Trans Mountain expansion: The First Nations factor

Warnings of larger protests and further court action
Reuben George, Sacred Trust manager with the Tsleil-Waututh Nation: “We’ll do what it takes, legally; we’ll do what it takes, period” | CNW Group/Tsleil-Waututh Nation 

Part 4 of a special project in partnership with JWN Energy Group

There are 133 First Nations living along or near the Trans Mountain pipeline corridor in Alberta and B.C., 40 of which have granted their support for the project and signed benefits agreements.

“We have the vast majority of the right-of-way communities impacted by this project supporting it,” Kinder Morgan Canada president Ian Anderson recently told the Greater Vancouver Board of Trade. “We have far more support in aboriginal communities than we have opposition.”

But the one First Nation that is arguably the most important, the Tsleil-Waututh, has been unwavering and unanimous in its opposition to the pipeline-twinning project, and has been successful in rallying public support to its cause.

Other Lower Mainland First Nations – the Musqueam, Squamish and Kwantlen – are also opposed to the project, but none have been as vocal as the Tsleil-Waututh, which is not surprising given where they live.

The Trans Mountain pipeline terminates in Tsleil-Waututh territory on Burrard Inlet, where the Westridge Marine Terminal is located and which would receive 34 oil tankers per month, if the twinning project is approved.

Fighting the pipeline has become something of a full-time occupation for Reuben George, grandson of the late Canadian actor Chief Dan George.

Although he’s not an elected band member, George has the backing of the elected council and is manager of the Sacred Trust, a campaign devoted to opposing the pipeline’s expansion

Reuben is confident the Tsleil-Waututh would win a legal battle, if it comes to that, based on numerous legal precedents affirming First Nations’ rights and title in unceded territory.

“We’ll do what it takes, legally; we’ll do what it takes, period.”

The Tsleil-Waututh and five other First Nations have filed for judicial reviews on the pipeline expansion, a number of which were dismissed by the Federal Court, although there are still other legal challenges they can launch, if the project is approved.

A succession of Supreme Court of Canada decisions over the last 30 years have incrementally strengthened the position of First Nations with respect to having a say on resource development in their traditional territories.

But contrary to popular opinion, nothing in Canadian law gives First Nations a veto over projects deemed to be in the greater public interest, says Robin Junger, a McMillan LLP lawyer specializing in aboriginal law. Even reserve or treaty land can be expropriated for things like roads and pipelines.

“The bottom line is that our courts – right to the Supreme Court of Canada – have made very clear that aboriginal rights must be taken seriously, but they’ve made equally clear that aboriginal groups do not have a veto,” Junger said.

The United Nations Declaration of the Rights of Indigenous People (UNDRIP), which requires “free, prior and informed consent” for resource development, is not enshrined in Canadian law and is considered more of a statement of principle. But the Trudeau government made a show of formally endorsing the declaration in May at the United Nations, setting up an expectation among First Nations that they would, in fact, have more say over resource development in their territories.

But just two months later, in July, Jody Wilson-Raybould – the B.C. Kwakwaka’wakw First Nation MP and federal justice minister – told the Assembly of First Nations the UNDRIP is currently “unworkable” within Canada’s constitution and Indian Act.

“So as much as I would tomorrow like to cast into the fire of history the Indian Act so that the Nations can be reborn in its ashes, this is not a practical option. Which is why simplistic approaches, such as adopting the UNDRIP as being Canadian law, are unworkable and, respectfully, a political distraction to undertaking the hard work required to actually implement it,” she said.

Lack of veto power may have led 40 First Nations along the pipeline route to sign benefits agreements and formally write to the NEB in support of the project.

The Tk’emlups te Secwepemc (Kamloops Indian Band), for example, originally opposed the project. But in a letter of support submitted to the NEB, the First Nation withdrew its original opposition. So have the Nicomen Indian Band, near Lytton, and the Yale First Nation in Hope.

First Nations leaders in communities that signed benefits agreements are sometimes reluctant to speak publicly about their decision to back the project, for fear of criticism – both within their own communities, which can be divided, or from neighbouring First Nations.

By signing agreements, some First Nations say they will at least have some input on mitigating impacts, and realizing benefits.

For the Yale First Nation, a benefits package was hard to turn down. The band had hoped that a treaty would have provided economic development opportunities in an area hit hard in recent decades by a decline in resource industries like mining and forestry.

But those hopes evaporated when the band decided against implementing a treaty. Along with the treaty vanished whatever benefits might have flowed from it.

So, there was pressure to accept a benefits agreement in exchange for formally supporting the pipeline expansion.


