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Senator Doug Black's Bill S-245 Trans mountain Pipline Project Act, third reading speech

Hon. Douglas Black moved third reading of Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.

Colleagues, I have the privilege this afternoon of rising on third reading of Bill S-245. The intent of the bill before this chamber is to declare Trans Mountain Pipeline to be for the general advantage of Canada.

There are two principal reasons for this bill. The first reason is that it provides a foundation for federal action. Second, it provides certainty that Kinder Morgan is requesting in order to allow them to continue their work in constructing the Trans Mountain Pipeline.

Before proceeding, I have a number of things I would like to offer. First, I’d like to thank Canadians, who in the thousands, if not the tens of thousands, have reached out to me and to other senators expressing their views. Second, and unusually, I also want to thank the media. The media is speaking with one voice on the necessity of ensuring that the Trans Mountain Pipeline be built. I will refer subsequently to a number of them. But I am appreciative of that because we all, as senators, whenever there’s a message to be delivered, need that message to be amplified. Third, I wish to thank senators, particularly our colleague Senator Neufeld from British Columbia, who has seconded this bill.

Senator Neufeld, as I think we all know, was, before coming to this place, the Minister of Natural Resources in the province of British Columbia, and he has a fundamental understanding of the importance of this pipeline to his province. But I also wish to thank other senators, particularly those senators who have raised questions respecting this bill, because it has always been done in a careful, considered and sincere way, and I have appreciated every question and hopefully have been able to deal with those that have been raised.

Many Canadians have indicated to me that we are now doing the type of work that the Senate is supposed to do. We’re supposed to tackle national issues. We’re supposed to carefully and in a considered way review issues. And we are supposed to take leadership, all of which is being done in this circumstance.

The bill before us is extraordinarily straightforward. As I’ve indicated, the one operative clause is to simply declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.

There was at the Transport and Communications Committee a comprehensive debate on the issues, and certain amendments were proposed for consideration. Perhaps some of those amendments will be proposed in the chamber this afternoon. I’m not sure. But I would like to say in a general way that those of us in this chamber who have ever involved ourselves with legislation, or certainly those of us in this chamber who are lawyers, understand that the principle of drafting is you say what you need to say and you say no more. And that is precisely what the legislation does.

Now, specifically, in terms of the concept of amendments to the bill, we must keep in mind, as I think I’ve indicated already, that the purpose of the legislation is to provide a foundation for federal action to get the pipeline built in accordance with legitimate authority.

It is not for us to legislate or attempt to legislate our views on various matters respecting the pipeline. This has been dealt with by the NEB and by the British Columbia environmental assessment board. So while we may have views on the significance of the consultation with municipalities or while we may have views on pipeline safety or while we may have views on the demand for energy globally, these concepts do not appropriately find themselves into a piece of legislation sitting at the Senate, particularly, I would argue, honourable senators, when, in fact, these matters have been dealt with exhaustively by the panels that were entrusted to deal with them.

Honourable senators, I will have two components to my remarks this afternoon: First, a quick review of what it is we know. Second, I wish to address the various arguments that have been put forward in opposition to Bill S-245. To any of you who have served on committees with me, I will endeavour to do it in the same way that I operate in committees. I’ll be short, and I’ll be to the point.

What we do know is that, after seven years of consultation, Kinder Morgan, on behalf of the Trans Mountain expansion, has received, from both the National Energy Board and the British Columbia environmental board, all certificates required to allow them to advance with the project. They have acquired legally enforceable rights. As an aside, there was a question at the Transport Committee, I believe by Senator Tkachuk. I remind senators that they have acquired legally enforceable rights, and, if their ability to utilize those rights is interfered with, one can only assume that they acquire another set of rights, which, of course, will be to sue for damages. That is not our concern, but that is a reality.

We know that Trans Mountain has ceased work on the project as they cannot proceed to spend the money they’re spending, given the uncertainty and the security concerns. We know that hundreds of people have been arrested for illegally endeavouring to interfere with the project. We know that officers have been injured. We know there are ongoing threats. We know that Burnaby is not paying overtime for police. We know that the Squamish band is the most aggressive in terms of their opposition — and that is fine. They’re entitled to do that, but we know the comments that have been made there. The comments that were made by the Squamish were underlined by the chief of the Squamish, when he appeared before committee. He indicated to senators that, if the project advances, Canada will never see civil disobedience like we should prepare ourselves to see, and, indeed, they are prepared to lay down their lives to prevent the pipeline from being built.

Honourable senators, that is an offensive violation of the rule of law that simply cannot be tolerated in this country and that I have every confidence will not be.

We also know, honourable senators, that this situation that we’re encountering now has done potentially irreparable harm to Canada as a place to do business. Our reputation as a place to do business once you have obtained legal authorities has been shredded. We’ve all seen, in the last two or three weeks, the comments of the CEO of RBC, who has indicated to Canadians that he’s watching money leave Canada on a real-time basis.

