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5 reasons to #StopKM

Last month Kinder Morgan set an arbitrary May 31 deadline for reaching a deal to approve the $7.4-billion pipeline project that will ship mostly diluted bitumen from Alberta to the Coast Salish Sea for export. Here are our top 5 reasons to stop this tar sands pipeline.
  1. The project requires Indigenous consent and Kinder Morgan doesn’t have it. 
  2. Kinder Morgan pipeline is the wrong direction on climate change. 
  3. Diluted bitumen spills present unacceptable risks to critical waterways and Coast Salish Sea. 
  4. Liberal band-aids didn’t fix Harper review process, and now we know it was rigged.
  5. Investing in a new tar sands pipeline is a bad economic choice.
1.  The project requires Indigenous consent and Kinder Morgan doesn’t have it.  

There are many important layers to the strong and growing Indigenous opposition to Kinder Morgan. 

The federal government has a legal duty, under Section 35 of Canada’s Constitution, to consult First Nations in a meaningful way about issues and decisions that could affect their rights, their land and water. Prime Minister Trudeau continues to claim the band-aid ‘interim principles’ attached to the broken Harper era National Energy Board (NEB) review Kinder Morgan was thorough in consulting with First Nations. Insufficient consultation and rights infringement are at the crux of the case before the Federal Court of Appeals on behalf of seven First Nations challenging the NEB and federal approval.  

The National Observer recently released several explosive stories providing evidence that the NEB consultation process was not meaningful (see reason number 4 for more details) that may have legal implications. A letter was recently sent from a Tsleil-Waututh Nation (TWN) lawyer (one of the seven First Nations involved in the legal challenge) calling for a reopening of the case and considering of new evidence before issuing a ruling.

Indigenous peoples possess the inherent right to govern our territories. Pursuant to that inherent right, you need our free, prior and informed consent to develop our lands, especially when we are talking about a high-risk project such as Kinder Morgan that poses a real risk to those lands and waters and climate.” These were the words of Grand Chief of Okanagan Nation and president of the Union of B.C. Indian Chiefs, Stewart Philip and Serge ‘Otsi’ Simon, Grand Chief of the Mohawk Council of Kanesatake, in their recent oped featured in the Globe and Mail. 

Free Prior and Informed consent is enshrined in the United Declaration on the Rights of Indigenous People (UNDRIP). The Canadian government has reluctantly endorsed UNDRIP, including most recently with a NDP private member’s bill aimed at ensuring laws are in harmony with it, which passed the House of Commons in February.  
Kinder Morgan likes to talk about the agreements it has with 43 First Nations, but suggesting this indicates consent is misleading. First of all, some of the agreements signed do not in fact constitute consent, rather are conditional agreements with no final decision made. This was recently reported on by the CBC highlighting the example of the Lower Nicola First Nation (included in Kinder Morgan’s list of agreements): “We are still in dialogue with the company,” said [Chief Aaron] Sumexheltza. “Over the next couple of months, we are going to have to make a decision whether our chief and council is going to sign off on a final agreement or not.” The number of contracts drops to 30 when you look only at B.C. where around 100 First Nations are affected by the project.  

There is a line in the sand being drawn against the project as it impacts unceded territories. For example, Secwepemc land defender Kanahus Manuel has stated: “Kinder Morgan is misleading investors by suggesting they have secured the land base and Indigenous consent for the Trans Mountain pipeline.  They do not have consent from the Secwepemc and failure to recognize Secwepemc title, land rights and indigenous jurisdiction, will only result in more conflict, direct actions, blockades and Indigenous land occupations which will increase the risks and economic uncertainty for Kinder Morgan and its construction deadlines.”  The assembly has also issued a Women’s Declaration Against Kinder Morgan Man Camps and is building tiny houses strategically placed along the 518 km route through their territory to assert Secwepemc Law and jurisdiction and block access to this pipeline.

