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The Kinder Morgan pipeline: permits or permission?

Prime Minister Justin Trudeau’s approval of the Kinder Morgan pipeline has raised a storm of protest about its predicted impacts on the orcas, climate change, First Nations’ rights, as well as concerns about the project’s “flawed” approval process and lack of “social licence”. Lawyer Andrew Roman contextualizes some of the hot-button issues raised by critics.

By Andrew Roman

Introduction

On March 1, 2016, Canada’s newly elected Prime Minister, Justin Trudeau, said, in a widely publicized “social licence” speech, that “governments grant permits but communities grant permission”. If the Canadian government had acted on the prime minister’s casual comment, nothing would ever be built. Both Canadian and foreign investors would take their money elsewhere, creating massive unemployment. In practice, no government, in any country, can afford to allow communities to overrule permits granted by governments.

Mr. Trudeau’s comment – seen by many as a clear promise – has raised more questions than it answered. If the government elected to govern the country grants a licence to build a pipeline, is that licence invalid until the company gets a second licence, a social licence, from the permission of unspecified “communities”? If so, what is the point of the licence from the government? For purposes of permission, how many people or how large a geographic area does it take to be recognized as a community with the authority to grant or deny permission? If a pipeline over 1,000 km long passes through dozens, if not hundreds of communities, does each community have a veto? Can the refusal of a single community stop the entire project? If not, how many communities, and, of those, which ones can grant a social licence? Are all communities equal in this calculus, or are some more important than others?

Mr. Trudeau’s social licence speech has also raised unrealistic expectations about the legal power of the residents of a community, who are accountable to no one else for the consequences of their decisions, and who have not been elected by anyone to veto the decisions of the elected government. There is no legal or constitutional foundation for the prime minister’s comment about social licence. Today, after his government has approved the Kinder Morgan pipeline, he probably regrets ever having said it. Given the response of environmental activists, several First Nation leaders and the mayors of several large British Columbia cities, the prime minister might just as well have hung a large sign on his back saying “Kick Me”.

Of course, just because the Prime Minister said something he probably should not have does not make the Kinder Morgan pipeline a bad project, any more than his approval of it makes it a good project. Well-informed opinions on the project are bound to differ, as are uninformed opinions. My concern is not to praise or attack the project – there has already been enough of both – but rather, to try to put some of the hot-button issues into perspective. In doing so, I will also focus on the question of the scope and reasonable limits of protest against a permit that, unless and until a court declares otherwise, has been lawfully granted by the elected government of Canada.

Making money on the backs of the orcas

Orcas are iconic marine mammals to Canadians, somewhat like pandas to the Chinese. Yet in some areas, orcas are endangered. Their need for protection is clear. But their vulnerability is also proving a wonderful opportunity for self-promotion and fundraising – for environmental advocacy groups and First Nations that attack the pipeline, as well as the National Energy Board and the prime minister, all in the name of the beloved whale. For example, this Guardian article dated October 16, 2016 says:

“The anticipated increase in tanker traffic will heighten the physical and acoustic disturbances in the water,” said Misty MacDuffee of Raincoast Conservation Foundation. “The noise of the propeller and the engine emits at a frequency that can mask the communication of the whales,” she said. “And the overall traffic combines to create sort of a din … so it reduces the actual space over which the whale can hear and be heard by other whales.”

The result could hamper the whales’ ability to catch food, she said. “They’ve got a unique diet, they’ve got a unique language in terms of their dialect and they’ve got a unique culture. And it’s that package that’s in jeopardy.”

Similar comments have been made on Raincoast’s website (which also features a big button labelled “Donate”). But what are the facts?

The orcas of the Salish Sea (also known as the southern resident orcas) are indeed endangered and are protected for that reason. Raincoast is right about that. There are only 80 individuals in this population, divided into three pods or groups. They are primarily endangered by the decrease in salmon habitat, which has decreased the numbers of salmon that these orcas feed on. However, these orcas do not live full-time in Burrard Inlet, at the end of the pipeline, where the tankers will be anchoring. Nor do they live in Vancouver waters, although they sometimes pass through them.

