Indigenous rights and Trans Mountain: in-depth with Prime Minister Justin Trudeau

In her latest Judgment Call podcast, Sandy Garossino speaks about the Federal Court of Appeal ruling on Thursday on the Trans Mountain pipeline expansion that sent shock waves across the nation. For context, Garossino takes us back to her 30-minute interview with Prime Minister Justin Trudeau on February 13. At the time, Trudeau answered in-depth questions around Indigenous consultation and what might happen if a First Nations-led lawsuit against the government were successful.

Below is a transcript of that conversation, edited for brevity and clarity.

Q: Thank you so much for joining us Mr. Prime Minister. We’re here talking about the Kinder Morgan Trans Mountain pipeline expansion and concerns across Canada on both sides of the equation. Can you tell us, what is the compelling national objective supporting the Kinder Morgan pipeline expansion?

PMJT: "The national objective is, as we said many times — protecting the environment and growing the economy at the same time. Those are the two things that we set out as a core of what we do, and what we recognize Canadians know that we need. We need to make sure we’ve got jobs for the future, but we also need to make sure we’re protecting the environment, which means making sure we’re moving towards a transition off of fossil fuels in the long run, making sure we’re protecting our oceans, making sure we’re creating opportunities for Canadians and their families to have good work.

What means tangibly for us, is that we put forward a national plan on fighting climate change, on reducing carbon emissions. We moved forward on a historical oceans protection plan and we’re moving forward on getting our resources to market safely and securely through the Kinder Morgan pipeline. And all those things tie together as a part of the whole."

Q: But what is it about Kinder Morgan particularly that makes that an essential ingredient in this formula?

PMJT: "There’s two pieces. First of all, we know that Canadian oil is discounted because we only have access to the U.S. market right now, and creating more access to overseas markets will actually get a better price for jobs, for workers, for the Canadian economy on our resources. So that’s one of the reasons why Alberta is so keen on not being landlocked with our oil resources.

But the other piece of why the Kinder Morgan pipeline is so important, is because approving that pipeline is part of what has allowed Alberta to put an absolute cap on oilsands emissions, and actually move forward on putting a price on carbon pollution in a way that actually will contribute to reaching our Paris targets.

"So in order to get the national climate change plan — to get Alberta to be part of it, and we need Alberta to be part of it — we agreed to twin an existing pipeline in order to get to work."

Q: So that raises the question as to when this decision was made. After your election, things moved very rapidly. Rachel Notley had already commenced or was commencing a very ambitious climate plan... You were going to Paris. Canada was setting very, very ambitious goals and you were working very much in unison and in harmony. Was Kinder Morgan part of that equation then?

PMJT: "It was absolutely part of the equation. Alberta, as we know — even Rachel Notley — was hopeful that the Northern Gateway pipeline... and/or the Kinder Morgan pipeline would move through.

... We realized that the Great Bear Rainforest and the Douglas Channel was no place to put pipelines and super tankers, but the well-serviced, industrial marine environment that is the busy Port of Vancouver, the Burrard Inlet — it is already well-served in terms of safety — we reopened the Kitsilano Coast Guard base. We’ve been having diluted bitumen go out through the Burrard Inlet for the past 30 years without significant issues. The pipeline has been there since 1953, but dilbit has been going through for the past 30 years. And that’s something that we know that we can continue to protect."

Q: So just coming back... by late 2015, you had already made the decision that if the NEB (National Energy Board) approved, you were going to go ahead?

PMJT: "Well it wasn’t just the NEB. We created an interim process that would address some of the failings we saw of the original Conservative NEB process, which was do much more Indigenous consultation, stronger science, much more community consultation to get a better sense of what we’re moving through.

It was always a question of, if we could move forward responsibly on the Kinder Morgan pipeline, then Alberta would be able to be ambitious as we needed Alberta to be and get on with the national climate change plan. And that’s exactly what ended up happening.

"Yes, they were linked to each other. Alberta right now is led by a premier who has done things that no premier has ever been able to do, and it was always a trade off... It all holds together and that’s something that always part of our approach."

Q: Elections change things, as we all know from history. You look back at the election of Clyde Wells and what that did to the Meech Lake Accord, the election of Rene Levesque — now we’ve had an election in British Columbia. Things have changed, the temperature has gone up very, very rapidly. But there’s also another potential change, which is that Alberta is going to have an election in 2019.

