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The BC Government Tapes: Pipelines and Reconciliation

Horgan pursued a new era of First Nations rights and relations. He also wanted LNG. Second in a series on insider interviews.

Arno Kopecky 15 Feb 2022TheTyee.ca

Arno Kopecky is an environmental journalist and author based in Vancouver. His latest book is The Environmentalist’s Dilemma: Promise and Peril in an Age of Climate Crisis.

Here’s a story about two trains.

The first is called Reconciliation. John Horgan set that train in motion when he became premier and promised to make reconciliation “a cross-governmental priority.” By the end of his first year in office, the NDP had delivered a $50-million revitalization grant for Indigenous languages, introduced First Nations history and languages into B.C.’s school curriculum, negotiated an agreement with the Broughton Archipelago First Nations giving them the power to ban fish farms in their territory, and signed a $3-billion deal to share gaming revenue with every First Nation in the province. One year after all that, the Declaration on the Rights of Indigenous Peoples Act was signed into law, becoming the first piece of legislation in B.C.’s history to be co-drafted between the First Nations Leadership Council and the B.C. government.

Some of these actions were easier than others. Amending school curricula didn’t threaten any power structures; $50 million for languages was no budgetary nightmare. But sharing $3 billion — even if spread over 25 years — was another story.

“That was huge,” a former senior official in the B.C. government told me. (That official spoke to me on condition of anonymity.) “Talk about the fights that happened internally on that one — there were officials in the Finance Ministry who were perplexed that government wanted to give a cut of revenue to each band without determining what they had to spend it on. They were like, they just get to decide?! And they [Horgan’s cabinet] said, yes. It’s their money.”

Even that struggle paled in comparison to the internal disputes over DRIPA. “The legislation faced intense, intense, resistance from some lawyers in the [attorney general's office], and some elements of the resource ministries,” said the former official. “It’s a miracle that got through.” The official credited the political will of Horgan’s cabinet, backed by the legal prowess of the First Nations’ lawyers who co-drafted the act, for pushing DRIPA across the finish line. Because of those two elements, “there was the heft to push back and say yes, the legislation presents risks, yes the government could be in court, yes there are implications for private property. So? All those things exist today. Let’s try a new way of recognizing rights. That's what it came down to.”

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‘I have way more hope than I’ve ever had in any government.’

— Bob Chamberlin

The final text of DRIPA was partly informed by the negotiations over fish farms in the Broughton. Bob Chamberlin, who spent 14 years as the elected chief of the Broughton’s Kwikwasut’inuxw Haxwa’mis Nation, and who was also vice-president of the Union of BC Indian Chiefs at the time, led those negotiations for the First Nations side.

“We developed a brand new process,” Chamberlin told me, describing the nation-to-nation principles of shared decision-making that would later be codified in DRIPA. Many of Chamberlin’s fellow Chiefs in the Broughton were initially critical of the process, especially when it became clear that they wouldn’t be able to close some of the fish farms before 2022. “It’s the last thing First Nations want to hear — ‘This is gonna take time,’” Chamberlin said. “We’ve been pushing for this for generations, there’s case law that’s been here for generations, what’s the problem? But the one thing I learned in the Broughton Archipelago [negotiations] was, when we want to share decision-making we must also wrap our minds around the obligations of government.... That brought in items that I hadn’t really been concerned with, in all honesty. Administrative law, administrative fairness, liabilities for those things — I really didn’t care. I was just standing up for the food security of our people and the well-being of the environment of our territories.”

Today, Chamberlin works as the special advisor to the provincial task force for the Blueberry River First Nation and Treaty 8 negotiations. The task force is charged with implementing the recommendations of the B.C. Supreme Court’s historic Blueberry Decision, which found the cumulative impacts of industry amounted to a breach of the province’s treaty obligations in northeast B.C. The NDP chose to accept the decision rather than appeal, a decision that amazed many, including Chamberlin.

