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  • Dear Justin and Rachel…

    Briony Penn

    Charged with criminal contempt of court while protesting the Trans Mountain pipeline, the author writes to Prime Minister Trudeau and Alberta Premier Notley about leadership.



    You might want to review the recent case of a Massachusetts judge who recently found that protesters were “not responsible by reason of necessity” for stopping the building of a pipeline “because the action was taken to avoid serious climate damage.”

    I, as one of the 200-plus—and growing—arrestees, was also acting out of necessity when I stood in front of the Kinder Morgan gates on Tsleil-Waututh territory. We arrestees, like other protestors from Massachusetts to Standing Rock, and Kitimat to Kalamazoo, are acting in the national—no, actually—the global interest. We are trying to prevent the crime of the millennium—stopping what BC energy economist Mark Jaccard calls, “the single biggest reason we will not meet our climate targets.” Targets that are essential to realize for our well-being on this planet.



    Briony Penn being arrested for protesting Kinder Morgan's Trans Mountain pipeline expansion


    I seem to remember that you were going to listen to people like Jaccard who provide evidence-based arguments. Jaccard, along with US climate scientist Professor James Hansen, knows what he is talking about. That is why he and Hansen were called up as expert witnesses to testify in front of the British House of Commons. Here is what they told those MPs: “If you are trying to hit that 2°C limit, you don’t dramatically develop resources like Canada’s oil sands, tar sands, or the heavy oil in Venezuela or in several other jurisdictions.”

    The reason I bring this up is that over in the UK, quite a few people have been listening to their testimony, including Mark Carney, now the head of the Bank of England. I think he has learned a few more things about international banking since he left the Bank of Canada. He and former New York mayor Michael Bloomberg have formed a task force on risk from climate change, that your minister, Catherine McKenna, attended. I’m sure that she heard them tell the world that Canadian banks are too heavily invested in the fossil-fuel sector, and that doing so undermines “the country’s leadership on climate.”

    One of their imperatives is for companies to disclose risks to their business from climate change as the world transitions to a lower-carbon economy. Kinder Morgan didn’t pass the test of full disclosure. According to a lot of credible energy economists, whether Jaccard, Robyn Allen (ex-CEO of ICBC), Carney or those with the Minnesota Department of Commerce who were reviewing the market analysis of Kinder Morgan for another one of their projects, the company has not accurately modelled the demand for global crude and its overseas price. Even Jeff Rubin, former chief economist at CIBC, was quoted in the Financial Post saying that the claim that the additional pipeline capacity to BC will “unlock higher prices is not corroborated by either past or current market conditions.”

    But whenever I listen to you, all you cite is Kinder Morgan’s figures for revenue and jobs, and none of these risks. So who is acting in the national interest? Who is following science?

    I am pretty careful about sources in energy reporting, because the reporting is generally appalling, even to the industry itself. EnergiNews states, “Is there a branch of journalism these days more politicized than energy reporting and opinion?” What we do get from you is political opinion. I’ve heard you make comments like, “Most First Nations along the route are strongly in support.” When I trace your sources I end up at one of energy columnist Claudia Cattaneo’s Financial Post pieces. Even the oil patch doesn’t trust Cattaneo. EnergiNews says “reading her is as cringe-inducing as fingernails on a chalkboard.” American Energy News dubs her “everyone’s favourite oil and gas shill.” It’s disturbing to hear you chanting from the same song book as her.

    Speaking of the media, even the CBC failed to accurately report a protest of 10,000 people until pressured to, and instead gave more coverage to a tiny pro-pipeline industry-sponsored rally. Only the two members of Parliament—from amongst the hundreds of arrestees—have ever been interviewed.

    Perhaps noticing that, Kinder Morgan got choosy about who they arrested on April 7. Grand Chief Stewart Phillip, head of the BC Union of Indian Chiefs, was viewed as more of a liability as an arrestee than standing in front of their gate, so he was not arrested. He would condemn you for “brazenly and arrogantly ignor[ing] First Nations rights.” He would state, “Now is the time to stand beside Indigenous people in support of our timeless struggle to defend Mother Earth. This is about water versus oil and life versus death, and ultimately, survival versus extinction.”

    There are 14 court cases currently being brought by First Nations, municipal governments, and the provincial government. This includes evidence going back to 2007 when a Kinder Morgan leak occurred in Burnaby. That was the same year the company first voiced their ambition to ramp up bitumen exports out of Burnaby, when the rejection of the Northern Gateway appeared likely.

