CLOS­ING AR­GU­MENTS

As the de­ci­sion date ap­proaches, Kim Baird’s voice will be the last one Ot­tawa hears be­fore it makes or breaks the Trans Moun­tain pipe­line

Alberta Oil - - FRONT PAGE - By Al­berta Oil Staff // Photo Peter Holst

The fu­ture of Cana­dian en­ergy de­vel­op­ment hinges upon pipe­lines, and the acid test of the Trudeau gov­ern­ment’s will­ing­ness to build them will be its Trans Moun­tain de­ci­sion in De­cem­ber. With the en­ergy reg­u­la­tor’s en­dorse­ment of the pipe­line now se­cured, all in­dus­try eyes have turned to Kim Baird, the un­of­fi­cial chair of the gov­ern­ment’s en­vi­ron­men­tal re­view panel, for the sec­ond-to-last word on the project

IT WAS STILL TWO DAYS BE­FORE

the Na­tional En­ergy Board was to an­nounce its ap­proval of the Trans Moun­tain pipe­line ex­pan­sion, but al­ready the fed­eral en­ergy reg­u­la­tor was tak­ing fire for an al­legedly flawed con­sul­ta­tion process. In those fi­nal hours be­fore the NEB’s an­nounce­ment, the gov­ern­ment of Prime Min­is­ter Justin Trudeau an­nounced its own re­view panel to an­swer those crit­ics. It was the ful­fil­ment of an ear­lier prom­ise

made af­ter abo­rig­i­nal and en­vi­ron­men­tal groups com­plained that the NEB had not suf­fi­ciently con­sulted with abo­rig­i­nal com­mu­ni­ties along the pipe­line route or taken into ac­count the pipe­line’s up­stream car­bon emis­sions, and that its coastal ter­mi­nus in­fra­struc­ture was in­suf­fi­cient.

Ot­tawa an­nounced its three-mem­ber en­vi­ron­men­tal re­view panel for the Trans Moun­tain pipe­line on May 17. When it did so, one name stood out from those of for­mer Yukon premier Tony Penikett and for­mer Al­berta deputy fi­nance min­is­ter An­nette Trim­bee. It was Kim Baird, the six-time elected chief of the coastal Tsawwassen First Na­tion near Van­cou­ver, and a con­sul­tant on abo­rig­i­nal eco­nom­ics and governance. Baird’s spe­cial­iza­tion in in­dige­nous is­sues makes her the panel’s most im­por­tant voice on the pipe­line’s most im­por­tant ob­sta­cle—abo­rig­i­nal buy-in. She’s the of­fi­cial spokesper­son for the panel and her col­leagues have made Baird their un­of­fi­cial chair. And with the NEB’s thumbs-up on tripling the ca­pac­ity of the 1,150-kilo­me­ter pipe­line from Ed­mon­ton to Van­cou­ver now se­cured, the voices of Baird and her fel­low pan­elists will be the last ones the Trudeau gov­ern­ment hears be­fore mak­ing its de­ci­sion by the end of the year. Al­berta Oil: How does the re­cent Fed­eral Court of Ap­peal de­ci­sion to re­ject the North­ern Gate­way pipe­line af­fect the process with Trans Moun­tain? Kim Baird: The con­struc­tion of en­ergy projects faces much un­cer­tainty now. The oil and gas in­dus­try is fac­ing change as it has had to ad­just to low com­mod­ity prices. Ev­ery­one ad­mits that Canada’s tran­si­tion from a car­bon econ­omy to a greener low-emis­sion econ­omy is inevitable, but no one knows ex­actly how long the tran­si­tion will take or what role gov­ern­ment and in­dus­try will take in the tran­si­tion. There are also changes hap­pen­ing within the reg­u­la­tory en­vi­ron­ment with the fed­eral gov­ern­ment look­ing to over­haul ex­ist­ing reg­u­la­tory pro­cesses in Canada. So this [Trans Moun­tain] min­is­te­rial panel is an in­terim mea­sure be­cause the broader re­forms will take time to com­plete. There are many ques­tions about what the scope of the as­sess­ment of these projects should in­clude. And, fi­nally, First Na­tions rights are also an evolv­ing area. The re­cent court de­ci­sion on North­ern Gate­way fo­cused on the need for proper con­sul­ta­tion with First Na­tions im­pacted by these projects. Many court chal­lenges have al­ready been launched in re­sponse to the NEB de­ci­sion on Trans Moun­tain. There is much dis­agree­ment over the best ap­proach to man­ag­ing the en­vi­ron­ment and the econ­omy. All these fac­tors, and more, are what the fed­eral cab­i­net will have to con­sider when mak­ing a fi­nal de­ter­mi­na­tion on the Trans Moun­tain pipe­line ex­pan­sion in De­cem­ber.