“I had to go back and talk to my son, he’s 28 now — when he was growing up I was like, son, when we win the government appeals. Whoever wins the other one appeals, until we’re at the Supreme Court, and 20 years of status quo continues while this discussion goes on. So when I read the provincial government did not appeal it, I was shocked. That to me was a very significant signal.” Chamberlin described the current negotiations as far more complex than the Broughton talks, with many more industries and First Nations involved. But “with the people that I’m sitting beside, a table of assistant deputy ministers, I am seeing good will, I am seeing people working insane hours, throughout weekends, and really exploring not only what needs to be done, but pushing the art of possibilities.”

He added, “I have way more hope than I’ve ever had in any government, with Premier Horgan’s government.”

That statement could not be more at odds with the headlines and images permeating B.C. news and social media discussions. I asked Chamberlin how he made sense of these competing narratives.

“It’s taken many generations to arrive at the place we’re at today,” he said. “I know when we were happy and celebratory about the Broughton, the public goes ‘well that’s great but what about this?’ All of us that are extremely passionate about different aspects of the environment and very passionate about different types of development, that passion feeds an urge for immediacy in terms of change. And that’s fair. But the reality of government is it takes time to move things. It’s passion versus process.”

The Reconciliation Train really did get a strong start during the NDP’s first term in office. But even as it left the station, Horgan dispatched a second train on what turned out to be a direct collision course with the first. The point of impact was deep in Wet’suwet’en territory, directly on top of the Morice River.

This second train, of course, is called the Coastal GasLink pipeline.

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‘There is very real violence happening, undermining good and meaningful work.’

— former BC NDP government official

It’s no secret that John Horgan was always for liquefied natural gas.

Not the fever-dream version Christy Clark’s Liberals sold the province on, which at its height envisioned some 20 new pipelines (at one point a decade ago, 11 new pipelines were scheduled to run through Wet’suwet’en territory alone — that number is now down to one). The majority of those projects had withered on the vine by the end of Clark’s time in office. Of the seven left standing, Horgan staked his future on the whale: LNG Canada, the massive liquification and export terminal now under construction in Kitimat, which will depend on the Coastal GasLink pipeline to feed it fracked gas from the vast shale fields of northeast B.C.

Prior to Horgan’s election, Clark’s Liberals had been so focused on LNG that B.C.’s Ministry of Indigenous Relations effectively operated as an executive branch for the natural gas industry. “It was difficult for a nation to get a meeting with [BC Liberal Minister of Indigenous Relations John] Rustad unless it was about LNG,” the former official told me. Under Clark’s government, “the ministry’s job was to secure agreements for the pipeline. It was stomach turning.”

Nauseating, but effective: Both LNG Canada and Coastal GasLink were fully approved and permitted by the time Horgan took office, including impact-benefit agreements with every First Nation band on the pipeline route. The only group that hadn’t yet signed a final commitment was LNG Canada itself, which was still weighing its options amid shifting global markets.

As a result, Horgan’s inner circle focused not on Indigenous consent, but on closing the deal with the Shell-led consortium dangling a total investment of $40 billion just across the finish line.

That focus reflected Horgan’s determination to shake the NDP’s reputation as the “party of no.” This was no idle concern. In 2017, the party had just spent 16 years in opposition precisely because the Liberals so successfully portrayed them as a collection of economic halfwits. Everyone remembered the catastrophic loss of 2013, when Adrian Dix vaporized his commanding lead in the polls by promising to cancel Kinder Morgan (as the Trans Mountain Pipeline Expansion project was then called) in the final stretch of the campaign.

When I asked B.C. Environment Minister George Heyman if that experience influenced his party’s LNG policy, he insisted that it hadn’t. “The lesson I learned from that is, be clear what you’re going to do at the start of a campaign, not in the middle of it.”

It’s worth recalling that the NDP didn’t actually win the 2017 election; they tied with the Liberals, and only formed government after the Greens cast their lot in with Horgan. Given how close that call was, and the B.C. electorate’s history of punishing green policy proposals, it’s likely that Horgan does in fact owe his premiership to his support for the natural gas industry.