There is also the Kwekwecnewtwx (in Coast Salish means ‘a place to watch from’), a traditional “Watch House” recently erected by Indigenous Coast Salish members, spiritual leaders and youth 100 yards south of the Kinder Morgan oil facility in Burnaby. It is being used as a place for Indigenous and non-Indigenous people to come together, discuss, plan and base their actions in the teachings and leadership of the original peoples of the coast. 

2. KM is the wrong direction on climate change. 

The best thing to do when you are in a climate hole is stop digging. 

Prime Minister Trudeau and Environment and Climate Change Minister Catherine McKenna continue to double down on their insistence that they can meet Paris Agreement climate targets and build the Kinder Morgan pipeline (in part by exporting the emissions from the oil the pipeline would transport). This is an example of the extent to which building a narrative (we are for protecting environment and a strong economy) and sticking to it (Kinder Morgan will get built , we will meet our Paris climate targets) can sway public discourse, particularly in mainstream media, despite the very questionable factual basis for the position. 

For a breakdown on why I don’t think this adds up, see my blog Why Minister McKenna is being unreasonable on Kinder Morgan pipeline and climate action. In sum, the Albertan cap on emissions it too high and leaky, the 44 megatonnes (MT) gap between government promises and Canada’s Paris climate target has increased to 66 MT (this is leaky too) and this gap rises to 119MT if you exclude plans to use questionable carbon offsets outside of the country. Let’s also bear in mind that we are talking about the Harper-era climate target, not what is actually needed to do our fair share in ensuring future generations have a safe climate. 

We need to stop having to fight new fossil fuel projects (including BP’s plan to offshore drill Nova Scotia which began last week! ) and recognize the sector is big enough. We need to get serious about managing existing supply minimize environmental and social impacts while planning for a just transition to sustainable energy production and consumption.  

3. Diluted Bitumen spill threatens waterways and Coast Salish Sea 

The B.C. government is on solid ground in calling for a more robust understanding, and protection from diluted bitumen spills in waterways and the Coast Salish Sea. 

Thick and heavy bitumen produced in the tar sands is mixed with dispersants (toxic chemicals) in order to make it light enough to flow through pipelines. It does not react like conventional oil when spilled in water. When an Enbridge pipeline spilled 3 million litres of diluted bitumen in the Kalamazoo river (2010), it flowed 60 kms before reaching a dam and then sinking to the bottom of the waterway.  Clean up efforts involved extensive dredging of the riverbed which took years, cost more than $1 billion. Some submerged oil contamination still remains.

Our campaign against TransCanada’s (now cancelled) Energy East pipeline saw us produce several reports on the threat the project presented to waterways, including drinking water sources. Waterways along the Kinder Morgan pipeline face the same risks including the Abbotsford-Sumas aquifer (City of Abbotsford drinking water) and Coldwater Valley watershed and aquifer (Coldwater Indian Band’s drinking water). 

Both construction efforts and a spill are a direct threat to Pacific salmon. The pipeline crosses the Fraser River both at the headwaters and further downstream, as well as running alongside its shores. The Fraser River is a critical habitat for Pacific salmon (already under stress) which is central to Indigenous cultures and economies. In fact Pacific salmon generate more than $500 million in revenue every year from commercial harvest, tourism and sport fishing. A mock Pacific salmon recently blocked the entrance to the Canadian Revenue Agency office in Vancouver in opposition to the proposed Kinder Morgan bailout (more on that in reason number 5)!  

A tanker spill of diluted bitumen in the Coast Salish Sea would be devastating, including to Orcas that are already vulnerable. Even Transport Canada expects only 10 to 15 per cent of a marine oil spill to be recovered from open water, and that’s with conventional oil, not diluted bitumen. 

4. Liberal band-aids didn’t fix Harper review process, and now we know it was rigged

I guess that’s something that wouldn’t have fazed me at all if the Harper government was still in power, But given the change in government, seeing as how we were told to provide serious advice, I was rather shocked…

These are the words of a second anonymous public servant offering further confirmation that public servants had be instructed at an internal meeting in Vancouver on Oct. 27, 2016 to “give cabinet a legally-sound basis for saying ‘yes,'” to the Trans Mountain project” as reported by the National Observer. This is when the government was meant to be consulting in good faith with First Nations and the public on the Kinder Morgan pipeline (as noted earlier, this new evidence may have ramifications for the case before the Federal Court of Appeal). 