According to Wikipedia, the southern residents have been seen off the coast of Oregon, Washington, and Vancouver Island, and more recently, as far south as the coast of central California and as far north as the coast of Haida Gwaii. They travel around, for several hundred kilometers, for their food. Whether they encounter noise from a ship depends on where orcas are at any particular time and their proximity to any particular vessel. All modern ships have engines and propellers, not just tankers. All of them make noise. So do recreational vessels with their inboard or outboard motors.

The Port of Vancouver (which is not the only port on the West Coast near the orcas) is one of the busiest in North America. According to statistics on the port’s website, in 2015 there were 3,128 foreign vessel arrivals (approximately 8.6 per day, assuming 365 days a year operation). For every inbound trip there would also be the outbound trip: over 6,200 trips per year, each and every year. The Kinder Morgan pipeline at full operation is estimated to load 400 vessels per year (just over 1 per day), an increase in vessel traffic of approximately 12.8%. All other things being equal, there should be an increase in vessel noise of 12.8% in the immediate area, without even considering Vancouver Island or the nearby US ports like Blaine. But all other things are far from equal.

The loudness of sound underwater reduces roughly in accordance with the inverse square law: if you double the distance from the sound source the loudness is not cut in half but cut to a quarter of the loudness at the source. (Actually, for shorter distances underwater, under 10 km, the observed sound is reduced more than the inverse square law suggests.) Thus, proximity of vessels to the orcas is the most important determinant of what they will hear. Counting the number of vessels without knowing their proximity to the orcas is not very meaningful. A small vessel close to the orcas can be many times more disturbing to them than a much larger vessel further away.

Raising the alarm over increased traffic causing increased noise that will disrupt the orcas’ ability to find food requires consideration of the noise that is already present. Earlier this year I happened to be visiting Vancouver and noticed on the city’s website its promotion of whale watching tours. I took such a tour with one of the recommended operators. The staff of our vessel told me that on their outing the previous day they had had to travel 50 km or more to find the nearest pod of orcas. However, as luck had it, on our trip they found them in English Bay, not far from the University of British Columbia. As was the usual practice, the captains of several whale-watching boats communicated with each other to help find the orcas. When one of them found the pod and radioed the others, they all converged on the pod, and followed them wherever they went, for at least an hour. Typically, the orcas were in close proximity to three or four ships with their engines running. Such closeness benefits all the tourists taking photos with their mobile phones and point-and-shoot cameras.

I took the photographs below on this trip.

whale-watchers

whale-watcherstoo
whale-watchers-three

One of the ironic statements being made by some of the pipeline protesters is that the valuable revenue from eco-tourism, including whale watching, will be jeopardized by the increase in noise from tanker traffic. These critics have it backwards. The whale-watching vessels treat the orcas like captive animals in a marine zoo. The orcas cannot escape from the noise of several engines at a distance of perhaps50-100 m, on one or two such trips a day. This has to create far more disturbing ambient noise than the tankers will create. If engine and propeller noise creates problems with echolocation that makes it difficult for orcas to feed, yet this level of close-up noise from whale-watching vessels is not harmful, how realistic is the concern about a single tanker a day that may be many kilometers away from the orcas?

Raincoast’s assertion that science shows the increase in tankers will increase the stress on an endangered species is literally true, but practically trivial. People with science degrees can also be political. If you want to save the orcas from starvation, first, find a way to increase their salmon supply, and second, decrease the whale-watching trips, while prosecuting vessel owners/operators who approach them more closely than a prescribed minimum distance. Otherwise, they will soon become extinct with or without the pipeline.

