of- the people of First Nations living around the city of Vancouver, around Burrard Inlet, subsist off of. So you know, the impacts of this pipeline, if it was built, on this incredible, millennia-old culture would have been tremendous. And so the decision of the courts of Canada to reject the licenses for construction on Trans Mountain are huge in terms of preserving this sacred connection that Tsleil-Waututh, Squamish, Musqueam, and Indigenous Nations along the Pacific Northwest coast share with this fragile marine ecosystems.Eugene, in the introduction I mentioned that the court said that the National Energy Board did not take the increase in tanker traffic into account. I believe Clayton already addressed some of these points. But what is it, what else, or have anything to add about what the traffic, tanker traffic would have, what kinds of problems it would have caused that led to the court ruling against the project?Sure. So I mean, just to be clear, the expansion project would have resulted in a sevenfold increase in oil tankers going through the Salish Sea through a couple of very tight narrows and challenging terrain. And so what the NEB actually agreed with and found, and Kinder Morgan admitted as much and had in their application, was that just the noise from those tankers alone would have a devastating impact on the southern resident orcas’ ability to hunt and to feed itself. Primarily salmon, sockeye salmon.So that, that is a significant impact. And what the court found was not necessarily that the NEB didn’t look at it, but they didn’t look at it through the right lens. They played, they pulled a little bit of a legal sleight of hand. This is because under our previous government, under Stephen Harper, the environmental laws were gutted in Canada. And at the time that this project came to the National Energy Board, the National Board was actually tasked with doing their own National Energy Board review, regulatory review, but also the Canadian Environmental Assessment Review. And simply put, they were just not equipped to deal with that, and they tried, through their scoping of the review, to avoid dealing with the environmental assessment on marine shipping. Which meant that they were able to say, yeah, it’s true that this is going to have a significant adverse effect on the orcas, but not to do anything about it. And that’s where the court found that error. You know, they could have applied the Environmental Assessment Act, applied the Species at Risk Act. That would have caused, required plans to be made, mitigation to happen, probably changing the project in some way. But by avoiding that, that’s what the court said was an error.And again, all of this because the significant increase in tanker traffic has a huge impact on the whales, regardless of whether there’s a spill. Obviously a spill would be a terrible thing for the whales, but even the sound of the tankers, you know, the collisions, potential collisions and so on, that’s what they found.Clayton, the other aspect that was neglected, according to the court, was to conduct consultations with affected populations. Who exactly should have been consulted? And if they had been consulted, what do you think these populations would have told the government?Look, here in Canada, the Indigenous peoples of this country, the First Nations peoples, are the third legal regime or jurisdiction of government here. You have the federal government, who presides over specific pieces of legislation and law. You have the provincial government. And then you have Indigenous law. And you know, our right to hunt, fish, and trap, our right to self-determination, self-governance, these pieces are represented by various aspects of the legal regime in our country, including Section 35 of the Canadian Constitution. The Federal Government of Canada is required by its own laws to consult and accommodate Indigenous peoples.And you know, the bare minimum approach that the Justin Trudeau administration utilized after their election when making promises on the election trail to completely revamp the National Energy Board, an agency that has been fraught with controversy, that was ill-equipped to deal with the complex provisions around the government’s trust relationship with First Nations in this country to consult, you know, to accommodate, all led to this moment. And you know, the Trudeau government can blame the previous Harper administration as much as they want. In the end, Justin Trudeau made promises to First Nations peoples in B.C., as well as British Columbia, and citizens and Canadians overall that Canada was back on the international agenda as a climate leader. That they would hear the voices and concerns of First Nations over the orca, over the salmon, over the very real potential of a tanker running aground in the Burrard Inlet, and revise the rules of the National Energy Board, and they didn’t do it. They broke their promise.And so, you know, here we are, in a situation where Indigenous peoples have come out on top, and where Justin Trudeau is scrambling to try and save his legacy at the end of his first term running the country of Canada. And so it’s going to be a really interesting election year 2019.Eugene, finally, I want to turn to precisely that issue, actually, that Clayton mentions, kind of the future. That is, what if the government now conducts an analysis, a more thorough analysis, and takes tanker traffic into account, and complies with the required consultations? Does this mean that the project could still go through? Or is it doomed completely now?So the court has ordered the government to do exactly that. Send it back to the reviews, fix the errors, and do proper consultation. You know, having studied this project in depth for longer than I would love to like to admit, it’s my view that any proper consultation would result in a decision to reject the project if it looked at, really truly weighed the risks and the benefits, and didn’t take, you know, kind of these optimistic industry projections that will take us to a 6-degree world. In terms of the business case, if we looked at the respecting Indigenous decision making on this, I believe that a true consultation process would result in rejecting it.I’ll say that just the time alone that these processes will take I think make this project doomed. It was already a challenge project. There’s a reason that Kinder Morgan walked away from it. And there’s a reason that they are laughing today, as they have, you know, approved this sale to Canada for essentially a lame duck project. And let’s not forget that when the project was first proposed in 2012, oil prices were well over 100 dollars a barrel. There was no Paris agreement. You know, in Canada the term or the concept of reconciliation was not a popular discourse. And so all those things are are different today. And I think, really, a sober second look at the project that was, if it was worth its salt, would actually reject it, because there are so many reasons that it’s a terrible project, some of which we’ve discussed today.OK. Well, we’re going to unfortunately have to leave it there for now, but we’ll definitely continue to follow the story if there are new developments. I was speaking to Eugene Kung, staff lawyer with the West Coast Environmental Law Organization in Vancouver. And with Clayton Thomas-Muller, member of the Mathias Colomb Cree Nation. Thanks, Eugene and Clayton, for having joined us today.Thanks so much for having us.And thank you for joining The Real News Network.