What spe­cific ex­pe­ri­ence in ne­go­ti­at­ing ma­jor de­vel­op­ment projects with abo­rig­i­nal groups do you bring to the panel? I was the elected chief of the Tsawwassen First Na­tion from 1999 to 2012. I ne­go­ti­ated and im­ple­mented B.C.’s first mod­ern ur­ban treaty on April 3, 2009. I ne­go­ti­ated a land agree­ment and treaty land claim with the fed­eral and pro­vin­cial gov­ern­ments that led to over $1 bil­lion be­ing in­vested in a mall project, res­i­den­tial real es­tate and ware­hous­ing. I know a lot about lo­cal com­mu­nity is­sues. I spent six years on [elec­tric­ity provider] BC Hy­dro’s board, which in­cluded over­see­ing ma­jor en­ergy projects in con­junc­tion with many First Na­tions.

But, no, I don’t have oil ex­pe­ri­ence. How­ever, I was on a lead­er­ship ex­change with Ian An­der­son, Kin­der Mor­gan’s CEO, through the In­dus­try Coun­cil for Abo­rig­i­nal Business. Six of us con­vened for two days. I then went into Kin­der Mor­gan’s world for two days in Cal­gary and Ed­mon­ton and sub­se­quently, Ian An­der­son came to Tsawwassen for two days and saw us con­duct some of our business. He’s pub­licly stated that he learned a lot about First Na­tion is­sues from this ex­pe­ri­ence. So I think the Min­is­ter of Nat­u­ral Re­sources [Jim Carr] se­lected me for the panel be­cause of my un­der­stand­ing of in­dus­try, en­vi­ron­ment and First Na­tions.

With­out pre­sup­pos­ing the out­come of your find­ings, what do you en­vi­sion as the main pur­pose of the en­vi­ron­men­tal re­view panel? The panel’s main job is to hear out­stand­ing con­cerns that peo­ple feel weren’t ad­dressed in the NEB process. In the longer term, the fed­eral gov­ern­ment will pro­vide an over­haul to these pro­cesses, so this is a tran­si­tional mea­sure for an ex­ist­ing project un­der re­view. The panel’s job is not to repli­cate the NEB process or im­ple­ment Crown con­sul­ta­tions with in­dige­nous groups. Our job is to lis­ten to out­stand­ing con­cerns by cit­i­zens. We won’t ex­clude any­one if pos­si­ble. Then our re­port is due Novem­ber 1. Once we’ve

Kim Baird spoke with Al­berta Oil re­cently about how she rec­on­ciles the de­mands of en­vi­ron­men­tal pro­tec­tion, in­dige­nous rights and the Cana­dian econ­omy.

handed it over, the gov­ern­ment is sup­posed to make a de­ci­sion by the week of De­cem­ber 16.