This vastly overstated risk about noise from tankers, while saying nothing about noise from much closer vessels, is misleading, yet now widely believed. It reveals the arbitrariness of the idea of social licence. Social licence is granted to local businesses which exploit the orcas for profit. Their vessels practically sit on top of them while they are trying to feed. Green Party leader Elizabeth May has not offered to go to jail if the whale-watching vessels are allowed to keep up their relentless noise right near the orcas. Yet the conventional wisdom now is that a licence should be denied to a “Texas based” pipeline company whose vessels will likely be far less disturbing in terms of noise. As the whale-watching industry is promoted on the City of Vancouver’s website and is not controlled by the federal government, we should assume that the daily watching of the orcas from close-up is not a danger to their echolocation. In that case, it seems rather unrealistic to insist that one tanker a day from a much greater, probably inaudible distance will result in the orcas’ extinction, while stopping the pipeline will preserve them.

The problem with such unrealistic environmental alarms in the age of social media is that they go viral. Through sheer repetition they become presented in media reports as established facts. This then translates into political pressure. If the alarm is a false alarm, and the prime minister, knowing it to be false, decides not to act on it, he is vilified as a traitor rather than praised as a statesman. Unfortunately for him, and for the country, it was the prime minister who raised unrealistic expectations with his “social licence” speech, now being interpreted as a broken promise to stop the pipeline.

First Nations’ legal rights do not include a veto

DeSmog Canada on November 4, 2016 published the following quote from Caitlyn Vernon, the campaigns director of Sierra Club of BC:

“And yet, their report [the three-member ministerial panel on the Kinder Morgan pipeline] reinforced what we’ve been hearing from British Columbians about this project,” Sierra Club BC campaigns director Caitlyn Vernon says. “How do you do this in the face of First Nations opposition and the UN Declaration on the Rights of Indigenous Peoples. You don’t. How do you do this in the face of Canada’s climate change commitments? You don’t.”

The Tsleil-Waututh First Nation has been the leading First Nation opposed to the pipeline. Its population of approximately 500 people is now centered around the Burrard Inlet, between Maplewood Flats and Deep Cove in North Vancouver, a highly urban area. If the pipeline is built as per the proposed route it would terminate fairly close to this location, creating the nuisance of increased tanker traffic. Of course, this nuisance would affect not only this First Nation, but also its non-aboriginal North Vancouver neighbours.

Under Canadian aboriginal law thus far, as I understand it, governments have a duty to engage in meaningful consultation with First Nations for activities and projects which affect them, so that their concerns and interests may be taken into account.

As the Tsleil-Waututh live in North Vancouver, they do not subsist on hunting and fishing or otherwise living off the land. Nor could they if they wished to, living in the middle of a major city. They have a number of businesses, including property development and the building of homes. Undoubtedly, the termination of the pipeline near these businesses will not increase their value. It is entirely understandable that this First Nation would be opposed to the pipeline. If I was a member of this First Nation I, too, would be opposed to the pipeline, as there is no benefit in it for them. The only issue is what kind of opposition is legal and legitimate.

The Tsleil-Waututh are affected in the same way as their Vancouver neighbours on either side of them. It affects their property values, not their survival.

Despite this, because this is a First Nation, the honour of the Crown creates a constitutional duty of consultation for the government of Canada, a duty which does not exist for the Tsleil-Waututh’s North Vancouver neighbours. What is­­­­ reasonable consultation will vary with the circumstances of each case. I am in no position to determine whether the consultation that has already taken place would pass or fail the test. However, I am not aware of any Canadian judicial decision that extends the duty of consultation to include the duty to obtain consent to a project such as a pipeline that does not cross or touch the First Nation’s land.

Let us look closely at the arguments based on the UN Declaration on the Rights of Indigenous Peoples. It is quite common to quote a small part of that, which states: “… the free, prior and informed consent of the indigenous peoples concerned…”. On its face, this short extract has been interpreted as meaning that as Canada has signed this declaration, it has given First Nations the legal right to refuse to consent to a project of concern to them. However, these words are usually quoted out of context, and do not support that argument. Let us look at the entire text of the declaration, from which this shorter quotation is extracted. The word “consent” appears in the declaration in six places, sometimes as a requirement, sometimes as a goal but not a requirement.

