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True Patriot Love: Why the Kinder Morgan pipeline will never be built

The Common Sense Canadian by Rafe Mair / June 19, 2017

“The Trans Mountain pipeline [Kinder Morgan] expansion project will never see the light of day.” -Grand Chief Philip Stewart, Union of B.C. Indian Chiefs

If you live anywhere in Canada other than British Columbia, you’re probably convinced that the Kinder Morgan (Trans Mountain) pipeline from Edmonton to Burnaby, BC will be built, since no less than Prime Minister Trudeau says so. Well, you may get a shock with this candid advice but you’d best accept the fact that this pipeline will never, ever be built, period.

Many much wiser and more powerful British Columbians than I will tell you the same in even stronger terms.

In light of the domination of the mainstream media by the oil industry, with dedicated lackeys running our governments, you may not have heard the British Columbia side of this story. Here it is.

Might my story not be biased? Of course that conclusion’s an option since there is no more loyal British Columbian than I, but remember that we who will fight Kinder Morgan have only one interest: the beautiful land and water we hold in trust for those as yet unborn. We have no Tar Sands to flog, no political payoffs owed, no juicy House of Commons seats to covet, no faraway investors to enrich, no personal ambitions to fulfill, no face saving to be done – all that’s at stake for us is the salvation and preservation of our home.

Energy expert quit “fraudulent” review

Let’s start with the proposition that the product of the tar sands in Alberta is viciously poisonous, whether spilt on land, in the ocean, or put into the atmosphere. To talk of “world class cleanup” methods for bitumen (dilbit) is a cruel oxymoron. To pretend that massive accidents – carefully called “incidents” – are minor risks insults the intelligence.

 

Former BC Hydro CEO Marc Eliesen at National Energy Board hearing before withdrawing

The pious suggestion by government and industry that the undertaking underwent a “rigorous scientific investigation” is pure bullshit! It underwent (if that’s the word), a disgraceful National Energy Board hearing, the process Trudeau ran against in 2015 and, for fairness, was on a par with Soviet Union show trials. A process so egregiously biased that Marc Eliesen (former CEO of B.C. Hydro, former chair of Ontario Hydro, former chair of Manitoba Hydro, deputy minister in seven different federal and provincial governments, with 40 years’ executive experience in the energy sector, including as a board member at Suncor) withdrew as an intervenor, calling the proceedings “fraudulent”. So much for the “rigorous scientific examination” that Prime Minister Trudeau and Kinder Morgan tell British Columbians to rely upon for the security of Burrard Inlet, Vancouver Harbour, the Salish Sea, the Gulf Islands, the Straits of Juan de Fuca and the rest of our pristine coast.

Trudeau breaks promise to the world

Justin Trudeau has made big promises on the world stage (Flickr / World Economic Forum)

Let’s also remember that Prime Minister Trudeau made himself an international hero of the environment by stating clearly, beyond a doubt, at the Paris conference in November 2015, that fossil fuels must be phased out and that Canada was back in the game and raring to go. The principal concern was and remains climate change, he noted, and Canada would enthusiastically resist putting more fossil fuels into the atmosphere – in fact would both reduce them substantially and help other countries do the same.

Not unnaturally, people in British Columbia, concerned about their own environment as well as that of the world in general, were relieved at this unwonted leadership. The newly elected Prime Minister was seen in a new light as a forthright, dedicated environmentalist and not the weak dissembler we originally took him for. Sometimes, alas here, one is right the first time.

What pipeline boosters don’t get

A BC sockeye salmon spawning (Stan Probocsz/Watershed Watch)

Our main environmental concern – and it is huge – involves our rivers and oceans, over which we have control. Of particular interest but of no apparent concern to Trudeau and other Canadians, are the creatures that live in those waters.

This special and growing concern isn’t, for us, some abstract “Free Willy” reverie but a critically important reality that has never been understood by the federal Liberal party, as evidenced by their ongoing ill-treatment of the Pacific fishery from Confederation until today, when, in addition to the usual neglect, the Pacific salmon is being diseased and killed by federally-sponsored and approved, foreign-owned Atlantic salmon fish farms.

Our 5 commercial species of salmon are extremely important as a basic food for First Nations, as well as critical to their economy and to other important commercial and sports fisheries. Most Canadians to our east don’t seem to understand how strongly we feel about these issues nor have any appreciation of our values.

The Federal government, in Wilde’s words, “knows the cost of everything and the value of nothing”. To British Columbians, the sacred symbol of our province is the Pacific Salmon, all 7 discrete varieties.

Respect for First Nations

Grand Chief Stewart Phillip (Image: Damien Gillis)

This leads us to First Nations, both in terms of individual tribes and united peoples, not only in British Columbia but right across the country. I have don’t know how other Canadians feel on this issue, however, there’s solidarity of the general British Columbia community behind First Nations, who’ve been leaders in environmental protection for far longer than most of us care to admit.

Stewart Philip, Grand Chief of the British Columbia Union of Indian Chiefs, is very highly regarded, not just as an Indigenous leader, but as a general community leader as well. He is hardly alone as he shares this respect with numerous aboriginal leaders of both sexes. If that basic reality is not understood, the BC position can’t be understood either.

Are British Columbians bad Canadians?

British Columbians are being painted as “bad Canadians”. As a lifelong (85 years) British Columbian, I tell you that BC is different, even though most outsiders prefer to see it as part of “the West” – shorthand that does no service to other western provinces any more than it does to BC.

British Columbia is unique geographically, historically, demographically, in terms of resources – with a very strong sense of that uniqueness and the set of values it produces. Not that we haven’t had some very careless times when it seemed that there was always another valley to log and river to destroy.

In 1993, the forces for change coalesced at Clayoquot Sound on the west coast of Vancouver Island, remembered by esteemed journalist, Stephen Hume:

People came from all over the country and beyond. Teachers, artists, musicians, university students and their professors, working folk, soccer moms, dentists, doctors and First Nations elders descended on the West Coast to put a stop to clearcutting by blockading a road. What followed was the largest mass arrest for civil disobedience in the province’s history.

There was no turning back. Was it a collective, troubled conscience that just required some youthful idealism and energy? Whatever it was, it took hold deeply and quickly.  Suddenly it wasn’t “tree-huggers” who were the unfashionable outsiders, it was the people calling them “tree huggers” – the elite suddenly, badly reduced in numbers and importance.

The genie was well and truly out of the bottle. No one believed industry leaders and supportive politicians anymore and just a moment’s reflection made it clear that based on their track record, they weren’t entitled to credibility. Things the long haired pot smokers had predicted had come true. Perhaps the very late realization that solemn, science-backed assurances that smoke from burnt coal “just went up there” was not just bullshit, but deliberate bullshit; the black crud London was removing from the Houses of Parliament had caked their lungs; and all those doctors smoking Camels were trying to quit.

In any event, fewer and fewer British Columbians believe what Trudeau, his National Energy Board, raw, uncaring political hacks such as Ministers of Environment or anyone connected with Kinder Morgan, the tanker companies who serve them or trained, clapping seals at Chambers of Commerce have to say. Time after time, they had been proven wrong, over and over the public saw that safety measures had to be compelled and that truths that diminished profits were hidden. Clearly, profits trumped all.

We’re not going anywhere

Rachel Notley (Photo: Flickr / Premier of Alberta CC License)

Hence, there’s no way British Columbia will obey Trudeau except by actual force and if that’s applied, the damage done to national unity will be irreparable. We’re told that Trudeau and Premier Notley of Alberta have the law on their side. I wish those who think that would pour themselves a glass of relaxant and think about it awhile.