Trudeau approves Trans Mountain pipeline, kills Northern Gateway

Trudeau approves Trans Mountain and Line 3 replacement project, rejects Northern Gateway
Prime Minister Trudeau at press conference announcing decisions on three pipeline proposals.

Prime Minister Justin Trudeau has made good on his election promise to kill the $7.9 billion Enbridge Inc. (TSX:ENB) Northern Gateway pipeline project and has approved the $6.8 billion Trans Mountain pipeline expansion.

Trudeau also approved Enbridge's Line 3 pipeline replacement project, which runs from Alberta to Wisconsin.

Within minutes of the announcement, environmental groups were sending out press releases essentially declaring war.

In defending his decision at a November 29 press conference in Ottawa, Trudeau said no country in the world with Canada's oil reserves would leave it in the ground. He said his government was committed to creating jobs and economic growth, while protecting the environment. He said the decision was based on science, not politics.

"This project will get built because it's in the national interest of Canadians," he said of the Trans Mountain expansion. He also said "it meets the strictest environmental standards."

Trudeau added that oilsands production will continue to grow and that modern pipelines are safer and less emissions intensive than moving oil by rail.

"This project will get built because it is in the national interest of Canadians," he said, in response to questions about the opposition to Trans Mountain in British Columbia.

In announcing that it would not continue with the Northern Gateway project, Trudeau also announced a moratorium on oil tanker traffic on the North Coast of B.C.

Art Sterritt, a spokesman for the Gitga'at First Nation, which led the legal battle against Northern Gateway, said he was thrilled both with the decision to reject Northern Gateway and the decision to implement a moratorium on all oil tanker traffic on the north coast.

“We were concerned that it would have been just a moratorium on bitumen, but all crude oil, whether processed or not, is now going to be officially banned from that region,” Sterritt said. “That’s a big deal for us.”

He added it’s not just a relief for the Gitga’at, but should be a relief for the B.C. government as well.

“The province will be very happy because they don’t have to make a decision,” he said. “The federal government has made the decision for them.”

He referred to the fact that the BC Supreme Court ruled that the B.C. government could not abrogate its responsibilities to federal regulators. The court ruled that the B.C. government would need to issue its own environmental certificate for the Northern Gateway project, which would have meant consultation with the affected First Nations.

The decision to kill the Northern Gateway pipeline project was not unexpected. In fact, many observers considered it as a move necessary to set the stage to approve the Trans Mountain pipeline. Other set pieces include a national carbon pricing scheme and the recently announced $1.5 billion in funding to improve Canada's oil spill prevention and response capabilities.

Trudeau had been telegraphing his intent to kill Northern Gateway even before the election, when he said the Great Bear Rain Forest was no place for a pipeline (meaning Northern Gateway) but generally supported other pipeline projects, like the Keystone XL, which could now be resurrected under a Donald Trump White House.

Reacting to Tuesday's announcement, Todd Nogier, manager of enterprise corporate communications for Enbridge, said the company was "pleased" with the approval of the Line 3 project, but disappointed with the decision on Northern Gateway.

He noted that the decision affects not just Enbridge, but 31 aboriginal partners along the pipeline corridor, who had partial ownership in the project and now stand to lose out on $2 billion worth of economic benefits.

"In advancing Northern Gateway, we relied on a process that saw the federal government approve the project," Nogier said. "The Federal Court of Appeal then found that the federal government failed to properly consult Indigenous communities, but affirmed our engagement on the project.

"Given today’s decision, we’ll need to assess our alternatives which we’ll do in consultation with our partners, including our Aboriginal Equity Partners."

Ian Anderson, president of Kinder Morgan Canada, said the decision to approve Trans Mountain was "a defining moment for our project and Canada’s energy industry."

“This decision follows many years of engagement and the presentation of the very best scientific, technical and economic information.  We are excited to move forward and get this project built, for the benefit of our customers, communities and all Canadians.”

Although it was in the works long before the Trans Mountain expansion project, as a greenfield project that would require building a new pipeline across mountain ranges to Kitimat, Northern Gateway was fraught with environmental and First Nations opposition from the get-go. Even the B.C. government opposed it, despite its promise of 3,000 construction jobs and 560 permanent jobs.

The Joint Review process for Northern Gateway began in January 2012. The project was approved, with 209 conditions, under the Stephen Harper government in 2014.

But First Nations were successful in a court challenge, when the Federal Court of Appeal ruled that federal officials had not properly consulted several First Nations along the line, and quashed an Order in Council approving it.