Article 10 says that indigenous peoples shall not be forcibly removed from their lands or territories without the free, prior and informed consent of the indigenous peoples concerned. Similarly, Article 11 requires consent if cultural, intellectual, religious and spiritual property is to be taken. Unless the pipeline company will be forcibly removing the Tsleil-Waututh from their homes in North Vancouver or taking any of their cultural, intellectual, religious or spiritual property, neither of those articles are relevant to the pipeline situation.

Article 19 creates a duty to consult and cooperate in good faith with indigenous people concerned, in order to obtain their consent before adopting and implementing legislative or administrative measures that may affect them. The duty is to consult and cooperate, for the purpose of obtaining consent. The duty is not to obtain consent. Why would Article 19 even mention the duty to consult and cooperate if consent was also a duty? The duty to consult and cooperate would be redundant, as all Article 19 would need to say is that there is a duty to obtain consent. This interpretation is reinforced by the use of the expression “may affect”. Why would a government need someone’s consent to something that may – or may not – affect them? Reading it carefully, therefore, it becomes clear that the purpose of Article 19 is to require good-faith consultation so that the First Nations’ concerns and interests are taken into account, with the goal of obtaining their agreement through consultation, if possible. This article does not, as written, grant a veto to the First Nation.

Article 28 expresses indigenous peoples’ right to redress through restitution or compensation for lands, territories and resources which they have traditionally owned or occupied which have been confiscated, taken, occupied, used or damaged without their consent. Unless this pipeline is taking, using or damaging any lands, territories or resources without compensation, Article 28 has no application to this pipeline. In any event, the National Energy Board Act contains detailed compensation provisions requiring pipelines to compensate anyone whose property is harmed by the pipeline.

Article 29, paragraph 2, requires governments to take effective measures to ensure that no storage or disposal of hazardous materials shall take place on their lands or in their territories without their consent. Unless Kinder Morgan has proposed the North Vancouver residential area occupied by Tsleil-Waututh be used as a storage or disposal site for hazardous materials, Article 29 also has no application.

Article 32, paragraph 2, creates a “consult and cooperate in good faith” requirement, like Article 19. This is for the purpose of obtaining consent if possible, prior to approving any project affecting the First Nation’s lands or territories. Article 32 mentions that this duty applies particularly for the development, utilization or exploitation of mineral, water or other resources. I have not studied the aboriginal title or other aboriginal claims/rights of the Tsleil-Waututh, but I note that their website page titled “Our Territory” acknowledges, in the last sentence on the page, that: “Finding equitable ways to assert constitutionally protected aboriginal rights over the area involves a multifaceted approach, but one that prescribes Tsleil-Waututh inclusion in all decision-making processes involving our traditional territory.” I would agree with that statement, provided that the description of the traditional territory is accurate and properly supported.

However, recent media quotations attributed to leaders of this First Nation appear to go much further in asserting legal rights. According to the APTN National News of November 28, 2016, Ruben George, Tsleil-Waututh Sacred Trust Initiative Manager, told Natural Resources Minister Jim Carr, “we oppose this pipeline, will do what it takes, period, to stop it.” In a reference to the violent protests at Standing Rock in the US, Mr. George is quoted as having said “Standing Rock – I believe Canadians and the government wouldn’t want that. People are being shot. A lady’s arm was blown off.” As well, on November 30, 2016, the Tsleil-Waututh is quoted by APTN as vowing to ensure the project will never reach completion.

This kind of public statement by Mr. George and the ambiguous vow quoted could be interpreted as nothing more than a court challenge, but also, as a threat to use violence or other coercive means if the court challenge fails, or takes too long. Spokesperson Charlene Aleck is quoted in the November 30 story as saying that, “Their permits are illegitimate, I believe they will be thrown out in court.” If the courts decide to uphold the permits, she does not say whether she will use extra-legal means “to ensure the project will never reach completion”.

I have no objection to court challenges to any governmental action. And, Ms. Aleck is entitled to her prediction of future court decisions. But there is nothing in Canadian law or in our Constitution that would give any First Nation a veto right over a decision of this kind made by the government of Canada. The right to be consulted properly and fully is constitutionally protected, but that is the limit of the right. To assert a constitutional right to veto the prime minister is wishful thinking.