Leading a precarious minority government only strengthened that commitment. In those early days, the former official told me, “you had a lot of senior cabinet members and people in the premier’s office who said, OK, LNG Canada’s saying they’re ready to make a final investment decision, the BC Liberals couldn’t get it done, and this government’s gonna get it done.” Aside from the anticipated reputation boost (a touch ironic in light of today’s headlines), LNG Canada was also “talked about internally as a major part of long-term government revenue stability.”

All this predisposed the premier’s office to believe assurances from the Ministry of Energy, Mines and Petroleum Resources (known to many First Nations as EMPIRE) that any opposition coming from Wet’suwet’en Hereditary Chiefs was a side show. That ministry was not the most trustworthy source of information, with some of its senior public servants openly critical of the NDP’s new direction.

As The Tyee’s Andrew MacLeod reported, EMPR’s deputy minister at the time, Dave Nikolejsin, publicly disparaged measures like an increased carbon tax and DRIPA, asking the audience at a 2018 oil and gas conference: “You start to stack them up, and which straw breaks the camel’s back?” Nikolejsin resigned under a cloud of controversy in 2020, after social media posts came to light in which he blamed George Soros for financing riots and interfering with U.S. elections, among other unsavoury opinions.

Those were some of the people telling Horgan that the Hereditary Chiefs were nothing to worry about. “They cast it as if this was some hiccup with some fringe folks,” said the former official. Based on Delgamuukw and subsequent case law, however, it was clear that the Hereditary Chiefs were the title holders, “and so you’ve got a big problem here.”

Horgan decided the bigger problem was letting $40-billion slip through his hands.

In March 2018, eight months into office, Horgan’s cabinet approved a package of incentives that would save LNG Canada roughly $5 billion in taxes and electricity bills over the project’s lifetime. The consortium accepted the offer. According to LNG Canada construction is now over 50 per cent complete, and First Nations businesses have already been awarded $2.8 billion in contracts and procurements.

Over the same period, dozens of people have been arrested, including several Wet’suwet’en land defenders, for blocking construction crews’ access to the Morice River in Wet’suwet’en territory. It is impossible not to contrast the RCMP’s use of attack dogs and assault rifles to remove unarmed Indigenous citizens from their own territory with the gentle treatment given to the truckers’ blockades; but even before that disparity was laid bare, the Wet’suwet’en arrests caused countrywide protests and drew international condemnation from groups like Amnesty International and the UN Committee on the Elimination of Racial Discrimination, to say nothing of the horror British Columbian citizens have expressed — including many from within the NDP’s own ranks.

“There were senior bureaucrats in resource ministries that framed up a certain picture that a government intent on seeing this happen seemed to take at face value, even though it was set to contradict what was also a sincere commitment to a different approach to Indigenous rights and title,” the former official told me. “There is very real violence happening at the hands of the RCMP. And it’s undermining all of the good and meaningful work that is happening elsewhere.”

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‘We live in a system of laws, and I am sworn to uphold those laws.’

— Murray Rankin

On Jan. 3 of this year, Delgamuukw Earl Muldoe, the first named plaintiff in the landmark 1997 Supreme Court decision on Aboriginal rights and title, passed away. Four days later I received a call from B.C.’s minister of Indigenous relations and reconciliation.

Murray Rankin, who just turned 72, spent most of his career as an environmental lawyer. A former president of West Coast Environmental Law and co-chair of the University of Victoria’s Environmental Law Centre, he has mediated numerous B.C. treaty negotiations and environmental disputes. He entered politics in 2012, winning Victoria’s seat for the federal NDP, where he became a high-profile opponent of the Northern Gateway Pipelines Project — “the fight of my life” as he described it at the time. In 2015 he won more votes than any other NDP MP, becoming house leader in 2016. By the time he left Ottawa to enter B.C. politics in 2019, Rankin was one of the best known New Democrats in Canada.