It’s an exhausting subject, but ask yourself if the top court in the nation will put monetary profits from the world’s worst polluter in one province ahead of the natural and clean resources of a neighbour, causing enormous harm to both that neighbour and to others while at the same time further ruining the badly polluted global atmosphere Trudeau promised to make better? In the name of God, is that the essence of this country that dares preach to us about principles? Profit, however destructive, trumps all!

A whole new ballgame

Has the hubris of self-serving hymns of praise so dulled the national brain that no one has noticed an army of First Nations going to the Court of Appeal, thence to the Supreme Court? Have our “betters” not yet noticed that since the Calder case, then the 1982 Constitution, the entrenching of aboriginal rights and that aboriginal rights are, in the vernacular, “a whole new ballgame”, as summed up thusly by the Canadian Encyclopedia?

Aboriginal rights, like treaty rights, are recognized and affirmed by Section 35 of the Constitution Act, 1982. The Supreme Court of Canada has held that this provision protects a spectrum of different kinds of rights, including legal recognition of customary practices such as marriage and adoption, the site-specific exercise of food harvesting and other rights that don’t involve claims to the land itself, and assertions of an Aboriginal title to traditional lands.

At this writing, there are at least a dozen discrete First Nations challenging Kinder Morgan, each of which will presumably go to the Court of Appeal thence to the SCC. There seems little likelihood many, if any, have sufficient in common to be united for trial. Given that none of the First Nations have a sense of urgency, how long do you think these cases will take? How long will Kinder Morgan have to be promising investors “soon”?

Only then will the workers on the pipeline finally be able to trot out their first front-end loader to be met by repetitive Civil Disobedience by ordinary folks, with associated court actions sending our friends and neighbours to jail for contempt of court, as happened in Burnaby in 2014. For what little it might matter, every ounce of my aged being, including freedom, will be with the protesters in the fight for justice for all British Columbians.

Defiant indeed

I recognize that many will take what I have written as defiant threatening. It is defiant because, I believe, that word accurately sums up the attitude of me and my neighbours. It’s not written to threaten but to lay before you my judgment of what will happen if matters continue as they are and beg you to understand us if you can’t lend us your support.

This evil project has, most unhelpfully, sharpened the divisions in Canada – but one can hardly blame British Columbians for that when their sole purpose has been not to make money, not to visit harm on anyone or anything, but simply to support the highest scientific and moral principles as we protect ourselves and the world’s atmosphere. I have much difficulty seeing how such defensive conduct could ever be seen as bad Canadianism.

 

A revitalized How Sound is once again at risk (Photo: Future of Howe Sound Society)

Who of you, living as I do on Howe Sound, would sacrifice the killer whales, humpback whales, seals, sea lions, porpoises, dolphins, crab, shrimp, oysters, clams, abalone, salmon runs, herring runs and other sea life and bird life that thrive there in order that elements of certain destruction would cause serious harm to them, to say nothing of human beings, whilst being transferred elsewhere to do harm to everyone?

I should tell you that we speak from graphic experience. We once lost a good deal of all this due to industrial pollution but after the mill shut down in Squamish and Britannia Mine closed in 1974, people of the area and the government thoroughly cleaned up Howe Sound and it came back to life. If the people didn’t deeply care for these values, however esoteric they may appear to others, they would scarcely have gone to all that trouble and spent all that money, much of it private, to clean up Canada’s southernmost fjord, nor be so prepared to fight hard to see that it stays that way.

No longer Left v. Right

The environment is no longer a left v. right political proposition in British Columbia but a mainstream issue of vital importance to everyone. People have all learned that when industry or government talks of safety and respect for the environment, the truth is not in them and that citizens and they alone must protect it.

It has not been my purpose, by being frank with you, to make you angry or get your backs up – I simply want the rest of Canada to know that our basic values are being challenged by Kinder Morgan, the province of Alberta, and the Government of Canada and that doing so is not a good idea. Since this entire coast, right to the Alaska Panhandle, is under threat and it is the Canadian West Coast, it puzzles most British Columbians why Canadians generally do not want to protect it just as we do, if not as strongly.

If, as it appears, they do not wish to do this, I must tell them frankly that we who live here will do it for them, irrespective of who wants to spoil it. Yes, we respect the rights of Alberta, but we must accept what wise people know will be certain and serious damage to the natural beauty and resources that we intend to protect, not only on our own behalf but for the entire country.

One cannot serve the God Mammon by sacrificing one’s common heritage on his altar and still retain one’s soul. And isn’t this very wise question posed so very long ago even more appropriate than ever?  “For what shall it profit a man, if he gain the whole world, and suffer the loss of his soul?”

And if that answer doesn’t suit those who would make money with someone else running all the risks – not risks but certain calamities – how about this?

Don’t go away mad – just go away.

See article here…….


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Lawsuits and land rights: Next B.C. government has its hands full with First Nations

Indigenous candidates, activists and experts weigh in on what next week’s provincial election could mean for resource development in B.C.

Discourse by Trevor Jang | May 6, 2017

Kanahus Manuel stands beside the vast North Thompson River on the industrial outskirts of Kamloops, B.C., a sacred spot for the Secwepemc people. If all goes according to plan, Kinder Morgan, the largest energy infrastructure company in North America, will begin drilling beneath the river later this year as part of its Trans Mountain Expansion Project.

But Manuel wants to get in the company’s way.

An Indigenous rights activist, she’s leading a group of grassroots Secwepemc people who are planning to re-establish traditional villages by building 10 small homes along the route. “What we want to really establish is challenging the provincial jurisdiction over our territory by living and occupying on our land,” Manuel tells me. “The province does not have the title to issue permits to even give Kinder Morgan the [permission] to do that.”

Indigenous rights activist Kanahus Manuel speaks at a gathering of land defenders from across B.C. They’re strategizing their efforts to block construction of resource development projects by occupying camps on traditional territories. Lindsay Sample
Indigenous rights activist Kanahus Manuel speaks at a gathering of land defenders from across B.C. They’re strategizing their efforts to block construction of resource development projects by occupying camps on traditional territories.

The B.C. government approved Kinder Morgan’s $7.4-billion proposal in January after the federal government gave its approval last November. But Manuel firmly believes that final permission for this pipeline route, which stretches from Edmonton to Burnaby, can only be given by the Secwepemc people and other First Nations.

Jurisdiction over Indigenous territory is a complex issue, and next week’s B.C. election will have big implications for how it’s interpreted — and given legal force — in the province. Both the B.C. NDP and Green Party promise to endorse the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which calls for governments to achieve the free, prior and informed consent of Indigenous people before moving forward with resource development projects on their traditional territories.

This would be good news for land-rights activists and environmentalists who want to see energy projects like Kinder Morgan’s live or die by the say of First Nations. But there are concerns, among developers and community members eager for jobs, that giving Indigenous communities more power would stall projects.

Prime Minister Justin Trudeau’s Liberal government campaigned on a promise to endorse UNDRIP at the federal level. After being in office, federal Justice Minister Jody Wilson-Raybould told a crowd of First Nations leaders in July 2016 that inserting UNDRIP into Canadian law was “unworkable.” At the time, Canada had endorsed the declaration, but opposed the wording of free, prior and informed consent. The Liberals also sparked tensions by approving mega-projects without the consent of some First Nations who were impacted.

“There’s some really good agreements being worked out. Most First Nations, all they want to be is included, and that’s happening in the northwest.”

Ottawa’s tone changed last month, however, when Indigenous and Northern Affairs Minister Carolyn Bennett officially retracted Canada’s objections. “We will amend laws written in a paternalistic and colonial way, and implement direction given to all ministers in [Trudeau’s] cabinet,” she declared at the U.N. Permanent Forum on Indigenous Issues in New York.