Not surprisingly, the usual First Nation court action is based on allegations of inadequate or insufficient consultation. How much consultation is enough is a question only the courts can answer, but if the consultation has been reasonable and the honour of the Crown upheld, the First Nation cannot expect success in court. Other First Nations who are not in any way affected by the pipeline would probably lack legal standing to mount court challenges on their own. They could intervene to support the Tsleil-Waututh, who had the right to be consulted, but such support is more symbolic than meaningful. If the First Nation with the right to be consulted has a valid factual basis for asserting that the consultation was inadequate it will win in court; if the facts don’t support its position the support of other First Nations will not help it either.

The Climate Change issue

The Trudeau government has made a commitment on behalf of Canada to reduce greenhouse gas emissions by 30 per cent from 2005 levels by the year 2030. That is approximately 14 years from now.

The ministerial panel (appointed to consider the pipeline issues that may have been missed or inadequately covered by the National Energy Board) received thousands of submissions. Many of these asserted that the approval of the pipeline meant that it could be demonstrated mathematically that there was now no possible way of achieving this commitment. Of course, 2030 has not yet arrived, and a lot can happen in 14 years.

The mathematical prediction that the reductions promised cannot be achieved has to be based on the questionable assumption that the only variable is the pipeline and that all other things will remain unchanged. Put simply, it is a calculation based on nothing more than a guess about the future. However, the prime minister has said that he will be developing a comprehensive climate change plan to make good on Canada’s commitment. If that plan is good enough, and is implemented properly, how can anyone demonstrate mathematically that this as yet unseen plan cannot work?

The process of review was fatally flawed

As someone who has worked in several large federal and provincial project reviews, including environmental assessments, I have seen that there is no such thing as a perfect review. We are all flawed human beings, and every project review we conduct will be to some degree flawed. And particularly so from the viewpoint of the participants or outsider observers who disagree with the result.

Those who don’t like the result invariably argue that the process used to reach it was fatally flawed. (If the NEB disagreed with me, the process must be fatally flawed.) They usually cite two generic fatal flaws:

  1. the failure to have sufficient evidence on, or even to consider factors X, Y or Z; and
  2. the failure to listen to everyone who wanted to make a presentation at a public hearing.

These criticisms are often based on unrealistic ideas about the purpose of a regulatory review of a pipeline application, and how it is supposed to be conducted.

Parliament did not create the National Energy Board to ensure that the oil would be kept in the ground while the governments of various nations evolve towards a low carbon, off-oil economy. Nowhere in the National Energy Board Act is there reference to climate change. Parliament created the NEB to review applications to construct pipelines, and to approve them if the Board is satisfied that they meet the statutory criteria. The NEB’s Act specifically requires the Board to conduct its proceedings as expeditiously as possible, and even sets a 15 month time limit on environmental assessments. Without such time limits, public hearings would drag on, and before they finished, so many facts would have changed that the application would have to be re-filed, starting the whole process over again.

Opponents who do not want a pipeline to be approved would be perfectly happy to have the hearing process go on indefinitely. They will be upset if the NEB refuses to hear from each of hundreds of individuals and groups who may have no special knowledge to contribute but want to make the same points over and over again to drag out the process. In fairness to an applicant, however, the Act requires the Board to do its work within a reasonably short time. Therefore, the Board must limit the length of its hearing and the scope of its consideration to factors that are directly relevant to the application before it, based on sound evidence, not speculation.

An often repeated criticism is that the Board failed to consider or give adequate weight to Canada’s greenhouse gas reduction commitments. This criticism misses the point. The pipeline itself will not be a significant emitter. The applicant is not responsible for Canada’s greenhouse gas reduction commitments. Whether a secondary or tertiary effect of the pipeline is to increase greenhouse gas emissions is of little or no relevance to the pipeline approval decision itself. Furthermore, as noted above, what the government of Canada does in future plans for carbon taxes and other remedial measures is not yet known, and therefore, speculation about it cannot be presented as weighty evidence in a hearing. Indeed, if US President-elect Donald Trump keeps his promise to tear up the US commitment to the Paris Accord, it may be very difficult for Canada to afford to do anything to keep its commitment.