If Jason Kenney comes in and tears up all of these commitments, what happens to Kinder Morgan?

PMJT: “There is a real challenge around that. We created a national plan on fighting climate change that involves historic investments in our oceans, that involves getting our resources to markets through Kinder Morgan safely and securely, and involves a national price on carbon pollution.

So Brad Wall, in his opposition to the national plan on climate change, has been endangering or trying to prevent that national plan from going through, even though he likes the fact that it got pipelines approved. He doesn’t like the national price on carbon.

Similarly and frustratingly, John Horgan is actually trying to scuttle our national plan on fighting climate change. By blocking the Kinder Morgan pipeline, he’s putting at risk the entire national climate change plan, because Alberta will not be able to stay on if the Kinder Morgan pipeline doesn’t go through. And you will get politicians who are picking and choosing parts of the national plan they don’t like, and if we don’t continue to stand strongly in the national interest, the things that people don’t like within the agreement — which is always filled with compromises — are going to mean that there is no agreement, and there is no capacity to reach our climate targets."

Q: Let’s look at the legal B.C. situation briefly. There’s a fairly strong degree of opinion that this is the federal government’s exclusive jurisdiction such that the regulations Premier Horgan wants to bring in, probably would not survive.

So let’s give the federal government that. Let’s suppose that you’re successful in challenging anything Premier Horgan throws in your way. Let’s get back to the eventuality of a potential Premier Kenney, who says, ‘I don’t care about any of this. I campaigned on cancelling all of these agreements, and I’m going to do it.’ Where do you stand?

PMJT: "As we’ve seen from early reactions to what Brad Wall is trying to do, there is a federal backstop that will ensure that the national price on carbon pollution is applied right across the country. Whether there’s a made-in-Alberta plan like Rachel Notley put forward, or whether the provincial government wants nothing do with it, like Saskatchewan is proposing, we’re still going to collect the price on carbon in Saskatchewan and return that money to Saskatchewan, to the folks in Saskatchewan.

... Of course we’d rather do it with the provincial government, but we will do it whether or not the provincial government agrees. That’s within the federal jurisdiction, just like, as you point out, approval of pipelines in the national interest and protection of our oceans is in the (national) interest.

And in parenthesis, I spent my summers and time on the B.C. coast with my grandfather, who was the former minister of fisheries, sailing lessons off of Jericho Beach — I know those waters well. I love the B.C. coast. If I thought we were putting at risk the B.C. coast, we wouldn’t have approved this... It’s easy to pick at any little corner of a policy decision we take and take issue with it.

"It’s when you realize that all this ties together that we see what the national interest truly is, and that’s what we’re signing up for."

Q: Going back again, to the compelling national objective, excluding benefits to Alberta — how does the rest of Canada benefit from this agreement?

PMJT: "We get a national price on carbon. We meet out Paris targets. That’s a big piece of it. The next part of it is, for years, the Alberta economy and the boom in the Alberta economy, supported the rest of the country. Alberta has contributed significantly to the country’s economic well-being over decades and will continue to if they have jobs, opportunity and growth."

Q: That economy has been struggling over the recent past, but it is in recovery. There are new projects coming online. There is expansion happening, with or without Kinder Morgan. So the question is, how essential is that piece really to your national climate plan?

PMJT: "If the Kinder Morgan pipeline doesn’t go through, Alberta will withdraw its support for the national plan on climate change. We will not have them fighting to reach their carbon targets, and we will not then have them as partners in reaching our Paris targets.

We know that we need to active active leadership from across the country. Yes, the federal backstop means that there will be a price on carbon right across the country, regardless — but it becomes a lot more difficult when a key player like Alberta decides to turn its back on the fight against climate change. The issue that people are overlooking is, they all have to tie together.

"Right now, Premier Horgan’s attempts to block the pipeline are exactly lined up with Brad Wall’s attempts to stop the carbon tax."

Q: One wonders about the appropriateness of the NEB process, because that is fundamentally about safety and oil pipeline safety. The issue of climate change was not in its purview when this was begun, First Nations consultation is not something that is part and parcel with the NEB functions. There are a number of very key public policy issues that were not really an integral part of the NEB process.

I wonder if you would comment on the limitations of the NEB process in assisting the government to make its decision, when it by nature, has to consider all of these other factors?