Bennett’s statement came in the midst of election season in B.C. — a province where lawsuits over First Nations’ land rights are often the final roadblock to getting resource development projects off the ground. How major resource development projects get approved — or denied — by Indigenous people could completely change, depending on which party forms the next government in Victoria.

Is the NDP’s promise realistic?

Earlier this week, a group of First Nations leaders launched an “Anyone But Clark” campaign targeting sitting Liberal Party Premier Christy Clark. They’re disappointed with Clark’s push on major resource projects — like the Site C dam, numerous proposed liquefied natural gas (LNG) projects and Kinder Morgan’s Trans Mountain pipeline expansion — all of which face some opposition from First Nations whose territories these projects impact.

The BC Liberals, while claiming to be committed to “concrete measures to achieve reconciliation,” have danced around endorsing UNDRIP or using the word “consent” in their party platform.

“The legal standards of approval for large-scale resource development projects [have] elevated to the level of consent. We’ve moved beyond the need for mere consultation, and yet the provincial government under Premier Clark is refusing to acknowledge that reality,” says Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs.

Some Indigenous leaders and professionals believe the Liberals aren’t necessarily trying to dodge reconciliation commitments.

“I think that they bring that little bit of real-world perspective on how difficult it is to implement something as all-encompassing and broad and inspirational as UNDRIP is,” says Sarah Robinson, who hails from the Fort Nelson First Nation in northeastern B.C. and is head of Rainwatch Consulting, which provides governance planning and advice to First Nations. “Having worked in government myself, it is much easier to say than to do.”

Robinson tells me it’s “certainly admirable” that the NDP have promised to fully endorse UNDRIP, but it’s not realistic in a four-year term. “I find that they often take about 10 to 20 years to catch up when significant court decisions come down, or significant approaches are put together to support things like UNDRIP,” she adds.

Ellis Ross, Liberal candidate for Skeena and former Haisla Nation chief, says the U.N. Declaration on the Rights of Indigenous Peoples is a “distraction” from the partnerships already taking place between First Nations, government and industry. Ellis Ross

Ellis Ross, Liberal candidate for Skeena and former Haisla Nation chief, says the U.N. Declaration on the Rights of Indigenous Peoples is a “distraction” from the partnerships already taking place between First Nations, government and industry.

One of the Liberals’ most high-profile Indigenous candidates, Ellis Ross, who’s running in the Skeena riding, calls UNDRIP a “distraction” from the partnership that First Nations already have with government and industry. “There’s some really good agreements being worked out. Most First Nations — all they want to be is included, and that’s happening in the northwest,” says Ross, former chief of the Haisla Nation and an outspoken champion of the LNG industry.

“To bring up something external to Canada like [UNDRIP], I mean you’re talking about negotiations, you’re talking about changing legislation, you’re talking about the existing case law,” he tells me. “That doesn’t really help anybody on the ground. The people on the ground, the average citizen, all they want to see is: ‘Do we have a strong economy? Do we have enough revenue coming in to pay for services?’”

What about the Liberals’ promises?

The BC Liberals say they’re proud of the relationships they’ve built with First Nations, and point to the nearly 400 economic agreements they’ve signed with Indigenous communities since 2013 — many linked to participation in the LNG industry. This approach aligned with Ross’ goals when he represented the Haisla in Kitamaat, where three LNG terminals are currently being proposed. “From what I’ve seen, government in our territory has done a good job over the years,” he tells me.

Wanda Good, Liberal candidate for Stikine and deputy chief councillor of the Gitanyow, says the road to reconciliation is complex and that the meaning of free, prior and informed consent should be debated. Wanda Good
Wanda Good, Liberal candidate for Stikine and deputy chief councillor of the Gitanyow, says the road to reconciliation is complex and that the meaning of free, prior and informed consent should be debated.

But the promise of a lucrative LNG industry that Clark campaigned on in 2013 has yet to materialize, with no final investment decisions made from proponents of any of the projects. Meanwhile, many First Nations communities that signed agreements with Clark’s government have been divided over what some are calling a flawed process.

That’s put another Indigenous candidate for the Liberals in a tricky spot.

Wanda Good is running in the Stikine riding, and is deputy chief councillor of the Gitanyow. The Gitanyow are one of a handful of First Nations to file a lawsuit over the federal government’s approval of the Pacific Northwest LNG terminal proposed for Lelu Island on the north coast, just south of Prince Rupert — a project heavily supported by Clark.

“I can’t really comment,” Good says of the court case. What she does tell me is that there are First Nations in her riding who have signed LNG agreements. “There are 63 First Nations across the province that have signed onto pipeline agreements, so there is open discussion in the riding, and I will commit to being involved in those discussions.”

Those agreements don’t necessarily mean there was free, prior and informed consent, nor adequate consultation, argues Anne Marie Sam, a councillor for the Nak’azdli Whut’en near Fort St. James and an NDP candidate for Nechako Lakes. “We had to go to court to get the government to come to the table,” she tells me. “It’s not out of the goodness of the Liberals’  heart that they thought, ‘Okay, let’s work with First Nations.’ It was First Nations having to challenge them in court.”

Anne Marie Sam, NDP candidate for Nechako Lakes, stands with party leader John Horgan. Sam is a councillor for the Nak'azdli Whut'en, and wants to see a new regulatory process for energy projects in B.C. that enables First Nations to provide their consent. Anne Marie Sam
Anne Marie Sam, NDP candidate for Nechako Lakes, stands with party leader John Horgan. Sam is a councillor for the Nak’azdli Whut’en, and wants to see a new regulatory process for energy projects in B.C. that enables First Nations to provide their consent.

Nak’azdli Whut’en did sign a benefit agreement with the Liberal government in relation to the proposed Pacific Trails Pipeline, but Sam says the community felt pressured by the process, and signed out of a fear of missing out — not because they felt they had any say. “I felt with LNG, we were being asked to sign here and accept this project without knowing all the details.”

She adds, “I think you have to step back and see what is the best way to do this and what is the best consultation. And if communities are not wanting it, how do we respect communities that say this isn’t what we want?”

The government and First Nations have to share the land

Darwin Hanna is a B.C.-based Indigenous lawyer with expertise in land claims, self-governance and business law. He says provincial governments legally could implement UNDRIP — it just requires the political will to do so. “Right now, we know that the provincial legislation does not fully endorse UNDRIP, so that’s the challenge,” he says. The main concern, says Hanna, is “having arrangements to recognize co-jurisdiction between the province and First Nations.”

That unresolved challenge of jurisdiction is at the root of the conflict brewing in Secwepemc territory, where Kanahus Manuel and others are preparing for a long battle to stop the Trans Mountain Expansion Project. The oil pipeline is also facing numerous lawsuits from First Nations claiming they weren’t properly consulted. Manuel says she’s not waiting for a judge to confirm what she already knows, nor is she holding her breath for the next provincial government to endorse UNDRIP.

“Native people just have to go out and assert it,” she tells me passionately. “And that’s where we’re at right now — is asserting all of our rights and titles that’s recognized in all of these Supreme Court cases.”

Manuel isn’t alone in her approach. In March, she joined land defenders from all over B.C. who gathered in Vancouver to strategize, fundraise and share their experiences resisting projects on their territories. Members of the Gitwilgyots tribe have occupied Lelu Island in protest of the Pacific Northwest LNG project since August 2015. Members of the Gitxsan Nation have occupied the Madii Lii camp, blocking the path of the Prince Rupert Gas Transmission Line, which would transport natural gas to Lelu Island. And the Unist’ot’en camp is blocking several natural-gas pipeline routes in Wet’suwet’en territory.
“But if you fuck with us … we’re going to lay down the law. We’re going down to lay down our law.”