In his 2019 farewell speech to Parliament, Rankin said, “I am deeply disappointed with the progress Canadians have made toward reconciliation with Indigenous peoples. I am particularly disappointed in our collective failure to address the climate crisis.”

So how, I asked, could he now defend the Coastal GasLink pipeline?

“A government before us approved this project, provided permits, it became a legal project,” he said. “In our system of law, if we were to stop that, then the consequences of acquired rights would be such that people would wonder — it would alienate many in society, let’s put it that way, if a government were to, in the face of a $40-plus billion project, suddenly say those rights that you have invested in are no longer to be honoured, because we have changed our mind. I don’t know if that would be acceptable in the court of public opinion, if that is what the people of British Columbia, from whom we have been given a mandate, would want to occur. We live in a system of laws, and I am sworn to uphold those laws.”

This was both true and misleading. Horgan’s government could have let LNG Canada walk away without breaking any laws, and chose instead to push the project past a point of no return. But now that we’re here, I said, isn’t there also a law that gives jurisdiction over Wet’suwet’en territory to the Hereditary Chiefs? In other words, isn’t B.C. choosing one law over another?

“I don’t think so,” he said. In Rankin’s view, it isn’t a matter of one law versus another but of integrating two legal traditions. “What we’re trying to do is align our laws with the Wet’suwet’en laws.”

“The Delgamuukw case had been decided in 1997,” Rankin told me, “and the Supreme Court said, famously, we’re all here to stay. You should negotiate. There is title in the area. And so we said, a generation too late, let’s negotiate. Let’s sit down. Let’s not litigate. And that’s what we set out to do.”

Rankin has been involved in those negotiations since he was still a federal MP. Following the first RCMP raid on Wet’suwet’en land defenders in February 2019, Prime Minister Trudeau dispatched Rankin to help mediate a larger negotiation between the BC NDP and Wet’suwet’en leaders around their rights and title — a discussion the Wet’suwet’en themselves requested proceed along a separate track from the pipeline dispute. “We chose not to talk about [the pipeline] at the table, but it was the elephant in the room and we had to figure out how we could move forward.”

Rankin conceded, however, that up to this point the elephant “has deterred us from the historically important work that I want to get back to do doing.”

Throughout our conversation, Rankin emphasized his preference for negotiation over litigation. I could imagine another person in his place pointing out the strength of the government’s legal position. He could have noted, for instance, that the Delgamuukw decision itself says “Aboriginal rights are not absolute and may be infringed by the federal and provincial governments.” He could have reminded me that DRIPA does not apply to projects that were approved before it came into law, or that even if it did, the act doesn’t give First Nations a veto.

Minister Rankin didn’t say any of those things. Instead, he said, “If you believe in self-determination as an inherent right of Indigenous peoples, including the Wet’suwet’en, they have to decide what to do here. And it is a fact that there’s disunity about this project in the community. That’s not an excuse, it’s a fact.... So we are trying, in a respectful and patient way, to let them determine through their feast hall system, through their clans, just exactly what their interests are here.”

He asked if I’d seen an article in the National Post published in December, titled “We are Wet’suwet’en and the Coastal GasLink pipeline protesters do not represent us.” Its authors, members of the Wet’suwet’en’s Gidimt’en Clan, claimed that “our traditions and way of life are being misrepresented and dishonoured by a small group of protesters, many of whom are neither Gidimt’en nor Wet’suwet’en, but nonetheless claim to be acting in our name.”

They alleged that “the hereditary system has been disrupted due to disagreements over the pipeline,” and “nearly everything the so-called Wet’suwet’en land defenders and their supporters have been doing is in direct conflict with these traditional laws and protocols.... The multitude of outside voices on social media has also served to overshadow the voices of the Gidimt’en and Wet’suwet’en. It has left a majority of Gidimt’en matriarchs, Gidimt’en clan members and Wet’suwet’en voices overlooked, marginalized and disrespected.”

“I get those calls all the time,” Rankin told me.