PMJT: "Well we saw very clearly that Canadians did not trust the NEB process to actually get to the right decision and to care for our wellbeing and future for the long-term, and that’s why in the transitional phase, we had to add a lot of science, a lot of consultation, and a lot of working with Indigenous communities to be able to satisfactorily approve the Kinder Morgan pipeline through a transitional process.

But that’s also why, just days ago, we announced that we are completely transforming the environmental assessment process, to bring in those things you’re talking about, to make sure that people are confident that as we look at big projects, energy projects, we’re taking into account climate change, we’re taking into account upstream and downstream impacts, we’re taking into account the voices of people who have concerns.

That’s something we needed to restore in order both to get public trust in government’s ability to get the right things done in the right way, but also to reassure industry that there is a clear process so that when they propose things, they can actually be treated fairly and not politically, and they can actually make the arguments in a way that, if they make them the right ways, Canadians will accept."

Q: Isn’t that closing the barn door after the horse has bolted? In fairness to Kinder Morgan, they are a good faith applicant, they have gone through this process, they have expended an enormous amount of their own capital to do this, and now we are saying this process was flawed. This process was flawed from the beginning, and the public feels that too.

PMJT: The process that Stephen Harper set up was flawed, which is why, through a transitional process, we added to the Kinder Morgan evaluation process, the kinds of consultations, the kinds of science, that we are now demanding for all projects as of now, with the new system...

"So we actually managed to apply a better process to get to the Kinder Morgan decision."

Q: Would that include the ministerial panel that was struck to examine this process and to make recommendations?

PMJT: "The exact process I’m not entirely up on, I do know that we went through all the right steps, and we got to the right decision because it holds together, not just as a single project, but as part of a larger plan on fighting climate change."

Q: There was a ministerial panel struck with some extremely credible members on that panel, both from an environmental and from a First Nations, and from an economic point of view —

PMJT: "And they made a number of fairly strong recommendations and brought up some real criticisms on the process as well. And those are all things we took into account when we approved the Kinder Morgan pipeline."

Q: Your independent ministerial panel reviewing Kinder Morgan’s adequacy of First Nations consultation cited, in my reading, almost the exact same failings that Enbridge Northern Gateway suffered from, and that were ultimately fatal. Your government’s own internal memos indicate that most of the affected First Nations feel they didn’t have adequate consultation.

So my question is, have you obtained a legal opinion that Kinder Morgan’s proposal will survive a First Nations legal challenge?

PMJT: "We believe that it will because we have been working with — and this is one of the things — individual Indigenous communities are not monolithic. They all have different perspectives. We’ve got impact benefit agreements with 42 different Indigenous communities along the proposed twinning route and they are very supportive of this pipeline.

Others have concerns. Similarly, there were Indigenous communities who were very supportive of the Northern Gateway pipeline, who were disappointed we didn’t move forward on that one. So you’re always going to get people with different perspectives. Our concern is, are we working with the specific communities to allay the concerns they have?

"... We are working with each of them individually to ensure that we’re listening, we’re hearing their concerns and we’re working to counter those concerns, whether or not we ultimately get license from them to do it."

One of the elements of the Tsilhqot'in decision is, Indigenous peoples do not have a veto over pipelines, over projects like this. They need to be consulted, they need to be engaged with, they need to be heard and listened to, and there has to be significant efforts to accommodate, to build partnerships — but there is no veto."

Q: If I may, the Tsilhqot'in decision doesn’t give them a veto, that’s very true, but it does impose a fiduciary duty on the federal government. One of the complaints that the ministerial panel has outlined in quite extensive detail was that there wasn’t full disclosure. It isn’t just that the First Nations had concerns — they didn’t have information. There are bands along the Fraser River who were not informed, what is the emergency spill response? They couldn’t get this information.

But the decision has already been made. So I’m concerned that the courts are going to say that there was a failure to execute the fiduciary duty to get this information. Full consultation means full information as well, and full disclosure to the extent that that’s possible. I’m concerned that your government is going to be on thin ice there.

PMJT: "No, we have worked with Indigenous communities who have concerns. We are giving them the tools and the information that they need. Some of them are happy and are supportive. Some continue to have concerns. We continue to work with all of them to improve the capacity whether it’s spill response, whether it’s being able to continue to protect the land and respect the people on it. These are things that are integral to our government.

"The approach we have on reconciliation is one of respecting rights, it’s a rights-based approach. There are always going to be voices who will never be satisfied or never be on board with a particular difficult project…What we have to do as a federal government is make sure that we are hearing those voices, respecting those voices and acting in the interests of all Canadians and that’s exactly what we’re doing here."