That meant the federal government would have to do further consultations with the First Nations affected by the pipeline – something Trudeau announced Tuesday it was not prepared to do.

It’s been reported that Enbridge has spent $500 million just trying to get Northern Gateway approved.

Given that it was approved by federal regulators, and given that the failure to consult with First Nations was a failing of the government, not Enbridge, the government’s decision to kill the project raises the question of whether the company could now sue the federal government for killing a project that had been approved by the proper regulatory organizations.

Ironically, that might be more of an option under international trade treaties like NAFTA, if it weren’t for the fact that Enbridge is a Canadian company, according to Robert Wisner, a partner at McMillan LLP who specializes in international arbitration.

“Enbridge is a Canadian company and therefore can't sue Canada under NAFTA,” he said. “It's possible that American shareholders of Enbridge could sue, but they would need to show that Northern Gateway was directly linked to the success of their investments in Enbridge.”

The Trans Mountain pipeline has met with pushback in B.C. from First Nations, environmentalists and municipal politicians, including Vancouver Mayor Gregor Robertson and Burnaby Mayor Derek Corrigan. Corrigan has even said he would risk arrest to protest the expansion.

Asked how he could approve the Trans Mountain in the face of such strong opposition, Trudeau said his government would not be swayed by political arguments, including by some of his Liberal government's own MPs, some of whom have spoken against the Trans Mountain pipeline – including Terry Beech, Liberal MP for Burnaby-North Seymour.

"We have not been and will not be swayed by political arguments, be they local, regional or national," Trudeau said.


Councillor dumps on Vancouver City Hall promotion prizes

City hall fails to support locally owned businesses again: Affleck
The Leaky Toilet Test | Image: City of Vancouver

NPA Coun. George Affleck calls the ill-conceived sourcing of prizes for a Vancouver City Hall contest yet another reason why the majority party should be flushed from office.

“Has Vision Vancouver jumped the shark here on ideas for the Greenest City Action Plan?” said Affleck about the Leaky Toilet Test.

City hall is encouraging Vancouverites to drop food colouring or a test strip in their toilet tanks. If, after 15 minutes, the bowl becomes coloured, then the toilet is leaking and the flappers need replacing. Residents who send photos of their toilet bowls or tanks to city hall by December 9 will be entered in a contest for a year’s supply of toilet paper or reading material. The city claims that toilets can leak up to 135 litres per day and it wants to reduce per capita water use 33% from 2007 levels by 2020.

City hall spokesman Tobin Postma told BIV that prize number one is actually a $450 Home Depot gift card and there are two number two prizes of $30 Chapters gift cards. Winners will be chosen by random draw.

The promotion, however, coincides with the November 28-to-December 4 B.C. Buy Local Week. Affleck said gift card values are a drop in the bucket compared with the city’s overall budget, but the sources are symbols that those in power have reached the end of the roll.

“Those are two non-Vancouver, non-B.C. based companies,” Affleck said. “It’s not a lot of money but, hey, every penny counts in the world of business. Smaller businesses would’ve loved to have been a part of this and provided the benefit of having your toilet not leak.”

Two of Atlanta-headquartered Home Depot’s (NYSE:HD) 2,276 stores are in Vancouver. The company reported $88.5 billion sales and $7 billion profits in 2015. Chapters is a division of Toronto-based Indigo Books and Music Inc. (TSX:IDG), which operates stores under six brands. Three of its 213 stores are in Vancouver. The company reported $994 million revenue last year and net earnings of $28.6 million.

Check out BIV’s podcast for the week of November 23, 2016:


B.C. speculators pour into Calgary

Vancouver developers spearheading some of the largest commercial and residential condo projects in the troubled Alberta city
Vancouver-based Qualex-Landmark’s new $110 million Park Point condo tower in Calgary represented the fourth-largest concrete pour in the city’s history | Photo: Rob Moroto

British Columbia real estate developers are betting big on a Calgary recovery, spearheading the biggest speculative plays in Alberta’s biggest city.

The gambles are taking place while nearly a fifth of Calgary’s downtown office towers have gone dark, condo starts have fallen 60% in the past year and residential foreclosures have soared 30% from two years ago. Analysts contend Calgary real estate values could fall further unless oil prices rally from their current eight-year lows.

Spec leaders include Vancouver-based Qualex-Landmark, which just completed the fourth-largest concrete pour in Calgary history when it started its 34-storey, $110 million Park Point condo tower in the Beltline area.

Approximately 1,200 cubic metres of concrete was poured continuously, spanning 14.5 hours on November 19. There were approximately 130 concrete deliveries made to the Park Point site with 25 trucks running in rotation.