Meanwhile, in B.C.’s Lower Mainland, members of the Kwantlen First Nation are preparing to build longhouses in the path of the Trans Mountain Expansion Project. “There are two MLAs who are key figures in the provincial government that are in our territory, [Minister of Natural Gas Development] Rich Coleman and [Environment Minister] Mary Polak,” Kwantlen member Brandon Gabriel tells me. “They try to paint this picture that we are consenting, that we are friendly. And if you’ve ever been to Kwantlen, we are friendly. But if you fuck with us … we’re going to lay down the law. We’re going down to lay down our law.”

The message is clear: The issue of jurisdiction isn’t going away for the next B.C. government — no matter which party wins. Rainwatch Consulting’s Sarah Robinson has some free consulting advice for whoever is B.C.’s premier on May 9.

“If a protest camp or blockade of some kind is taking place over a large resource development project, in my personal opinion, sending public servants or representatives from the company to do the negotiating is almost setting yourself up for failure,” she tells me. “It’s certainly worthwhile for the leader of that political party to consider heading down there themselves to begin dialogue and communicate respectfully that they are there in the spirit of honouring that nation-to-nation relationship.”

See article here…..


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A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & amp; Tankers Project June 2017

A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project

Kinder Morgan Trans Mountain project, BC Government
Author(s):

Jessica Clogg, Eugene Kung, Gavin Smith, Andrew Gage

Summary:

The historic NDP/Green alliance in British Columbia has committed to “Immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the transportation of raw bitumen through our province.”

In light of this commitment, many people have been asking: “What can BC do about Kinder Morgan?”

In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?” Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”

This brief outlines concrete legal options that a new government could use with respect to Kinder Morgan’s Trans Mountain pipeline and tankers project.

Publication Date:

June 2017

Full text:
 A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project
The historic NDP/Green alliance in British Columbia, which is poised to form BC’s next provincial
government, has committed to:
Immediately employ every tool available to the new government to stop the expansion of
the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the
transportation of raw bitumen through our province.
In light of this commitment, many people have been asking: “What can BC do about Kinder
Morgan?”
This question raises important issues that in many ways eclipse a single pipeline and tanker
project: global climate change, Indigenous rights and reconciliation, and Canadian federalism, to
name a few.
In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?”
Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”
This brief outlines concrete legal options that a new government could use with respect to Kinder
Morgan’s Trans Mountain pipeline and tankers project. It is not a laundry list – while there are
many tools available, we have focused here on what we believe are the best tools that are:
a) available immediately; and
b) in our view the most likely to withstand legal and political challenges.
2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus, at 2.c.
Photo: BC NDP
LEGAL BACKGROUND
1) The Province of British Columbia has the constitutional authority to:
• conduct its own studies and assessment(s) of projects like the Trans Mountain pipeline
and tankers project, even if the process requirements imposed have the potential to
result in a “no”; and,
• attach conditions related to areas of provincial authority that go beyond those imposed
by the federal government in its approval of the project.
2
2) The Province of British Columbia also has a constitutional and moral obligation to fulfill its
duties to consult and accommodate potentially affected First Nations before issuing provincial
approvals and permits required for the Trans Mountain project.
3
3) Furthermore, the Province of British Columbia: (i) cannot authorize an unjustifiable
infringement of Aboriginal title or rights; and (ii) must, where a claim is particularly strong take
steps to preserve the underlying Aboriginal interest pending final resolution of the claim.
• In this context, proceeding with the BC approval – which was granted in January 2017 –
could make BC vulnerable to further legal challenges.
4) The Province can set aside existing provincial approvals and prohibit future provincial approvals
until additional process steps and/or conditions – related to areas of provincial authority – are
fulfilled. Such legal steps can, in our opinion, be taken without offending constitutional provisions
related to the division of powers between the federal and provincial governments.
• This is particularly relevant because of the high-profile problems with the federal
National Energy Board (NEB) process, and the federal Crown’s failure to meet its
constitutional duties to First Nations, as set out in 10 legal challenges brought by First
Nations to the federal approval and NEB recommendation.
5) An outright final rejection or prohibition of the Trans Mountain project by the provincial
government could result in a legal challenge by the federal government on division of powers
grounds,
which would then take many years to resolve in the courts.
• However, we note that if multiple legal challenges
to the federal approval of the Trans Mountain project by First Nations and others are successful in setting the federal
approval aside, then the operational conflict between the federal and provincial decisions
would be removed. This would eliminate one basis for a potential legal challenge by the
federal government.
• The potential of a future legal challenge, which may not occur, should not discourage BC
from taking principled steps to safeguard matters squarely within provincial jurisdiction
(such as drinking water, health and safety, provincial lands and resources etc.), and to
meet its own constitutional duties to First Nations.
Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 at paras 51-56, 71-74.
In R v. Sparrow [1990] 1 SCR 1075, the Supreme Court of Canada recognized that section 35 is a limit on both federal and provincial
powers. More recently, Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 SCR 447 and
Coastal First Nations, supra have confirmed that a province must satisfy the duty to consult First Nations.
See Tsilhqot’in v. British Columbia, 2014 SCC 44 at para 91.
See:
See e.g., Canadian Western Bank v. Alberta, 2007 SCC 22;
British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R.86, 2007 SCC 23, Coastal First Nations, supra.
See:
LEGAL TOOLBOX
The provincial government has the authority and obligation to meet its duties to First Nations,
and to protect the interests of British Columbians from this risky project. Below we have set out
four high-potential legal approaches for doing so. They are not mutually exclusive and in some
cases may be mutually enforcing.
Regardless of which legal approach is used, we recommend that the provincial government:
a) Add further processes and conditions related to matters within provincial jurisdiction;
b) Prohibit the issuance of any provincial approvals or permits to Trans Mountain, and
include a provision that any such approvals (i.e., that may have already been issued) are
without effect until the processes and conditions have been satisfied; and,
c) Establish a requirement, with reference to the United Nations Declaration on the Rights
of Indigenous Peoples, that the proponent demonstrate to the Province’s satisfaction
that every First Nation whose territory is potentially impacted by the Trans Mountain
project, including by the risks of spills or malfunctions from either pipelines or tankers,
has provided its free, prior and informed consent for the project (FPIC).
Approach 1:
Cabinet order under section 7 of the Environment and Land Use Act encompassing points a-c above Section 7 of the
Environment and Land Use Act empowers Cabinet to make any order considered “necessary or advisable respecting the environment or land use.” Such an order applies despite any other Act, and a Minister, ministry or agent of the Crown specified in the order may not exercise its power under any other Act or regulation except in accordance with the order.
• Action: Make a Cabinet order establishing additional conditions and processes, beyond
those currently set out in Trans Mountain’s environmental assessment certificate, which
must be satisfied before relevant provincial permits can be granted.
• Effect: This approach does not depend on overturning the existing environmental
assessment certificate per se, but could suspend it until further conditions are met
and processes occur. A condition requiring FPIC from potentially impacted nations
is particularly relevant, as it aligns with commitments also made by the federal
government.
Approach 2:
Court order setting aside the provincial environmental assessment certificate
This approach would involve reviewing the current legal challenges to BC’s Trans Mountain
approval, and issuing new instructions to Crown counsel, on the basis that the former government
did not meet its constitutional duty to consult and accommodate, cannot justify potential
infringements of Aboriginal title and rights from the project, and must take steps to preserve
underlying Aboriginal interests while claims are resolved.
• Action: Instruct counsel for British Columbia in Squamish Nation v British Columbia
(Minister of Environment) to review the application filed and relief sought by the
Squamish Nation, in light of the position of the new government. If the Province of
BC concludes that the previous government did not fulfill its constitutional duties,
then consider seeking a court order based on points of agreement with the Squamish
Nation. Relief sought by Squamish includes overturning the provincial environmental
assessment certificate on the basis that the Province did not meet its duty to consult and
accommodate, and prohibiting further permitting or approvals until the duty is met.
• Effect: Trans Mountain would likely oppose such an order, potentially requiring the
parties to present arguments to a judge before a decision is made. However, given that
consultation and accommodation is an issue between the Crown and First Nations, if
the provincial Crown and the Squamish Nation agree that the environmental assessment
certificate should be set aside, this would provide a highly compelling basis for the Court
to make such an order.
This option has the potential to judicially set aside Trans Mountain’s existing provincial approval,
and could result in a judicial prohibition on issuance of further provincial permits or approvals.
Even if pursuing this option does not immediately overturn the Trans Mountain approval (because
the court wishes to hear argument from Trans Mountain first), it would swiftly signal the new
government’s intention to take seriously the provincial Crown’s constitutional obligations to First
Nations impacted by the project.
In our view, this would greatly increase the likelihood that the environmental assessment
certificate would be set aside by the Court following argument. This approach would open up
opportunities for BC to engage meaningfully with First Nations, undertake additional review
processes and make a new decision on the environmental assessment certificate with additional conditions, if required.
Approach 3:
Order under section 31 of the BC Environmental Assessment Act to vary provisions of the Act as they apply to the Trans Mountain project.  This approach would involve using an existing variation provision in the Environmental Assessment
Act.
to enable changes to Trans Mountain’s environmental assessment certificate by order.
• Action: Make an order under section 31 of the
Environmental Assessment Act, which allows the Minister to order a variation of one or more provisions of the
Environmental Assessment Act or its regulations “in respect of a specified reviewable project” if “there
is or will be an emergency or other circumstance that warrants or will warrant the variation” and “the variation is in the public interest.”
8
Supreme Court of British Columbia Registry Number S-173649.
• Effect: There are a number of different ways this provision could be employed. For
example, the Minister could order a variation of section 37(2) of the Act, which could
broaden the scope of reasons for which the Minister may (by order) amend, suspend
or cancel the Trans Mountain environmental assessment certificate. This would, for
instance, enable the Minister to make further orders adding conditions to the Trans
Mountain certificate as per points a-c above (or even suspending or canceling the
certificate). As another example, the Minister could order a variation of sections 18
and 37 of the Act to enable the Minister to order that the certificate be amended to
significantly shorten its expiry date. Such orders could be made under the existing
Environmental Assessment Act without the need to introduce legislation.
Approach 4:
After existing permits have been altered, suspended or expired, collaboratively develop the
details of further processes and conditions that must be met before provincial permits can be
granted to Trans Mountain
• Existing assessment and review processes in BC are not up to the task of fully assessing
potential impacts on areas of provincial concern from the Trans Mountain project, nor
can they ensure that the Crown’s duties to First Nations met. Both the NDP and Green
Party have recognized the deficiencies in the current BC environmental assessment
(EA) process and have pledged to fix them. New legislation will ultimately be required
to ensure that things are done right in reviewing not just the Trans Mountain project
but future proposed developments. A new BC environmental assessment of the Trans
Mountain project, if required, should ideally occur under the revitalized EA process,
following the enactment of new EA legislation.
• Impacts on health, safety and drinking water have not been fully assessed in relation
to the Trans Mountain project to date. To do so, one option would be to pass a law
requiring an additional in-depth process reviewing impacts of the Kinder Morgan project
on community health and safety before any relevant provincial permits can be granted.
This approach could enable a detailed and in-depth review of Trans Mountain outside of
the current environmental assessment process.
• In general, we recommend that the time be taken to “get it right” in relation to the way
in which proposed projects like the Trans Mountain pipeline and tanker project, and the
cumulative effects of multiple human activities, are assessed in future in BC. However,
flexible tools such as those discussed above (e.g., under the Environment and Land Use Act) or the Public Inquiries Act could be used to design special review processes in the short term. West Coast has been deeply engaged in all four environmental law review processes currently ongoing at the federal level: environmental assessment law and processes, National Energy
Board, Navigation Protection Act, andFisheries Act. We look forward to contributing to similar BC
processes to strengthen our environmental laws and decision-making processes.
A note regarding BC’s protected areas and the Trans Mountain project.
We note that, to accommodate Kinder Morgan, the provincial government has already removed
land from Finn Creek Provincial Park and weakened protective designations for Finn Creek and
Lac Du Bois Grasslands Protected Areas in order to allow the granting of park use permits for
construction of the Trans Mountain pipeline.
9
There are indications that Trans Mountain may be seeking to have lands removed from the North Thompson River and Bridal Veil Falls Provincial Parks as well.
10
Parks are important and receive a very high level of legal protection under BC law. Indeed, the Park Act does not allow the government to approve industrial development within the boundaries of a Class A or C provincial park.
11
To the extent that Trans Mountain may request that the BC government pass legislation removing further land from provincial parks to accommodate its pipeline, the Province has no legislative obligation to do so.
12
The federal government arguably has the legal power to authorize the taking up of Crown land in a provincial park by Trans Mountain under s. 77 of the National Energy Board Act, but such an action needs to be authorized by the federal Cabinet.
13
Thus, if Trans Mountain seeks to have further land legislatively removed from provincial parks and BC does not change its existing laws to allow it, federal Cabinet would need to address the protected status of the lands explicitly and
would presumably have an obligation to consult impacted Indigenous nations before doing so.
Conclusion
It’s time for BC to hit the ‘pause’ button on Kinder Morgan, uphold its obligations to Indigenous
peoples, and properly assess the project’s impacts – before it’s too late. The legal approaches laid
out here are, in our view, the most reasonable, logical and moral options to ensure that Trans
Mountain does not jeopardize the environment, Indigenous rights and public health.
Prepared by:
Jessica Clogg, Eugene Kung, Gavin Smith & Andrew Gage
West Coast Environmental Law Association
Lands were removed from Finn Creek Provincial Park by amending the Protected Areas of British Columbia Act , through Bill 25 of 2016, the Miscellaneous Statutes Amendment Act 2016. Through Order in Council 216/2017 (March 6, 2017), the lands removed were then made subject to an order under the Environment and Land Use Act that provides that the lands will be managed as park-land, subject to the powers of the Lieutenant Governor in Council to approve the construction and operation of the Trans Mountain. Pipeline through a future park use permit. At the same time, in order in Council 117/2017, the government amended an existing Environment and Land Use Act Order related to Lac Du Bois Grasslands Protected Area to make similar provision for the future issuance of a park use permit to Trans Mountain.
10
Carol Linnitt, “Kinder Morgan asks B.C. to Remove Land from Provincial Parks to Make Way for Trans Mountain Pipeline Con-
struction” (September 11, 2014),  eSmog Canada, online: <https://www.desmog.ca/2014/09/11/kinder-morgan-asks-b-c-remove-
land-provincial-parks-make-way-trans-mountain-pipeline-construction >.
11
Park Use Permits are required for activities within a park:
Park Act , R.S.B.C. 1996, c. 344, ss. 8 -9. In relation to Class A and C
parks, Park Use Permits to disturb natural resources may only be issued where the Minister finds that it is “necessary for the preser
-vation or maintenance of the recreational values of the park involved” (s. 9).
12
Note that the approaches set out above would position the provincial government to refuse, for the time being at least, park
use permits for the pipeline until further processes and conditions are addressed. Ideally, the provincial government would also
permanently restore removed lands to Finn Creek Provincial Park by legislation, and make an order restoring the pre-existing level
of protection to Lac Du Bois Grasslands Protected Area by removing the ability to grant park use permits to Trans Mountain. How-
ever, this may more directly raise constitutional issues similar to those discussed in Burnaby (City) v. Trans Mountain Pipeline ULC,  2015 BCSC 2140 in which Burnaby unsuccessfully sought to restrict pipeline related activities in a local protected area.
13
National Energy Board Act
, R.S.C. 1985, c. N-7, s. 77, requires Cabinet to authorize the taking up of Crown land.