Q: What’s the difference between hearing the voices and going ahead and not hearing the voices and going ahead?

PMJT: "Well the way you actually go ahead includes the concerns… if someone says I’m really concerned about what might happen with a spill here, we say ‘Okay, well let’s focus on what’s going to happen and how we’re going to counter those concerns.’ Even if it doesn’t mean that you’re suddenly going to say, ‘Yes I’m happy with it now,’ it will allay that fear around that specific issue, and that’s been a big piece of our approach on this.

Okay, what are your specific concerns, looking how we’re allaying those concerns. People are mentioning concerns around the southern resident killer whale pod, for example. Well there’s noise reduction, we’ve committed to no net new noise, we’ve committed to looking for habitat protection, looking at how we’re going to ensure food supplies.

These are the things we know we have to do. Now just because we do all the things to create better protections for marine mammals, doesn’t mean everyone is going to be convinced that the project is a good one, but everyone can be reassured that we’re doing more to address their concerns."

Q: One of the primary roles in the Canadian constitution and government, is peace, order and good government. Is it possible that by pursuing the Kinder Morgan pipeline in this manner — with what I think we’ve agreed is a flawed NEB process you’ve attempted to correct —

PMJT: "No, we actually did correct. We did the kinds of things that we now expect from the process. The process under Harper wasn’t good enough. We improved it, and through that process in a hybrid way, we were able to approve the Kinder Morgan pipeline."

Q: Still, the residue of lack of public trust and suspicion — the NEB fell under suspicion over the Energy East pipeline, when it was discovered that there had been panelists who had been having secret meetings with proponents — these are the things that lead the public not to have confidence.

You saw what happened in Nanaimo. The Kinder Morgan pipeline will face over a hundred Indigenous communities spanning hundreds of kilometres. People who have no stake, really, themselves in the outcome of what’s going to happen — they are not really going to see substantial benefit. They may see some short-term employment —

PMJT: "I think everyone benefits if we reach our climate targets and our Paris targets."

Q: I think that First Nations people along that pipeline route may not feel that that’s a pretty big benefit to them.

PMJT: "No, I’ve spoken with a lot of Indigenous communities who are very concerned about both the jobs that their kids are going to get, and the protection of the natural environment that surrounds us. Making sure we are actually able to reach our Paris targets, making sure we actually have a plan to reduce our carbon emissions is something that just about all Canadians care for, including Indigenous Canadians."

Q: If I may, I do think that whether you think that’s going to be satisfactory or not to them, you will face protests. You will face protests as the pipeline proceeds into the largest urban population in Canada. Two and a half million people live in the Metro Vancouver region. This pipeline is going to go right through an urban —

PMJT: "It already does. And it has for the past, 30 years."

Q: I’m talking about the number of people who are going to be out protesting. There’s the question of, is it politically achievable? What I’m asking you is, are you leading Canada into a quagmire? Are we going to see a combination of an Oka, and a War in the Woods?

Vancouver is the birthplace of Greenpeace. This is where Occupy Wall Street started. These are people who know how to drive and draw media attention.

PMJT: "Do you know what people in B.C. also know how to do? They know how to create responsible resource development that respects our environment. What was achieved in the forestry industry in B.C. is a good example of getting that balance right. There’s still more work to do, but people in B.C. understand that growing the economy and protecting the environment need to go together, perhaps better than just about anyone else in the country.

... The decision to approve the twining of a pipeline is an unavoidable element in a national climate change plan. Now, there are parts of that national climate change plan that prairie conservatives don’t like, they don’t like the national price on carbon. There are parts that certain people in B.C. don’t like, the Kinder Morgan pipeline for example. There may be other parts that other people have issues with.

But my job as a prime minister is to hold the country together and do the things that are right for all Canadians. The federal government has responsibility for protecting our oceans. That’s why we’re putting a billion and a half dollars into a world-class oceans protections plan that involves Indigenous communities, it’s investing in the coast guard in ways that have never been done before. The government has the responsibility for national energy projects that cross borders, provincial borders, that’s why we’re moving forward on ensuring that that pipeline is built safely and securely. The federal government has national responsibility for environmental issues, which is why we’re putting in a national price on carbon pollution.

"You can’t have all those things unless you have all those things together, that is the point."