In seeking to attack a process as fatally flawed, it does not take a lot of imagination to make up a list of factors that the regulator did not consider that is longer than the list that it did consider. Some of these factors would be of marginal or no relevance, or highly speculative, although some might, arguably, have been considered if there had been sufficient time to do so. That is why I have said that every such process is bound to have some flaws. Whether it is a fatal flaw – one that would cause a court on judicial review to set aside the entire hearing – depends on whether the NEB was so unreasonable in failing to consider the issue that the court feels obligated to overrule the Board and make it conduct the whole process over again. It is not enough for a judge to find that if the matter had been before this court instead of the NEB, the judge might have done things differently. For overruling, the decision must fall outside of the range of possible reasonable decisions. That is a very difficult test to meet.

Similarly, for the cabinet or the government to overrule the NEB by rejecting its recommendation, it must find something grossly unreasonable to justify political interference. If there is frequent and unpredictable political interference with the results of years of work by an expert regulatory body, the NEB will just become the slow way to the cabinet, with all decisions being effectively politicized. The cabinet does not have the expertise to make such decisions on its own, even with the assistance of the public service, and it certainly would not be in a position to hold any public hearings. If you think the present process is fatally flawed, just consider what a more politicized process would be like. Decisions would be made by the influence of lobbyists working behind closed doors, with allegations of favoritism for those who had made donations to the party in power.

Before we leave the “fatally flawed” issue, let us assume, for the sake of argument, that the NEB had recommended against the pipeline and the government had accepted that recommendation. A lot of interested parties could then argue that the process that led to the denial of the application was fatally flawed. Businesses and unions in Alberta that would lose opportunities for significant new revenue would claim that their interests were not considered. For example, assume that the NEB would (in my view quite appropriately) have refused to receive evidence from economists, psychologists and sociologists on the human impact on families of unemployment in the Alberta oil industry: loss of income, loss of homes, increased alcoholism, mental problems and suicides, etc. Again, these would be secondary or tertiary effects for which neither the pipeline applicant nor the Board has responsibility, and for which the evidence would be rather speculative.

Yet for the people experiencing these effects, their impact is very real. Would their complaint that the process that led to the negative decision was fatally flawed be entitled to any less judicial or political consideration than the complaint about climate change? All flaws are not necessarily fatal. Ultimately, there must be finality in every decision-making process.

More recently, some scientists have complained that there is no science available about how to clean up a potential spill of bitumen that will be mixed with an unknown solvent. This is given as the reason why the application should have been refused. These scientists seem unaware that the NEB Act does not permit a pipeline company to begin to operate a pipeline that it has constructed based on the construction permit alone. Section 47 of the Act states:

47 (1) No pipeline and no section of a pipeline shall be opened for the transmission of hydrocarbons or any other commodity by a company until leave to do so has been obtained from the Board.

(2) Leave may be granted by the Board under this section if the Board is satisfied that the pipeline may safely be opened for transmission.

Presumably, the Board will want to know what will be in the pipeline, and how a spill on land or in water is to be cleaned up, before it allows the pipeline operator to open the valve for transmission. This is a reasonable and necessary precondition to approving the operation of the pipeline but not a necessary precondition to approving its construction. Once the pipeline company has invested its billions as a sunk cost in the ground, the NEB will have greater leverage over it to ensure that it can be safely open for transmission, as required by section 47. Scientists who want to criticize a regulatory process need to understand more than just their science. They need to understand the legal context within which a series of regulatory approvals will be granted or denied.

There have been serious concerns expressed by both levels of government about the capacity of the Coast Guard on the BC coast to contain and clean up a hydrocarbon spill, if need be. Again, this is nothing the pipeline company can do anything about; it is the responsibility of the government of Canada. The prime minister has promised to make a considerable investment in enhancing the Coast Guard’s spill response capability. I would agree that this investment has to be made and that the Coast Guard be trained and ready to go before the pipeline valve is opened. It is not a fatal flaw, however, for the NEB not to require this prior to approving pipeline construction.