Does the panel take into con­sid­er­a­tion the NEB’s Trans Moun­tain re­port and its 157 con­di­tions for ap­proval? What about the B.C. gov­ern­ment’s own in­de­pen­dent re­port? We are very in­ter­ested in the NEB re­port, but our main job is to hear out­stand­ing con­cerns—we can’t make de­ci­sions. We’re go­ing to cover what­ever peo­ple con­vey to us, and we think it is likely that is­sues such as up­stream green­house gas emis­sions will be raised, as well as pos­si­ble tanker spills. Be­cause the NEB looked only at the di­rect im­pact of the pipe­line, its po­ten­tial for spills and its own emis­sions, we know peo­ple be­lieve the process should have dealt with these and other is­sues too. Many peo­ple are say­ing that the po­ten­tial in­crease in ex­trac­tion re­sult­ing from the pipe­line didn’t trig­ger the same scru­tiny that the con­struc­tion of the pipe­line it­self did, and like­wise the in­creased ship­ping does not trig­ger the same type of scru­tiny—and they think it should. These and other con­cerns that were out­side the NEB’s scope will be raised. Our terms of ref­er­ence are clear: to hear and con­vey con­cerns to the min­is­ter. It re­mains to be seen if we will be do­ing any anal­y­sis and it’s hard to pre­de­ter­mine any out­comes of the work of the panel.

And yes, the B.C. gov­ern­ment is do­ing its own as­sess­ment and it has five con­di­tions the pipe­line must meet be­fore it gives its con­sent. I am un­sure if Bri­tish Columbia has any sort of veto power on this project. As a panel, we have done some preen­gage­ment ses­sions with the Al­berta gov­ern­ment, Kin­der Mor­gan and the NEB, and we have in­vited the B.C. gov­ern­ment to also meet with us for a preen­gage­ment ses­sion.

Re­cent Supreme Court rul­ings, such as the Tsil­hqot’in Na­tion v. Bri­tish Columbia de­ci­sion, sug­gest that, more than just be­ing a part of a con­sul­ta­tion process, First Na­tions have to grant con­sent to de­vel­op­ment projects on their tra­di­tional lands. From your ex­pe­ri­ence as a chief, what does that en­tail? I think the def­i­ni­tion of con­sent is evolv­ing in case law. It is un­known if this means that First Na­tions can veto projects. In a gen­eral con­text, most com­pa­nies and First Na­tions try to work to­wards con­sen­sus on how a project might pro­ceed. Con­sen­sus is not al­ways pos­si­ble. Al­most any ma­jor project in B.C. has un­cer­tainty. My per­sonal opin­ion is that the lack of rec­on­cil­ing abo­rig­i­nal rights and ti­tle with the Crown is the main rea­son why there’s this un­cer­tainty. And this un­cer­tainty will con­tinue un­til these rec­on­cil­i­a­tion is­sues are re­solved.

What’s the dif­fer­ence be­tween treaty land and tra­di­tional land? There are his­toric treaties in north­east­ern B.C., on Van­cou­ver Is­land and in Al­berta. Few B.C. na­tions now have mod­ern treaties, but my [Tsawwassen] na­tion was the first. The his­toric treaties are quite vague, so there are is­sues of in­ter­pre­ta­tion; many were only a page long. In con­trast, the mod­ern treaties are more like 300 pages. For the ma­jor­ity of First Na­tions in B.C., there are no treaties. So com­pa­nies and gov­ern­ment have to ad­dress and try to lessen the im­pacts to the tra­di­tional ter­ri­to­ries of First Na­tions. This of­ten leads to eco­nomic ben­e­fit agree­ments be­tween in­dus­tries and First Na­tions, but they also have to ad­dress and mit­i­gate any en­vi­ron­men­tal im­pacts that can dis­rupt abo­rig­i­nal rights. These rights aren’t fully de­fined and are evolv­ing through case law and ne­go­ti­a­tions. These are very com­plex is­sues and the ab­sence of set­tled rights cre­ates great un­cer­tainty in B.C. How these is­sues get re­solved is an area that con­tin­ues to evolve.

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