The CEO of TransCanada, who is the proponent of the Energy East project, which enjoyed great favour amongst many constituents in Canada, when asked if he would resuscitate the Energy East project, indicated, “Why would I do that? I can build pipelines in the United States or Mexico.” Encana, who has moved their CEO to Denver, Shell, Statoil, Imperial, all global firms who have exited Canada over the last number of months. We’re all aware that Scotiabank — and others, but Scotiabank — has indicated that, because of our inability to build pipelines — the price differential that Canada is suffering amounts to $15 billion a year. That is their estimate. We all know that that is, on an annual basis, 15 hospitals or 750 schools or 30,000 kilometres of paved highway a year that we are foregoing.

What we also know is that a majority of Canadians support the building of this pipeline. Nick Nanos and his firm released statistics, within the last 10 days, indicating that, 66 per cent of Canadians, including a majority of people in the province of British Columbia, support the building of this pipeline. Perhaps you read the lead editorial in The Globe and Mail of last Thursday, where it says:

. . . expanding Trans Mountain pipeline. . . is of national interest, it has been reviewed by the appropriate federal bodies and approved by cabinet, and the company has met or is in the process of meeting all the conditions imposed upon it.

As well, a strong majority of Canadians, British Columbians included, support it. The B.C. government itself approved the project in 2017. And the majority of Indigenous communities along the project’s path have signed agreements with Kinder Morgan that will protect their territories and bring them much-needed income.

And yet a project that has been approved:

. . . is now at risk of being cancelled because of the interference of a provincial government.

That was The Globe and Mail last Thursday.

Similarly, last Thursday, the Sun, in its editorials which appeared in newspapers across Canada, similarly argued, and, indeed, urged the Prime Minister, to get behind the bill, which we are now discussing, which is currently in the Senate, and move this project forward.

The Sun editorial ended with the language:

If the Prime Minister is thinking along this line, i.e., supporting this legislation, Canada will owe him widespread support.

This, honourable senators, is part of the coalition that has come together to support the project.

Finally, honourable senators, I want to speak about the issue of First Nations consultation. There is a myth — and it is a myth — that First Nations groups do not support this project. This is not correct. Forty-three groups have signed agreements with Kinder Morgan, 33 of those in British Columbia. That represents 80 per cent of Indigenous groups along the pathway of the pipeline.

As I’ve indicated to you, the Squamish are part of the 20 per cent that has not agreed. I had the opportunity to question the chief of the Squamish when he was before our committee. He indicated to us — it’s on the record — that consultation is not complete until we decide it’s complete. Fine. I asked him how the consultation is going. Well, honourable senators, they participated in the National Energy Board hearings. Unfortunately, they lost. They have participated in no other processes, and the processes that they had the opportunity to, and, indeed, that others participated in, would have been the process before the British Columbia environmental board or the two special consultative committees set up by the Government of Canada to consult the First Nations people on these matters. They participated in none of the above. Furthermore, honourable senators, the record will show that they have also elected not to engage with Kinder Morgan at any level, respond to letters, respond to meetings, attend conferences, meet with people. I asked the chief, “How can you consult if you do not talk?” And that, honourable senators, is where we are in terms of this particular matter now.

Now, there are a couple of matters that I would like to address that need to be addressed in terms of arguments that have been raised as to why the pipeline should not be built. Some folks have suggested that pipelines are not needed because the demand for oil globally is diminishing; therefore, why should Canada invest money in a dying industry?

I would refer senators to the report — and I think I did this in second reading — of ExxonMobil. They do an annual report on the world view of energy each year. The review this year says they believe peak oil will be achieved in 2040, and until that point in time the world will continue to consume more oil.

Similarly, Shell confirms the same. Similarly, the International Energy Agency confirms the same. And those of you who follow these things may have seen an op-ed by Peter Tertzakian, who is Canada’s leading energy economist, in the paper last week saying in fact the world is going to go through a threshold in the next month of consuming, whether we like it or not, 100 million barrels of oil a day.

There is no indication anywhere, from any credible source, that the demand for oil is decreasing over the next number of years. That is not to say that that is a good thing. That is not to say that that should be the case. But I’m sharing with honourable senators that that is the case.

I have heard suggestions that pipelines aren’t safe. The facts will show that the safety record of pipelines in Canada is at 99.9 per cent. Those of you who attended the session that was put on by Senator Neufeld and other senators would have heard from the Pacific Pilotage Authority in Vancouver Harbour and the spill response teams who operate on the coast of British Columbia. They indicated that over the 60 years that Kinder Morgan has operated in Vancouver Harbour, there have been no instances of heavy oil spills or even shows in Vancouver Harbour.

We heard Senator Raine, who lives in Kamloops, when she was talking last week about this issue. She asked us to conceive of moving more oil by truck or by train, and she called up the image of the trestles high above the Kamloops River and what would happen if something happened there.

I would simply suggest to you, honourable senators, that I do not believe there are any credible sources who would argue that the transportation of oil by truck or by train is safer than by pipeline.

I would also point out that the Government of Canada, as recently as this year, has made significant financial investments to upgrade marine response capabilities on the Pacific Coast, all as was detailed in respect of the session that Senator Neufeld ran last week.