“We will not let it happen”

On the Greenpeace Canada website appears this huge headline: “Two new tar sands pipelines approved: We will not let them be built.” This language is similar to Mr. George’s threat that he “will do what it takes, period, to stop it.”

A democracy elects a government to make final decisions about projects, subject only to constitutional limitations. If threats of obstructive or violent protests overturn government decisions, that sends the signal that self-appointed protesters are more powerful than the prime minister. At that point the country is no longer a democracy, it is something that might as well be called a protestocracy.

But, if protest works to get what you want, what is wrong with that? Look at what it did for the Sioux Nation in North Dakota a few days ago!

Every protest movement will, if it is successful, create winners and losers. The winners in the Kinder Morgan case will be the managers of the NGOs who obtain many new donations to support their protests, and the Tsleil-Waututh First Nation. The losers will be not only the Alberta oil industry but indirectly, all Canadians other than the winners. That is because the Canadian economy depends on a consistent and predictable regime for evaluating permit applications for the construction of projects. If we demonstrate to the world that playing by the rules is only for suckers, but the real game is all about protest, who will want to invest in Canada?

If there was evidence that Kinder Morgan’s application to the NEB, or the NEB’s conduct of the hearing was inconsistent with the applicable law or the Constitution of Canada, then there is a high probability that a court will overrule it. This makes physical obstruction or violent protest unnecessary. If the evidence is to the contrary, that both the applicant and the regulator complied with the applicable law, this makes physical obstruction or violent protest improper. In either case, protest that is obstructive rather than peaceful is anti-democratic. It is an improper interference with democratic decision-making and unfair to all those Canadians who are not protesters.

If the government rewards protesters it encourages more and more protests. These protests have to escalate in severity to be taken seriously. If, hypothetically, 5,000 signatures on a petition and 10,000 protesters marching in the streets of Vancouver is a good enough protest to reverse a government decision in 2016, in future years the response will be “so what, we’ve seen that before”. It will then take 10,000 signatures and 200,000 marchers to be noticed. Meanwhile, how is this escalation of protest seen by ordinary Canadians of the “silent majority”? Inevitably, the pendulum swings back.

The Obama administration in the US instructed the US Army Corps to change the final part of an almost completed pipeline route, to end the protests over the Dakota Access pipeline. However, ironically, it was the dissatisfaction of a large segment of US voters tired of watching their government for decades appear to give into vocal minorities that bolstered the election opportunities of Donald Trump for the presidency and Republicans for the Congress.

In the Wall Street Journal edition dated December 6, 2016, Republican congressman Kevin Cramer wrote a stinging rebuke to the “political expediency in a White House that does not see itself as being bound by the rule of law”. While this is clearly a partisan comment, it is difficult to avoid the conclusion that rewarding an illegal occupation by making it successful only encourages more of the same.

The Canadian Charter of Rights and Freedoms, the centerpiece of our Constitution, begins with the preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law …”. The rule of law does not permit protest to overrule the prime minister. If Prime Minister Trudeau capitulates to illegal protests, will that not facilitate our next prime minister being more like Stephen Harper was, or Donald Trump is, than Justin Trudeau?

In a legal career spanning more than 40 years, Andrew Roman has advised and represented environmental groups, First Nations, federal, provincial and municipal governments and domestic and international corporations, in every province and territory of Canada. His areas of professional experience include constitutional, administrative/regulatory and environmental law. Andrew has appeared before all levels of court and numerous regulatory tribunals, including the National Energy Board. He has advised federal and provincial environmental assessment panels in cases involving pipelines and other major projects. Andrew has been an adjunct faculty member at four law schools (UVic, UBC, Calgary and Osgoode Hall) and is the author of more than 90 published articles and a book. Andrew Roman sits on the board for the umbrella organization Probe International belongs to (see Energy Probe Research Foundation).

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