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Indigenous, Green Groups Warn Banks Against Kinder Morgan Loans

 

 

Kinder-Morgan-Burnaby-Mountain-protest-Mark-Klotzflickr-sized-down

The Energy Mix by News Outlet Union of B.C. Indian Chiefs @UBCIC

June 13, 2017

More than two dozen Indigenous and environmental organizations have written to 28 major lenders to U.S.-based Kinder Morgan Inc., warning them against the “ethical, reputational, and financial risk” of underwriting a project that contributes to climate change and “Indigenous rights abuses,” and raising the spectre of confrontations like last year’s fight over the Dakota Access pipeline.

The Treaty Alliance Against Tar Sands Expansion, the Union of British Columbia Indian Chiefs, West Coast Environmental Law, Oil Change International, Greenpeace Canada, and 350.org are among the groups calling on financial institutions to back away from the Trans Mountain pipeline expansion project, which would reroute and triple the capacity of the Texas company’s existing Alberta-to-B.C. diluted bitumen conduit.

Among banks that underwrote the Kinder Morgan Canada IPO, and who received the letter, are Bank of America, Bank of Montreal, Canadian Imperial Bank of Commerce, Credit Suisse, JPMorgan Chase, National Bank of Canada, Royal Bank of Canada, Scotiabank, and Toronto-Dominion Bank. Banks that have offered Kinder Morgan current or past credit facilities included BBVA, BNP Paribas, Citigroup, Crédit Agricole, Morgan Stanley, UBS, and Wells Fargo.

“With financing [for Trans Mountain] apparently being finalized shortly, we urge your institutions to heed the lessons learned from the Dakota Access Pipeline (DAPL), and decline any additional involvement with Kinder Morgan that would facilitate financing of its pipeline expansion. In particular, we urge you not to arrange or participate in Kinder Morgan’s planned C$5.5 billion Credit Facility,” the groups’ letter read. “[B]anks that choose to participate in the new credit facilities, and banks acting as underwriters in the recent Kinder Morgan Canada IPO, will be priority targets for Indigenous, environmental, and community groups.”

Some commenters, along with Alberta Premier Rachel Notley, have cast the standoff between the pipeline’s supporters and opponents as a constitutional showdown over whether the national government has the power to ensure its decisions (such as pipeline approvals) are respected. “We can’t be a country that says one of its two functional coastlines is only going to do what the people who live right beside it want to do,” Notley said late last month,

But the latest letter should remind Notley and other observers that there is a third order of government in Canada, with stature equal to the provincial or federal Crown: Indigenous governments. And many of those—not only along the B.C. coast—are firmly opposed to the American company’s pipeline.

“Mark my words,” UBCIC Grand Chief Stewart Phillip told Notley. “Kinder Morgan’s Trans Mountain pipeline expansion project will never see the light of day. We do not accept the unscrupulous liability of dirty oil coming through any pipeline system to benefit some Texans or multinational interests at the expense of our inherent responsibilities to our grandchildren’s grandchildren.”

“As banks consider financing Kinder Morgan’s Trans Mountain Expansion tar sands pipeline, they should know that the over 120 First Nations and Tribes that have signed the Treaty Alliance Against Tar Sands Expansion will not let this project happen,” added Grand Chief Serge Simon of the Mohawk Council of Kanesatake. “Indigenous and allied resistance to the pipeline will not be limited to B.C. either—it will be all over Turtle Island, and will also target the banks that chose to ignore our opposition.”

“The existing Trans Mountain pipeline,” a UBCIC release adds, “has sprung 82 recorded spills, including four major spills since Kinder Morgan bought the pipeline in 2005. The Trans Mountain Expansion Project would not only triple Trans Mountain’s capacity—transporting an additional 590,000 barrels of crude oil each day—it would lock in expanded production of one of the most carbon-intensive oils, Alberta tar sands oil.”

See article here……….


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CAPP touts more pipelines, fossil production despite prospects for falling demand

“CAPP’s analysis always points to the dire need for new pipeline capacity, regardless of what’s happened with new pipeline development and tar sands/oil sands cancellations.”

The Energy Mix by

While forecasts pile up predicting a drop-off in demand for fossil transportation and heating fuels, Canada’s oil and gas producers see nothing but open throttles ahead for crude extracted from high-carbon bitumen and delivered to world markets by more pipelines.

In its 2017 Crude Oil Forecast, Markets and Transportation report, the Canadian Association of Petroleum Producers (CAPP) predicts that “Canada will need more pipelines built through to 2030 to transport an additional 1.3 million barrels per day of oilsands production to markets across North America and around the world,” according to industry monitor JWN Energy.

Existing lines, with a capacity of four million barrels per day, handle Canada’s existing petroleum production of 3.85 million barrels with room to spare. But with the expansion in output it envisions, the fossil lobby group forecasts that pipelines “will need to move more than 5.5 million barrels per day” by 2030. That growth “will exceed existing pipeline transportation capacity,” JWN writes, “highlighting the urgent need for pipelines heading east, west, and south.”

“Increased pipeline capacity to reach more Canadians and new, growing markets around the world will ensure Canada remains globally competitive,” CAPP asserts. But its expectations may be built on (tar-free) sand. A growing number of mainstream media outlets are reporting that oil’s day is done, and that the sun may go down much sooner than oil’s producers might like to believe.

“This is What the Demise of Oil Looks Like,” Bloomberg headlined a collection of forecasts showing how the influence of increasing energy efficiency, technology change, electric vehicles, and fuel-switching to renewable energy at plummeting prices will erode the International Energy Agency’s forecast that oil demand will rise more than 10% by 2040. CAPP, for its part, assumes that demand for some of the world’s most expensive—as well as highest-carbon—oil will grow by more than 34% a decade earlier.

Last year, an independent analysis based on CAPP’s own data from its 2015 Crude Oil Forecast demonstrated that Canada does not, in fact, need any new pipeline capacity.

Oil Change International was downright sanguine in its on-the-spot analysis of the CAPP release. “This ritual happens every June, and presumably CAPP hopes no one will actually compare the consistency of what it says each year,” writes Senior Campaign Adviser Greg Muttitt.

But after doing precisely that analysis, Oil Changes comes back with two observations: CAPP’s analysis always points to the dire need for new pipeline capacity, regardless of what’s happened with new pipeline development and tar sands/oil sands cancellations. And this year, a close look shows shifting numbers and assumptions that call the whole release into question.

“In reality, there’s enough pipeline space for all the [new production] projects that are currently being built; you only need new pipelines if you’re planning a massive expansion, and ignoring the Paris Agreement,” Muttitt concludes. “We’ve now closely followed six iterations of the CAPP graph of pipelines. And it’s fair to say they’ve got progressively more far-fetched over the years. But that’s what alternative facts are all about.”

See article here……


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Kinder Morgan Warns Trans Mountain Investors Pipeline May Never Be Built

                                                               Image: Burnaby Mountain protest. Photo: Mark Klotz via Flickr

DeSmog by Kai Nagata / May 29, 2917

This article originally appeared on Dogwoodbc.ca. 

It’s a rare dose of honesty from a company with a history of bending the truth. Kinder Morgan filed a final prospectus last week with securities regulators, setting the stage for a last-ditch attempt to raise enough cash to build its Trans Mountain expansion project.

Now all the Texas pipeline barons can hope is that investors don’t read the fine print.

The company is essentially trying to crowdfund $1.75 billion through an initial public offering. Kinder Morgan executive Ian Anderson sounded confident in a press release announcing the IPO: “Our approvals are in hand and we are now ready to commence construction activities this fall,” he said.

