On The Trans Mountain Pipeline Project: Interview with Tony Penikett

By Lana Ollier
On 1 November 2016, Jim Carr, Canada’s Minister of Natural Resources, released the report of the Ministerial Panel on the Trans Mountain Pipeline Expansion Project. So as to understand the positions of the people that  would live along the pipeline, the members of the Panel travelled along the potential pipeline route for five months and gathered information through questionnaires, email submissions and meetings. With the hope of  understanding the strengths and weaknesses of the process, especially with regard to stakeholder engagement in the Arctic, we talked to Tony Penikett, who together with Kim Baird and Annette Trimbee, was tasked with leading this process. 

Can you tell me a little bit about your career before you became Premier of Yukon, and how you got involved with public service and in the Ministerial Panel on the Trans Mountain Pipeline Expansion Project that produced this report?

I started by working in Yukon as an asbestos mine labourer. It was in those days that I started writing on the North. One of my earlier efforts was a film called The Mad Trapper which was produced by the BBC in 1972. After that, I started to get involved in politics, and I became the campaign manager of the first northern Indigenous Member of Parliament.

A much-debated issue in the Northwest Territories at the time was the Mackenzie Valley Pipeline, which was a gas pipeline that was supposed to come from the Beaufort Sea through the Mackenzie Valley to southern markets. The essence of our campaign in 1972 was the call for land claims to be settled before the pipeline was built. The Indigenous MP, whose campaign I was managing, won the election; and Pierre Trudeau, who was Prime Minister at the time, then appointed the famous commission which produced the Mackenzie Valley report. This report framed the debate around the future of the North.

On the one hand, southern Canadians generally conceived the North as a frontier, while the Northerners, typically Indigenous people, saw the North as their homeland. So those two opposing ideas shaped much of the debate that followed over the next few decades. Many of the conflicts around the Arctic Circle are actually between renewable resource users and non-renewable resource developers. They arise, for example, between people who have hunted caribou for thousands of years and people who want to develop oil on those same lands that are hunting grounds for caribou.

So, one solution to those kind of issues is to settle the land claims. I was involved in negotiating the land claims settlements in Yukon in 1972, which started to be addressed when the Alaskan pipeline was first built. Settling those claims is very important, because it creates a different kind of development and different opportunities for settling those conflicts. This is because those settlements create Indigenous landowners which then own very large pieces of land. Hence, if a mine wants to develop resources on this land, the benefit from that development will go to the landowner, which in this case is the Indigenous community. This is as opposed to projects that are developed on land which is not directly owned by anyone. It is in those cases that we often see conflict arising, because it starts an argument of how local people can get their fair share of those revenues.

Furthermore, in the Northwest Territories and Yukon, we have Devolution Agreements, which means that local Indigenous people essentially have provincial-type control over their resources. So Yukon and Northwest Territories are not de jure provinces but they have similar rights with regards to resource development. Nunavut, on the other hand, does not yet have control over its public land. So people in those areas are not profiting from the resources that are developed on their homeland. That is particularly problematic when they have to bear the social and environmental costs.

Has this been the idea that has been driving your work – the ambition to get a more just settlement of the land claims?

The Canadian territorial North has traditionally been less developed than the South because of its land claim settlements in the 1960s. As a result, the bargaining position of Indigenous peoples and local people is generally much stronger than in the South.

In the context of our hearings on the Kinder Morgan pipeline proposal, one chief was, for example, quoted saying, “If you look at an Indian reservation in the interior, you do not need to look long for a highway or for a hydroelectric line”, because that was all built in the 1950s when the First Nations had no legal rights at all to sue the government. The government often treated the Indian land as free land and often put infrastructural developments right across those lands without any permission of the local community. That has all changed.

If you take a look at our report, you will find that the situation is now along the lines of “if you want to build infrastructure across our land, we need to be entitled to some of the rents”. So what the Indigenous peoples are proclaiming is a sort of revenue-sharing system. Nevertheless, the problem remains that they are often not included in the discussions around those infrastructure projects. Often, it is an issue that is settled solely between the federal and provincial governments, and First Nations do not have a place at the table where those things are negotiated. This is a big issue which came up a lot in our report.

So the main aim of those groups is to have a place at the table and be part of the discussion?