While on the campaign trail Trudeau told residents in B.C. that the project would be subject to the (then proposed) new environmental assessment process – this is a broken promise. The Kinder Morgan pipeline proceeded under the broken Harper era NEB process with the addition of some Liberal band-aid measures that were roundly criticized by Indigenous and public participants. The process failed to adequately consult First Nations and the public alongside other serious problems including not considering the climate impacts from increased tar sands production, refusal to allow witnesses to be cross-examined and insufficient consideration given to the risks of a diluted bitumen spill. 

5. Investing in a new tar sands pipeline is a bad economic choice.

There is a reason why Kinder Morgan wants taxpayers money to (bail out) take on the financial risk for the Houston-based corporation. As economist Robyn Allan argues in her recent oped, the Kinder Morgan project has never been commercially viable. In addition to already relying on previously confirmed public subsidies, Allan argues the project financing is compromised. Allan notes that the projects increasing costs were not adequately considered in the NEB review process: “In March 2017, costs rose again to $7.4 billion — 40 per cent from the initial estimate. By this time U.S. private capital markets summarily rejected the expansion. Kinder Morgan was unable to raise debt or equity and no joint-venture partner could be found — U.S. investors saw the writing on the wall.”   

The former  chief executive of TransCanada Corp, Hal Kvisle recently chimed in, telling the BNN: “The only way [the Trans Mountain expansion project] could go ahead is if the government was to indemnify Kinder Morgan against a failed project halfway through… That’s a $10 billion dollar indemnity – I don’t know that’s going to happen.” 

Project proponents frequently speak of getting oil to ‘tidewater’ to fetch a better price as a core reason for it to proceed. This is based on the perception of a shortfall in export pipeline capacity, precisely what Kinder Morgan presented to its investors.  Here again, Robyn Allan provides clarity finding Kinder Morgan presented investors a 2017 graph and numbers about pipeline capacity shortfalls that were not accurate when contrasted to data from Enbridge and OpenCanada which indicates there was sufficient capacity. 

The getting oil to ‘tidewater’ argument also assumes the ‘discount’ price tar sands crude sells for is caused by lack of export pipeline capacity. As Paul McKay explains, there are clear reasons for this discount price including the high costs of shipping and refining heavy bitumen produced in the tar sands (compared to conventional oil) and growing access to Very Large Crude Carriers (VLCCs) from the Louisiana Offshore Oil Port and other locations that are cheaper than (comparably) smaller and more expensive boats from B.C. 

Economist Jeff Rubin has also stated that this argument of increased access to export markets unlocking higher prices is “not corroborated by either past or current market conditions.” 

More to the point, Rubin also recommends, “the National Energy Board consider a rapidly decarbonizing global economy as the base case when modelling future oil demand and use the heavy oil price benchmark Western Canadian Select when evaluating projects” 

In other words the writing is on the wall for Big Oil. Building pipeline infrastructure that is meant to be in use for at least 40 years doesn’t make sense when we should be aiming to be fossil free by 2050.

Actions you can take to #StopKM 
    1. Support Indigenous-led and frontline opposition by donating to the StopKM legal fund towards the legal defence costs stemming from civil disobedience, the pull together campaign for Indigenous legal challenges to KM, help the Tiny House Warriors and the Beaver Lake Cree’s legal challenge to the Albertan and Canadian governments to protect their land from tar sands expansion.
    2. Join and support frontline opposition, including volunteering at the Watch House and upcoming actions (get in touch with us about opportunities)
    3. Join our emergency rally in Ottawa, to be held when the Liberals table a motion or bill (as Trudeau has indicated they would) in support of Kinder Morgan