But the approvals are not in hand, and a mandatory risk analysis accompanying the share offering makes clear how difficult it will be to start construction. Provincial politics, lawsuits, blockades by First Nations – any one of these could kill the Trans Mountain pipeline project, the company admits.

Even if Ottawa sends in the army to get the thing built, all sorts of events over the coming decades could leave investors stranded: oil spills, Aboriginal title claims, shifting market conditions, earthquakes and yes, global warming.

Publicly, Kinder Morgan’s top Canadian executive has questioned the reality of climate change. But in these disclosure documents, the company admits rising sea levels could actually disable its Burnaby oil tanker terminal.

An investment in Restricted Voting Shares,” the prospectus soberly declares, “should only be made by persons who can afford a significant or total loss of their investment.”

Kinder Morgan’s lawyers identify five major pitfalls for shareholders, any of which could wipe out their hopes of a return.

  1. The development and construction of the Trans Mountain Expansion Project and other major expansion projects, are subject to significant risk and, should any number of risks arise, such projects may be inhibited, delayed or stopped altogether.”

This is where the prospectus contradicts Kinder Morgan’s Ian Anderson, who claimed “our approvals are in hand”. According to the document, risks to the Trans Mountain expansion include “inabilities to overcome challenges posed by or related to regulatory approvals by federal, provincial or municipal governments, difficulty in obtaining, or inability to, obtain permits (including those that are required prior to construction such as the permits required under the Species at Risk Act), Land Agreements, public opposition, blockades, legal and regulatory proceedings (including judicial reviews, injunctions, detailed route hearings and land acquisition processes), delays to ancillary projects that are required for the Trans Mountain Expansion Project (including power lines and power supply), increased costs and/or cost overruns, inclement weather or significant weather-related events (including storms and rising sea levels (potentially resulting from climate change) impacting the Business’ marine terminals) and other issues.”

Quite a paragraph.

The prospectus continues: “To the extent the Business is not able to acquire land rights through negotiated agreements for the sections of the Trans Mountain Expansion Project that require new land rights, the Business will need to seek right of entry orders from the NEB, which could result in delays and increased cost.”

Translation: People may fight us when we show up to expropriate their homes.

The company also acknowledges the 19 separate lawsuits it faces, any one of which could halt the project. “In addition to the judicial reviews of the NEB recommendation report and Governor in Council’s order, parties have also commenced judicial review proceedings at the Supreme Court of British Columbia seeking to quash the Environmental Assessment Certificate that was issued by the BC Environmental Assessment Office. In the event that an applicant for judicial review is successful, among other things, the Environmental Assessment Certificate may be quashed, provincial permits may be revoked […] or the Trans Mountain Expansion Project may be stopped altogether.”

  1. The debt levels of the Business, including increases in such debt levels, could have significant negative consequences for the Business.”

This is an issue flagged by investment blog The Motley Fool, which calls this IPO “a dog with fleas” and warns readers “under no circumstances should you buy any shares.”

Will Ashworth writes: “Take a look at the balance sheet for Kinder Morgan’s Canadian business, and you’ll see that it’s got $159 million in cash and $1.4 billion in debt; that’s net debt of $1.2 billion. Assuming the over-allotment is exercised, the IPO will raise $2 billion, leaving Kinder Morgan with $800 million in net cash and $6.6 billion short of what its projected needs are to complete the Trans Mountain pipeline expansion.”

Sure enough, the prospectus says more cash infusions will be required if the company actually decides to build: “The Business is expected to incur substantial additional indebtedness to fund capital expenditure requirements related to the Trans Mountain Expansion Project.”

Company-wide, Kinder Morgan is groaning under $35.1 billion in debt. With its credit downgraded as a result, the pipeline giant admits that rising interest rates could pose a problem: “The growth plans for the Business, including the Trans Mountain Expansion Project, require access to significant amounts of external capital. Limitations on the ability of the Company or the Business to access external financing sources could impair the ability of the Business to complete these significant projects, including the Trans Mountain Expansion Project.”

  1. The failure by the Business to resolve issues relating to Aboriginal rights and title and the Crown’s duty to consult could have a material adverse effect on the Trans Mountain Expansion Project.”

This is an important one. Here’s what the company’s own lawyers say: “In some cases, respecting Aboriginal rights may mean regulatory approval is denied or the conditions in the approval make a project economically challenging or not feasible.”

They’re also worried about First Nations along the route proving title to the land, like the Tsilhqot’in did in 2014. That could force Kinder Morgan to dig up and reroute the existing pipeline, not to mention the expansion.

Even with First Nations leaders that have tentatively signed impact benefit agreements, the prospectus anticipates Kinder Morgan could find itself back in court: “Future disagreements with Aboriginal groups could result in legal challenges by Aboriginal groups alleging breach of contract.”

  1. Changes in government, loss of government support, public opposition and the concerns of special interest groups and non-governmental organizations may expose the Business to higher costs, delays or even project cancellations.”

The part about “changes in government” seems particularly relevant now that the Green Party holds the balance of power in the provincial legislature. The Greens and the NDP have sworn to fight the project with all legislative tools available. Kinder Morgan acknowledges in this document that the province does indeed have the power to stop the pipeline.

Construction of the Trans Mountain expansion could also be abandoned “due to increasing pressure on governments and regulators by special interest groups including Aboriginal groups, landowners, environmental interest groups (including those opposed to oil sands and other oil and gas production operations) and other non-governmental organizations, blockades, legal or regulatory actions or challenges.”

In addition, “market events specific to Kinder Morgan, the Company or the Business could result in the deterioration of Kinder Morgan’s reputation with key stakeholders,” the prospectus warns.

In particular, Kinder Morgan’s reputation could be impacted by negative publicity related to pipeline incidents, unpopular expansion plans or new projects and due to opposition from organizations opposed to energy, oil sands and pipeline development and particularly with shipment of production from oil sands regions that are considered to increase GHG emissions and contribute to climate change.”

On the bright side, if climate activists are successful, perhaps Kinder Morgan can salvage its marine terminal.

  1. The Business is subject to significant operational risks, including those relating to the breakdown or failure of equipment, pipelines and facilities; releases and spills; operational disruptions or service interruptions; and catastrophic events.”

This last section is pretty scary. It confirms everything intervenors tried to raise during the biased NEB review (that Prime Minister Trudeau and Premier Clark both rubber-stamped).

There are a variety of hazards and operating risks inherent in the transportation and storage of crude oil, such as: leaks; releases; the breakdown or failure of equipment, pipelines and facilities (including as a result of internal or external corrosion, cracking, third party damage, material defects, operator error or outside forces); the compromise of information and control systems; spills at terminals and hubs; adverse sea conditions (including storms and rising sea levels) and releases or spills from vessels loaded at the Business’ marine terminals; and catastrophic events including but not limited to natural disasters, fires, floods, explosions, earthquakes, acts of terrorists and saboteurs, cyber security breaches, and other similar events, many of which are beyond the control of the Company, the Business and Kinder Morgan.”

Some climatic models indicate that global warming may result in rising sea levels, increased intensity of weather, and increased frequency of extreme precipitation and flooding. To the extent these phenomena occur, they could damage physical assets, especially operations located near rivers, and facilities situated in rain susceptible regions. In addition, the Business may experience increased insurance premiums and deductibles, or a decrease in available coverage, for its assets in areas subject to severe weather.”

The occurrence or continuance of any of the risks set out above could result in serious injury and loss of human life, significant damage to property and natural resources, environmental pollution, impairment or suspension of operations, fines or other regulatory penalties, and revocation of regulatory approvals or imposition of new requirements, any of which also could result in substantial financial losses.”

