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Kinder Morgan’s Salad Days of Summer

July 10, 2016

Summer lovin', had me a blaaaaaasst!

Summer can be a time of renewal and relaxation. Kids have a break from school. Teachers get a break from kids. Families go on vacation – camping, fishing and swimming in lakes, rivers or oceans. People test their will against the sun (and the sun always wins).

The natural break of summer also opens opportunities to partake in temporary, time-limited activities: as a boy I was sent off to summer camp at Camp Elphinstone and Evans Lake. There I experienced my (very awkward) first summer loving – there was no music or choreography. Later, as a student, I enrolled in summer school, and worked various summer jobs (mostly as a cook and later as a tree planter).

The warmth and relative freedom of summer also creates an atmosphere of spontaneity and often last-minute plans come together: “Let’s drive to that pow-wow this weekend!” “Who wants to go to the beach for a picnic this afternoon?” “Come to the Vancouver Folk Festival and visit our WCEL table!”

Well, summer 2016 is no different. For those following the fate of the Kinder Morgan pipeline, there are some spontaneous and brief, summer-camp-inspired public meetings coming up (see below). But the season really started when the Federal Court of Appeal (FCA) released its much anticipated Enbridge Decision on June 30.

Implications of Enbridge Decision on Kinder Morgan

The Enbridge decision is positive overall for opponents of Kinder Morgan. It confirms that First Nations must be meaningfully consulted and accommodated on decisions that will affect their rights. When that consultation is inadequate, the Court of Appeal is clear that an approval can and will be overturned. However, the decision also leaves some unanswered questions.

The FCA focused its analysis on the former federal government’s Cabinet decision approving Northern Gateway, and dismissed the judicial reviewsof the Joint Review Panel report – the equivalent to the recently released National Energy Board (NEB) report of Kinder Morgan. The FCA held that, under the current legislative scheme resulting from Harper’s gutting of our environmental laws, only the Cabinet decision is judicially reviewable.

That may not be great news for the seven judicial reviews of the NEB Kinder Morgan report filed in the courts last month. However, it remains to be seen if the Enbridge decision will be appealed to the Supreme Court of Canada (SCC). Parties have until September 22, 2016 to seek leave from the SCC, so there are still a lot of live questions.

Furthermore, it is possible that the judicial reviews of the NEB report on Kinder Morgan will be put on hold until after the Cabinet decision in December is appealed, as was the case in the Enbridge file. Either way, no one ever thought that these judicial reviews would be the final round of appeals, and it was important to preserve the right to appeal the NEB report prior to the clarification in the Enbridge decision.

And none of this changes the decisions made by First Nations under their own, unextinguished Indigenous Laws to ban risky tar sands projects.

Whatever happens, the tasks for Prime Minister Trudeau and his Cabinet in the months ahead are monumental. They will have to conduct fulsome and meaningful consultation with First Nations within their self-imposed timeline. They will have to do significantly better than the Harper government’s approach to consultation which the FCA said “fell well short of the mark.”

The Federal government has also begun its process to fix our broken regulatory system, and in doing so, it has the opportunity to reform our laws to ensure a role for independent administrative tribunals with judicially reviewable decisions. This is a vital and fundamental part of our constitutional parliamentary democracy, where courts provide oversight when constitutional and legal errors are committed by the administrative tribunals and governments.

Squamish and Tsleil-Waututh Nations sign the Fraser Declaration

Tsleil-Waututh and Squamish Nation chiefs sign the Save the Fraser Declaration in 2012

4 seasons of Kinder Morgan: Summer meetings

On the same day that the Federal Court of Appeal released its Enbridge decision, the Federal government’s Major Projects Management Office (MPMO) quietly announced further details about its supplementary summer process on Kinder Morgan’s Trans Mountain Project.

You may recall that PM Trudeau campaigned on a promise to fix our broken regulatory system last fall during the election campaign. In the winter, Natural Resources Minister Carr and Environment and Climate Change Minister McKenna announced five principles for a transition phasefor Kinder Morgan’s Pipeline. This means that fixing our broken regulatory system will happen after Cabinet makes a decision on Kinder Morgan, albeit with some additional process.

Then in spring, (just days before the NEB released its controversial recommendation to approve the Kinder Morgan project), the members of the Ministerial Panel were announced, including Annette Trimbee, the president of the University of Winnipeg and a former deputy finance minister in Alberta; Tony Penikett, the former premier of Yukon, and Kim Baird, the former elected chief of the Tsawwassen First Nation and partner of Kinder Morgan Canada.

We didn’t hear any further details until the summer, when the dates of the Panel’s tour were announced, and details slowly trickled onto the MPMO website. Within 48 hours of the announcement, the summer meetings began, starting just last week in Calgary, Edmonton and Jasper. Talk about some spontaneous summer fun! See below for how to get in on the action in BC.

Empty room for KM
Turnout in Edmonton was predictably low, with only 48 hours notice before the first summer meetings.

Despite the last minute information about these summer meetings, they are an acknowledgement of the failures of the broken NEB process, and are an important opportunity for individuals and communities to make it clear that Kinder Morgan lacks social license and community support. However, by delaying the meetings by months, and squeezing them into a few weeks over the summer, it may be challenging for families on summer vacation to participate.