    Much was learned by legal teams during the judicial review of the Northern Gateway project. Now there are opinions and precedents with seasoned lawyers honing complex legal arguments that will delve into: aboriginal rights both under treaty and outside of treaty; cases about jurisdictional matters between federal, provincial and municipal governments; validity of economic cases put forward by the company; liabilities once the bitumen leaves the pipes and gets into tankers; evaluations of claims of “world-class” clean up standards; incursions on federal legislation like the Species at Risk Act; the behaviour of bitumen; the inability of meeting federal emission targets with this kind of investment; the relationship with Washington state; and on and on.

    There is much of value to report on, but again the media fails. In a CBC analysis by Calgary business reporter Tony Seskus, he mentions five things to know about the Trans Mountain pipeline battle: not one of them is the court challenges or what they are about.

    Bob Chamberlin, vice-president of the Union of Indian Chiefs, who represents more than half of the 198 First Nations in the province, responds with the kind of analysis that American Energy News might appreciate. “[First Nations] have the authority to make decisions and this is a complex discussion. It is not where the [federal government] can pick favourites, divide and conquer as they always have.”

    Who are the “favourites” that the oil industry holds up in its media? The Financial Post loves citing BC Liberal politician Ellis Ross of the Haisla Nation. This is not the kind of non-partisan opinion that is going to instill confidence in investors.

    Within the complexity that Chamberlin refers to are three forms of governance which produce different “leaders”: traditional governance models under hereditary systems which vary with every community; the elected chief and council that liaise with colonial governments as defined under the Indian Act; and combinations of the two. For example, the Heiltsuk Tribal Council official governing body includes both the Hemas (hereditary Chiefs) and the Heiltsuk Tribal Council (elected leaders). Back in Enbridge days, an editorial team from the CBC erred in not doing their homework about alleged negotiator Elmer Derrick, his ability to represent the Gitxsan Nation, and his connections with industry, before leading with his story supporting Enbridge. On Haida Gwaii where a similar model exists, traditional governance systems dealt with the pressures of oil industry bribery by having two hereditary chiefs stripped of their names for signing a letter in support of Enbridge as if they represented the Haida at large, who opposed the project. A business or energy reporter, especially with no experience in these communities, is unlikely to understand or communicate the significance of these kinds of events to their readership, and the implications for rights and title.

    That is why there is such a focus on the courts, where evidence is painstakingly provided as to the legitimacy of leadership and the proof of free, prior and informed consent. It is a slow, complicated business. The Tsilhquot’in case took 26 years. But the courts can be trusted more than the press who lead daily with opinion—or the politicians.

    Canada operates under the rule of law. So it is disturbing to many of us to hear you, Mr Trudeau, saying “this pipeline will be built” when the courts have not decided key questions about it. Elizabeth May, during coverage of her arrest, said, “There are constitutionally enshrined rights of Indigenous peoples in this country. They are embedded in the constitution. No legislation can say that federal jurisdiction over interprovincial pipelines is paramount to the extent that it dissolves the rights of Indigenous peoples.”

    If you are about to invest two billion of our dollars in this industry, besides needing clarity on First Nations rights and leadership, you will also need understanding about what the “mutual benefit agreements” with some First Nations mean. Some are Letters of Understanding, some provide funding to do research on impacts in order to come to a decision, some are Term Sheets (a nonbinding template for a legal agreement). Most are agreements that if the project proceeds, then the community would wish to secure economic benefits. They do not mean that the project is supported.

    The “divide and conquer” that Chief Chamberlin refers to are the divisive electoral tactics, misrepresentation, fraud, and use of debt and bribery on the smallest, most vulnerable nations. If you’re serious about truth and reconciliation, you better take a deep hard look at divide-and-conquer colonialism. Unfortunately, it doesn’t seem to be on your radar. Instead we get more spin and charges that environmental protesters are “eco-colonialists” and that there’s a rift between them and First Nations. When I was on the unceded territory at the invitation of the Tsleil-Waututh Nation at the gates of Kinder Morgan, I was there with professors, oil engineers, teachers, lawyers, doctors, journalists, biologists, farmers, elders, technologists, artists and regular citizens of British Columbia, all standing behind First Nation matriarchs. There was no rift. We were standing in support of the real leadership in this country.

    Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid on Following the Good River, Stories from the Magic Canoe of Cecil Paul (Rocky Mountain Books) due out in 2019.

    Trials for protesters arrested in recent weeks will begin in June and continue through October. Those who plead guilty, with some exceptions, will be liable for a $500 fine, or if unable to pay, 25 hours of community service. This does not apply to the two federal MPS arrested: Elizabeth May and Kennedy Stewart were scheduled to be in court with special prosecutors on April 30.


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