Yes, I think, even more specifically, they want to be partners. But it is important to differentiate between different claims. The people who want to be partners and are fighting for inclusion are very much in the interior parts of Canada. The situation at the west coast is quite different. When you get to the west coast, the First Nations, who are people that have been living off fishing for centuries, are just extremely concerned about the effects those industrial developments can have on their natural environment. But it is really difficult for those people to restrict those developments, because in British Columbia, most First Nations have no treaties, and their concerns are not really heard. They say that not only is there no conversation about those things, but also governments in the past have never asked for their consent or have given them any voice. This is also why a lot of First Nations in the larger Vancouver area are opposed to this particular project. They have no stake, no share, and they are bearing the risks and costs. As a result, they argue that they should get some of the benefits, and that based on those benefits, developers can make a decision as to whether the benefits of such projects outweigh the costs.

In your opinion, has the Ministerial Panel been a success? Can it serve as a model for stakeholder engagement?

No, it was certainly not a model engagement, and there are several reasons for that. I think the timelines were too short, and we didn’t have enough resources or enough researchers. In the end, our mandate was also limited to travelling along the pipeline route and giving communities the opportunity to express their views. The process was very much driven by the fact that we have a new government in Alberta, and essentially, after all the criticisms of the National Energy Board, the government decided that the panel was probably a good idea. But people were actually particularly angry in British Columbia.

Another problem was certainly the process of engagement in itself. One of the most eloquent speakers we had was a First Nations leader in a community in Langley, who said that if you are doing engagement process with First Nations, we should have a joint process involving all partners of Indigenous parties and the government, sitting down together and developing an engagement process. We have a concept in Canada that is called co-management, which is a central idea of Northern renewable resources management. In a co-management process, Indigenous and local people are not just passive respondents that are considered to be in a, as one person called it, “drive-by consultation”, but they are actually helping to design the process – that is, helping to design environmental assessment processes and the engagement process as a whole. We heard a lot of criticism on failing to engage them in the design of the process. But of course, we, the panelists, didn’t design the process; the government did.

Would you say that this was also a question of consultation versus participation?

The Canadian government made a very big thing about endorsing the principle of free, prior and informed consent before engaging in those types of projects. But the people that came to our meetings often complained that the government had not actually engaged in such a process. Now, just a few days ago, the minister announced that all the government had to do was to consult. That has, of course, produced a very negative reaction on side of the First Nations leaders. Even our Supreme Court has come to the conclusion that mere consultation is simply not sufficient. More recently, the industry has actually done a better job of accommodating Indigenous interests than the federal government. Nevertheless, it is actually the job of the federal government and not the industry to engage with those communities and to provide for a legal framework that accommodates different interests.

In how far would you say that the Ministerial Panel has been a success nevertheless?

I think considering our limitations in terms of time, resources and the great cynicism our report was greeted with in some places, it probably was a success. Furthermore, it was a success in terms of the response we received; and by that, I mean the thousands of emails and submissions we received. There were only two other consultations in Canadian history that have received a similar response; one was on marijuana, and one, on prostitution. So, in that sense, it was quite a success. Moreover, it was a success in the sense that the three panelists worked together very well. I think because of that, we were able to produce a well-written, readable report. This is particularly the case when compared to the report produced by National Energy Board which was a 535-page long report.

One of our achievements is also that we came up with a range of questions at the end of our report, which we know are difficult to answer, but to which the government nevertheless needs to respond. I believe, in the end, the success of the report will heavily depend on how the government treats the report and especially on how the government will respond to those questions.

Have you received any feedback thus far?

From individuals, yes. The government has promised a response in December on this project. A day or two after the report was published, the Prime Minister came out to the west coast and announced a new coastal protection plan of 1.5 billion dollars. That is, to a certain extent, a direct response to the widespread concerns here about an oil spill. The media immediately responded by saying that he was announcing this coastal protection plan, because he will now announce approval of the pipeline project. But I don’t think the coastal protection plan will be the end of the debate on the pipeline project. Nevertheless, in regions like Burnaby, Vancouver and Victoria, there will remain quite a lot of opposition from Indigenous peoples and citizens concerned about the environment. As I mentioned before, there are very few benefits from the project to the people in those regions. I think if they decide to approve the Kinder Morgan project, this will lead to a furious debate.

In practice, there are a number of pipeline projects which the government has to make a decision on. Another one would take Alberta product to the east coast. On one of the first days of the National Energy Board hearings on this project, there was actually violence. So they are currently reconsidering this project as well. In the end, it might come down to a political calculation on the side of the government, in which they will consider how many parliament seats they can afford to lose in Quebec, in comparison with those they can afford to lose in BC, and probably approve the projects accordingly.