For pipeline and storage assets located near populated areas, including residential areas, commercial business centers, industrial sites and other public gathering areas, the level of damage resulting from these risks may be greater. In addition, the consequences of any operational incident (including as a result of adverse sea conditions) at the Business’ marine terminals or involving a vessel receiving products from one of its marine terminals, may be even more significant as a result of the complexities involved in addressing leaks and releases occurring in the ocean or along coastlines and/or the repair of the Business’ marine terminals.”

In other words, there is no technology to clean up diluted bitumen once it spills into seawater. Kinder Morgan makes clear that it bears no responsibility for the oil tankers once they leave the dock at Westridge – but warns that a tanker spill could still hurt the company’s reputation, halt its operations and wipe out its investors’ profits.

The company also admits that it may not have enough insurance to cover a serious incident: “The Business is covered by an insurance program which is renewed annually and has $1 billion worth of financial capacity for spill events in accordance with the Pipeline Safety Act. However, the Business’ insurance program may not cover all operational risks and costs and/or may not provide sufficient coverage in the event a claim is made against the Business.”

In 2010 an Enbridge pipeline carrying diluted bitumen burst into the Kalamazoo River in Michigan. Cleanup costs sailed well north of $1 billion – a fact that can’t have escaped Kinder Morgan.

Finally, the pipeline company comes close to acknowledging that its entire business model may be on the way out. A piece of infrastructure like the new Trans Mountain pipeline is supposed to last for at least 40 years. But the company doesn’t sound confident that the world will still be burning heavy oil in the late 2050s.

Changes in the overall demand for hydrocarbons, the regulatory environment or applicable governmental policies (including in relation to climate change or other environmental concerns) may have a negative impact on the supply of crude oil and other products. In recent years, a number of initiatives and regulatory changes relating to reducing GHG emissions have been undertaken by federal, provincial, state and municipal governments and oil and gas industry participants (including, for example, the decarbonization targets set forth in the Paris Agreement). In addition, emerging technologies and public opinion has resulted in an increased demand for energy provided from renewable energy sources rather than fossil fuels. These factors could not only result in increased costs for producers of hydrocarbons but also an overall decrease in the global demand for hydrocarbons.”

What’s the point?

So why go through this whole song and dance to raise cash for a project that even Kinder Morgan agrees is a long shot? The answer may lie in an investor call held just before the B.C. election.

Financial blogger David Alton Clark asked Kinder Morgan reps what would happen if the project were abandoned. “It would certainly be a major setback, but with ground not broken yet, KMI could direct most of the cash we would use for this project to other projects,” Clark reports them saying.

The investor relations team indicated only $600 million in sunk costs on TMEP presently,” Clark writes. So, how much cash will Kinder Morgan Canada net if next week’s IPO goes to plan? Somewhere between $500 million and $750 million.

I’ll give the last word to Grand Chief Stewart Phillip.

This company was founded from the ashes and rubble of Enron, a company synonymous with scandal, corporate fraud and bankruptcy,” said the President of the Union of B.C. Indian Chiefs in a news release.

Today these same reckless cowboys are trying to convince gullible investors to plow cash into a pipeline they know will never be built.”

See article here…….

 


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Kinder Morgan plans work all along Trans Mountain line, starting in September

Highlights from Trans Mountain’s detailed construction schedule listed here starting September 1, 2017.

 

Construction work on the Kinder Morgan Trans Mountain pipeline in B.C. near Jasper, Alta., in 2008. Kinder Morgan / PNG

Vancouver Sun byGordon Hoekstra  /  June 8, 2017

 

Kinder Morgan’s schedule for the $7.4-billion Trans Mountain oil pipeline expansion shows construction work is to start as early as Sept. 1.

The detailed schedule was filed recently with the National Energy Board, one of 157 conditions that must be met in order for the Houston, Texas-based company to begin construction.

It shows the large scope of the project where land clearing on some portions of the 1,150-kilometre pipeline route will begin in September.

The first detailed look at how construction is to unfold brings into relief that while there continues to be legal and political fights to stop the project over concerns of an oil spill and increased oilsands emissions, the company is gearing up to start construction in less than three months.

 Kinder Morgan declined an interview on Thursday on its construction plans and scheduling – and any delays they may potentially face.

In a written statement, Kinder Morgan’s Trans Mountain spokeswoman, Lizette Parsons Bell, said people should expect construction will take place according to the schedule. “However the schedule is subject to refinement as we work through detailed engineering, design and construction planning and meeting conditions,” she said.

The project would twin the existing pipeline and nearly triple capacity to 890,000 barrels a day, providing a conduit for bitumen from the Alberta oilsands to the coast and opening new markets in Asia.

The project has federal and provincial regulatory approval, and the backing of Prime Minister Justin Trudeau, but there are more than a dozen legal challenges by First Nations, municipalities and environmental groups that have yet to be heard.

An NDP-Green alliance is expected to take power in B.C. within a month, with both NDP Leader John Horgan and Green Leader Andrew Weaver saying they will do everything in their power to stop the project.

That includes possibly joining the legal challenges from First Nations, and potentially denying provincial permits, for example for logging along the route.

People support the Walk for the Salish Sea in May. The walk to protest the Trans Mountain expansion proposal started in Victoria and ended at the Kinder Morgan Westridge marine terminal in Burnaby. CHAD HIPOLITO / THE CANADIAN PRESS

Hilary Novik, an analyst at the political risk consultancy firm Eurasia Group, said political developments in B.C. are being watched carefully, including any uptick in intensity of protests. She cited a recent event where activists chained and locked themselves to a fence outside Kinder Morgan’s Westridge terminal in Burnaby.

She said her company is also watching to see whether Trudeau will continue to back the project should “massive” protests materialize as in North Dakota against the $3.7-billion Dakota Access oil pipeline.

“We do think he will stand by his approval,” said Novik, based in Washington, D.C.

She said that’s because Trudeau has already invested too much political capital not to see the project built.

Another potential headache for Kinder Morgan is more than 400 statements of opposition, an unusually large number, that have been filed with the NEB on the detailed route.

The NEB will determine which of those are valid – some certainly will be ruled invalid – and a panel will be set up this fall to hear arguments from the company and landowners and others who believe the pipeline route has a direct effect on them and should be changed.

If the NEB panel decides the route should be changed in some areas, the company would need to re-do planning work for a new route, say NEB officials.

Ian Stephen, a campaign director for the Chilliwack-based Waterwealth Project, filed an opposition letter although he does not own land directly on the route.

Stephen is among those in Chilliwack who believe the twinning of the pipeline is a risk, if there is a spill, to important wetlands and to the aquifer that supplies drinking water in the area. Changing the route outside the aquifer, and moving the existing pipe outside the aquifer, would solve the problem, he said.

ghoekstra@postmedia.com

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Construction is to begin in September on the expansion of the Westridge marine terminal, where tankers will take on the bitumen from the expanded Trans Mountain oil pipeline. Gerry Kahrmann / PNG

Highlights from Trans Mountain’s detailed construction schedule

  • Development of sites to stockpile equipment and material to begin Sept. 1 almost everywhere along the 1,150-kilometre route.
  • Pipe shipments begin in late September.
  • Stringing and welding of pipe is to take place by as early as mid-October near Edmonton and other Alberta locations, but not until the summer of 2018 in the Chilliwack area and in October 2018 in the Kamloops area.
  • Land clearing to begin in Langley, Surrey, Coquitlam and Burnaby beginning in the first week of September, with pipeline construction to begin in January 2018.
  • Boring of a tunnel through Burnaby Mountain is to begin in late March 2018.
  • Construction to begin in September on the expansion of the Westridge marine terminal, where tankers will take on the bitumen.

See article here………….