But suppose you wanted to build a pipeline through the United States, I said. Suppose the president and congress said no. Suppose 50 per cent of Americans then said, we didn’t vote for this president, he doesn’t represent us, and in fact we’re pretty sure he stole the election, so please go ahead and build that pipeline. Would you have any doubt about whether you had the right to proceed?

“I think it’s very fair to use the United States as a metaphor here,” Rankin agreed. In the U.S., he said, “we have a clear system that’s forged in a Constitution for which there’s a lot of precedent how to go forward, we know the president’s powers, we know Congress’s powers, you’re absolutely right.” At this point, Rankin started choosing his words like a man stepping barefoot through a field of poison ivy. “I just say I’m not as certain that I know, in 2022, what a system of [Wet’suwet’en] government that is being reinvigorated, what exactly it leads to. And that complexity is difficult for a government to navigate.”

But surely, in this sea of ambiguity, one thing remains crystal clear: the outlandishly aggressive behaviour of the RCMP. Could the minister of indigenous relations and reconciliation not, at the very minimum, make an official statement of sympathy here? Was it beyond his powers to convey concern about the way Indigenous people were being treated?

A world of conflict that may never see the light of day was buried in his response: “Of course I’m not able to talk about cabinet discussions of this sort.”

Just as Environment Minister Heyman did when I put the same question to him, Rankin referred me to the public letter Nathan Cullen wrote to federal RCMP commissioner Brenda Lucki in December. Cullen is both the MLA for Stikine (which includes the Wet’suwet’en’s territory) and B.C.’s minister of state for lands and resource operations. In his letter, Cullen asked Lucki to investigate the RCMP’s use of “undue force” in their arrest of Indigenous land defenders. In three years of conflict, that is the only mention B.C.’s government has officially made on the subject.

“Do I have concerns about the images I’ve seen, as a human? Of course I do,” Rankin said. “Minister Cullen, wearing his MLA hat, has made that kind of statement publicly and we’ll see what the federal government does about it. I can only tell you that what has been said in other contexts to federal decision-makers isn’t something you do in the court of public opinion.”

But whatever may be happening behind closed doors, the statements being issued out in front of them only strengthen the impression that the RCMP have the full support of all levels of government. In Lucki’s public response to Cullen, she claimed that she “cannot comment on specifics,” and instead advised that “any individuals directly involved may lodge a complaint with the Civilian Review and Complaints Commission for the RCMP.”

Worse still, federal Minister of Indigenous Services Patty Hajdu has directly contradicted the B.C. government’s argument that only federal authorities can reign in the RCMP. “Those police forces are contracted through the Province of B.C.,” Hajdu told APTN reporter Melissa Ridgen. “They’re under B.C. jurisdiction.”

Both of the current senior officials I spoke to made clear to me that the premier’s office regards completion of Coastal GasLink and LNG Canada as inevitable. From their perspective, the financial implications of cancelling the projects, and the betrayal of other First Nations that would entail, crush all other considerations.

What no one could explain, however, is how they hope or expect the Wet’suwet’en impasse to be resolved. The land defenders at Morice River are no less resolute than Horgan, and their messaging is much more savvy. From a PR perspective, the RCMP actions to date have done more to bolster the Hereditary Chiefs’ position than any legal argument could dream of.

It is the most intractable conflict in B.C. today, giving the BC NDP a blacker eye than even Fairy Creek. And all this before considering the project’s climate implications.

That’s where we’ll head in the next and final instalment of this three-part series: To B.C.’s climate plan, the challenges of our energy transition, and the blind spots preventing government and environmentalists from seeing eye to eye.

Photo credits: B.C. legislature via B.C. government; RCMP line via Gidimt’en Checkpoint Facebook; LNG workers via LNG Canada.


Yesterday: On old-growth protection, what people inside the BC NDP government and those assisting their policies say to critics. Tomorrow: This series wraps up with discussions about BC NDP’s climate plan and the brutal pace of change that delayed action on global warming now imposes.  [Tyee]

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