It is also notable that a number of directly affected communities will not be visited by the panel. Victoria is the only Vancouver Island stop, even though many coastal communities will bear the primary risk of the 700% increase in tanker traffic. In Metro Vancouver, North and West Vancouver have been excluded.  [Edit: a North Vancouver date was added just as we posted this blog]

It is still not clear exactly what public participation will look like. There will also be a number of thematic invitational roundtables (landowners, local government, NGO, business, education and transport) but it is not known who will be invited. General public participation appears to be intended, but it is not clear how (if at all) the public will be able to address the Panel.

Interestingly, the schedule includes “First Nations roundtables” without open participation. This curious decision is contrary to the Ministerial Panel’s own recognition that it is not a substitute for constitutionally required Crown consultations with First Nations, as confirmed by numerous court cases. If First Nations governments are not part of this roundtable, then it will presumably be First Nations individuals, whom the Panel apparently sees as distinct from the “public”.

David Parkins/The Globe and Mail

The Major Projects Managment Office also launched an internet based engagement tool through an online questionnaire that will receive input until September 30, 2016.

The Ministerial Panel has no legal or decision making authority, but will be an input into Cabinet decision in December. In our view, it is an important opportunity to let Cabinet know that the project is too risky and faces a wall of opposition. For that reason, we have teamed up with some of our friends and allies to build a resource: You can sign up to get updates about the meetings in your community below.  To present at these meetings email

Let’s make this a hot summer of discontent for Kinder Morgan. And seriously, come visit our table at the Folk Festival this weekend.

Eugene Kung, Staff Lawyer


Game On!  The federal government just announced public meetings on Kinder Morgan's tar sand pipeline and tanker project

Dates for BC (updated August 3, 2016)

Scroll down to find the event details for your community, and click the link to RSVP:


July 19: Kamloops BC, Thompson Rivers University, Irving K. Barber Centre
0900-1030: invitational roundtable (local government)
1230-1630: First Nations roundtable

July 20: Kamloops BC, Thompson Rivers University, Irving K. Barber Centre
0900-1030: invitational roundtable (local government)
1100-1230: invitational roundtable (NGOs)
1400-1530: invitational roundtable (business)

Click here to RSVP for Kamloops Summer Meetings


July 21: Chilliwack BC, Coast Chilliwack Hotel

0930-1100: invitational roundtable (landowners)
1230-1630: First Nations roundtable

Click here to RSVP for Chilliwack Summer Meetings


July 26: Abbotsford BC, Tradex, Hall A
1030-1230: Local government roundtable
1400-1630: NGO roundtable

Click here to RSVP for Abbotsford Summer Meetings


July 27: Langley BC, Coast Hotel and Conference Center, Cascades Ballroom
1300-1500: First Nations roundtable
1530-1930: Public town hall

July 28: Langley BC, Coast Hotel and Conference Center, Cascades Ballroom
0900-1030: Local government roundtable
1100-1230: Environmental NGO roundtable
1400-1530: Labour and economic roundtable

Click here to RSVP for Langley Summer Meetings


August 9: Burnaby BC, Hilton Vancouver Metrotown, Crystal Ballroom
1000-1200: Environmental NGO roundtable
1300-1430: Local government roundtable #1
1500-1630: Local government roundtable #2

August 10: Burnaby BC, Hilton Vancouver Metrotown, Crystal Ballroom
0930-1030: Education roundtable
1100-1200: NGO roundtable
1330-1700: Public town hall

August 11: Burnaby BC, Hilton Vancouver Metrotown, Crystal Ballroom
1330-1500: Economic round-table
1630-2000: Public town hall

Click here to RSVP for Burnaby Summer Meetings


August 16: Vancouver BC, SFU Morris J Wosk Centre for Dialogue, Asia Pacific Hall
1000-1100: Socio-economic NGO roundtable
1130-1230: Transportation roundtable
1330-1430: Economic roundtable
1500-1630: Local government roundtable

August 17: Vancouver BC
1100-1230: NGO roundtable, SFU Morris J Wosk Centre for Dialogue, Asia Pacific Hall
1430-1930: Public town hall, SFU Segal Building, Rooms 1200-1500

August 18: Vancouver BC, SFU Morris J Wosk Centre for Dialogue, Asia Pacific Hall
930-1130: First Nations roundtable
1300-1630: Environmental NGO roundtable

Click here to RSVP for Vancouver Summer Meetings


August 19: North Vancouver BC, North Vancouver District Hall
1030-1200: Local government roundtable
1430-1900: Public town hall

Click here to RSVP for North Vancouver Summer Meetings


August 22: Victoria BC, Marriott Inner Harbour Hotel, Pacific Ballroom
0900-1200: First Nations roundtable
1330-1530: Local government roundtable

August 23: Victoria BC, Marriott Inner Harbour Hotel, Pacific Ballroom
1230-1500: Environmental NGO roundtable
1600-2030: Public town hall

Click here to RSVP for Victoria Summer Meetings