I also want, for the benefit of the record and, of course, for honourable senators, to point out that at the hearings of the Transport Committee, Chief Nathan Matthew of the Simpcw First Nation — which is along the pipeline route in British Columbia and which is, incidentally, the largest owner of land along the pipeline in British Columbia — was asked by one of the senators about the concern of oil spills on his land, recognizing that his land covers 30 per cent of the pipeline

We have quite a large amount of territory that the line has run through for the last 50 or 60 years, and there have been no major spills or leaks. . . . We’ve been able to continue to enjoy access to the territory over which the pipeline has run in terms of hunting, fishing, gathering and those kinds of things.

Honourable senators, these are the people who live on the pipeline, and they do not share the concern that some senators have.

We have also heard a suggestion that perhaps this piece of legislation is a blunt instrument and that we should allow the principles of cooperative federalism to flourish in this instance. I’m the first person to say, honourable senators, that if you can work something out cooperatively, you should, and indeed Canada has had a track record for the last 30 years of doing exactly that. That’s why this clause has not had to be used in the last three or four decades, because Canada got along. There was a consensus built that projects needed to be worked on for the benefit of the nation.

But to suggest that there is any possibility at this time of any kind of cooperative interplay between the Government of Canada, the Government of Alberta and the Government of British Columbia is simply not to be alert to the facts.

Within the last two weeks alone, Alberta has passed legislation — not mooted legislation, but passed legislation that allows Alberta to restrict the flow of oil and gas to British Columbia. There are press reports today, honourable senators, that Alberta intends to utilize that authority if there is no agreement by May 31 on the advancement of the pipeline.

To make matters worse, the Government of British Columbia is now commencing action in the courts of Alberta to declare the Alberta move unconstitutional. And, of course, B.C. itself is saying, “We’re not going to allow bitumen to cross our province any longer, and indeed we’re referring those questions to the Supreme Court of British Columbia.”

We heard Minister Morneau last week aggressively attacked the Premier of British Columbia. Many commentators suggested this is the lowest point in federalism and the federation in decades.

And this morning, what do we hear from Edmonton? The Premier of Alberta is for the first time ever not attending the Western Premiers’ Conference because she refuses to be in the same room with the Premier of British Columbia.

As senators from British Columbia and senators from Alberta can assure any of us in this chamber, there is no possibility that this matter can be resolved under the current environment, and that’s why this bill hopefully won’t need to be used but will instead helpfully provide a basis for action.

There has been a suggestion, certainly at committee, that First Nations not only have a right to be consulted in respect of the development of pipeline projects, or any project in Canada, they have a right to consent. As I’ve indicated, 80 per cent of the groups along the pipeline are on our side, and with respect to the concept of consent, I would simply inform honourable senators that that is simply not the law.

But don’t take it from me. We should take it from Professor Dwight Newman, who is a Canada Research Chair in Indigenous Rights in Constitutional and International Law. He is considered Canada’s leading legal expert on these matters, and he appeared before the Transport and Communications Committee. Let me summarize what he said with respect to 92.10(c), this act, and in terms of Aboriginal rights as I referred to.

First, he said that 92.10(c) is an available remedy and an appropriate remedy.

Second, he said that the Senate has often in the past been the place where this type of legislation has been an issue.

Third, he indicated, as has been indicated in this chamber before, that much reference has been made to section 35 of the Constitution, which deals with Aboriginal rights. What it simply does is it acknowledges Aboriginal rights. That’s all that section 35 does, and Professor Newman confirmed that.

He indicated quite clearly that section 35, as interpreted by the Supreme Court of Canada, most recently in two cases last July — the Clyde River case from Labrador and the Chippewas case from Western Ontario — indicates the principles of consultation. The court sets out, in those two cases, one where consultation was adequate and one where it was not, what the principles of consultation are to be.

Consultation is not consent. Once a proponent has met the standards set out by the Supreme Court of Canada, consultation is complete. I would suggest to you that Kinder Morgan, with respect to the Trans Mountain pipeline, has done exactly that. I would also point out to you that Professor Newman made it very clear that the United Nations Declaration on Indigenous Peoples is not the law in Canada. It is an aspirational document and perhaps a fine aspirational document, but it is not the law in Canada. Any suggestion that it is or any effort to put it into this bill to try to buttress that position is flawed.

If it were the law, the Supreme Court of Canada in its two decisions of last July would have clearly referred to it, because of course it was pleaded before them. The Supreme Court of Canada didn’t even acknowledge in the two decisions the United Nations declaration. Why? Because it has nothing to do with the law today. Honourable senators, we need to keep that very much in mind.

Honourable senators, I brought this legislation forward because the Trans Mountain project is in the national interest of us all. Of course it’s of advantage to Alberta and to British Columbia, but it’s of advantage to Newfoundland, Prince Edward Island, Nova Scotia, New Brunswick, Ontario and Quebec.

We cannot allow a situation where the rule of law is flaunted, and we do not want to allow a situation where our prosperity is at risk because we can’t get projects built in this country.

Honourable senators, I urge you to support Bill S-245. I urge you to give the tools to the Government of Canada to allow them to move this project forward in Canadians’ interests.

Thank you very much, honourable senators, for your attention.