Blocks away, Vancouver-based Embassy Bosa has broken ground on a 500-unit twin-tower condominium project, a joint venture with RioCan Real Estate Investment Trust that will complete in 2018.

Meanwhile, Hungerford Properties and Beedie Development Group, both based in Vancouver, have started work on speculative industrial and office developments.

Hungerford’s Fairmore Business Park is one of three recent commercial condo developments by Hungerford, and the only new office and warehouse project started in south central Calgary this year.

Beedie Development Group has three industrial condo developments under construction in the Calgary region, including its Highland Common Business Centre in suburban Airdrie, approximately 15 minutes from Calgary’s downtown.

With pricing starting at $165 per square foot, Jorden Dawson, Beedie’s director of industrial development in Calgary, said they are seeing a lot of interest and activity. “A lot of [Calgary] businesses see the value in owning their own facility,” he said.

Other investors are apparently circling Calgary’s commercial real estate market. Total sales of commercial property in the third quarter of 2016 reached $671 million, a 46% increase compared with the same period in 2015, according to Altus Group.

Check out BIV’s podcast for the week of November 23, 2016:


Canadian businesses set to score in China’s emerging hockey industry

Beijing’s drive to boost hockey culture before the 2022 Winter Olympics brings overseas opportunities

Hockey, the sport that periodically pauses play to allow players to fight, is now helping foster diplomatic and business relations between Canada and China.

In its preparations to host the 2022 Winter Olympics, China has asked for Canada’s assistance to help strengthen the country’s hockey culture and its  hockey capabilities.

“In terms of winter sports, China has never been very strong, said Linda Qian, postgraduate research fellow for the Asia Pacific Foundation of Canada. “So now that Beijing has won the bid for the 2022 Olympics, it’s really trying to increase the awareness of winter sports, especially the major games like hockey, figure skating and different skiing events. They are hoping to get more youth involved in these sports and have more athletes ready by 2022.”

In September 2015, Vancouver was one of the first cities the Chinese Olympic delegation visited to gain insights about hosting the Games. Earlier this year, China’s national women’s hockey team, the Lady Dragons, played an exhibition tournament called Harmony Through Hockey against four British Columbian teams including the University of British Columbia Thunderbirds. The Lady Dragons also received training from hockey hall of famer Glenn Anderson and former Vancouver Canuck Cliff Ronning. This is all part of an effort by the Canada China Sports Foundation to help China ready itself for the 2022 winter Olympics by tapping into Vancouver’s wealth of hockey knowledge.

Qian said China’s growing hockey fandom can benefit Canadian businesses by creating new market opportunities. Canadian business can provide the new industry with expertise, and Canada has already left its mark on the emerging Chinese hockey industry by sending players to China to run training camps.

“Hockey franchises in Canada can start marketing and promoting hockey in China because the market there isn’t saturated at all, so there’s a lot of space for businesses that are experienced in this to make a footing in China,” Qian said.

Some National Hockey League (NHL) teams – among them the Vancouver Canucks and the Boston Bruins – have already recognized the potential of the untapped hockey market in China and are trying to stake their claim to the emerging industry.

In Canada, Hockey is a $11 billion industry that generates $1billion annually in tourism revenue alone, according to a study by Ohio University commissioned by Scotiabank and Canadian Tire. A growing Chinese fan base could provide international growth potential for hockey-themed businesses in Canada.

According to Qian, much hockey equipment is already produced in China, but there is a lack of distributors within the country to sell the product domestically. Qian says this may present an opportunity for Canadian business to step in.

Canada’s role in the emerging market will likely be more focused on exchanging intellectual and human capital rather than on goods and products. Qian said education, training and logistics including management and promotion are likely the best market opportunities for Canadian businesses.

“You would probably see the growth of hockey as a sport in China as a benefit for any company in Canada that’s making hockey goods or providing services related to hockey because Canada’s actually seen as one of the hockey meccas in the world,” said Justin Elavathil, the Asia Pacific Foundation of Canada’s program manager in charge of trade, investment and innovation.

Qian said China’s growing hockey interest can have benefits for Canada outside of business. She highlighted the opportunity for cultural exchange and co-operation as positive for diplomatic relations.

“I’m sure there will be a bigger push towards China by the NHL given that the NBA has been so successful,” she said. “Even coaches from Italy for soccer have been offered 15 million pounds to coach the Chinese soccer team. So if hockey is really on China’s agenda then I think the NHL could really jump on this opportunity to branch out in China.”


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