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
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.