Is there a direct link between the benefits people gain and the approval rate in different areas?

The realities in Alberta and British Columbia are, of course, very different. Alberta is an oil-producing province, and it has a recently elected new government, which for the first time is a government of the left. The province is trying to cope with the oil prices dropping and the slumping economy. Therefore, people there desperately want a project like this one. But what is interesting in Alberta is that when we spoke to people, they were generally sensitive to the idea that the world is in a transition towards low carbon economies. They believe that this process will take another 30 to 40 years, and that, in the meantime, we need to continue to develop oil and infrastructure responsibly. There are obviously far more benefits in this project in Alberta than on the west coast in British Columbia. Evidently, the approval of the project, which we witnessed in Alberta, is very different from the skepticism in Vancouver, where people just don’t see many benefits.

Was the issue of climate change one that came up frequently in those discussions?

It was a huge element in those discussions. I need to be careful though, in not misrepresenting the public opinion in British Columbia, because our meetings were often packed with environmentalists. So some of those groups came every night and made some very strong statements about climate change. But I think, in the end, we can probably all agree that a transition into a less carbon intensive economy will not happen overnight, and that instead it will take time. But on the west coast, climate change, along with the threat of an oil spill, were the biggest concerns. However, in all fairness, as I mentioned before, people in Alberta also indicated an awareness of those issues.

What are the main take-aways for you from this process?

I think the first very important take-away for my colleagues and me in the panel is that it doesn’t make much sense to engage in a project-by-project review on major infrastructure initiatives. Instead, we need a comprehensive national energy and environmental strategy. The government has to agree to come up with a comprehensive strategy. That is also the second one of our six questions in the report. We also draw attention to the fact that if they are developing such a strategy, it cannot just be about oil and gas, but instead it needs to be an overarching strategy considering many issue areas. I believe, that in light of such a strategy, which serves as a sort of framework for decision-making, they can also improve stakeholder engagement processes.

Secondly, there needs to be a general improvement in the way the government engages with people; you can’t do this in a sense “quick and dirty”. Our process was way too short, which didn’t give us enough time to design the process, and we didn’t have enough resources. So the way in which we engage in such processes needs to be reconsidered. People need to have confidence in the processes and in the fact that they will be heard – and also that decisions are made based on facts. This should also include traditional knowledge.

That takes me to my third point, which is that they need to deal specifically with the concerns that First Nations have with the way that they are engaged. So you got to sit down with them and talk to them about designing a process that also meets their needs.

Is the government working towards such a comprehensive strategy?

Yes, on all three points. Concerning the first one, the government has promised that it is on its way to design a national energy and also an environmental strategy, but we don’t know much more about it yet.

Secondly, they promised to overhaul the National Energy Board and its processes, which were generally seen as a way to fast track approval processes.

On the third point, at least the government has promised to do a better job on reconciliation with the First Nations. On the panel, we perceived people as very skeptical, and a lot of people claimed that it was just talk and questioned whether there’s going to be a real change.

Is it also a question or centralisation versus decentralisation?

Yes, we have had quite a centralised model with the National Energy Board, which is based in Calgary. I would advocate decentralisation. Just take the third point in terms of First Nations consultations. There is a huge cultural diversity among First Nations in British Columbia. So you probably need to consult with different First Nations in different ways. A lot of people on the coasts are people that live off fishing, and their culture is also based around that, whilst in the interior, people have traditionally hunted. So you may need to have a variety of processes to engage with them. People who live near large centers at the coast are very different than people who live in small communities in the far north. So my view would be that you need a broad framework such as the national energy strategy, but you also need the dexterity and imagination and the flexibility to be able to design processes to engage with different tribal groups if you actually want to engage with them. You cannot just go in and say: “Now talk to us and tell us what you think”.

What are the chances of improving on those three points in the not too far distant future.

It probably cannot be one process but it needs to be different processes. In my view, you have to be smart, responsive, and you have to experiment. You have to try one model in one community, and another in another community, and, over time, you will find what could work. One thing that certainly doesn’t work is the BC treaty process which has the same rules for every place. It simply isn’t working, and instead we need to be flexible and adaptable in order to make things work.

You can read the Report from the Ministerial Panel for the Trans Mountain Pipeline Expansion Project here

Lana Ollier is an Associate in the Geopolitics and Security Unit at Polar Research and Policy Initiative. She is currently completing a MSc in Environmental Policy and Regulation at the London School of Economics. She holds a Bachelor’s degree in Political Science from the Freie Universität of Berlin.