Why did Kinder Morgan panel chair publish her opinion before hearings conclude?
Can you imagine a judge publishing her opinion on a criminal trial before either side has finished presenting evidence? Such an extraordinary legal error would trigger an immediate mistrial. Yet when the chair of a panel reviewing a major pipeline proposal submitted an op-ed to the Globe and Mail this week in the middle of hearings, federal bureaucrats made no effort to stop her. In fact, it may have been their idea.
Kim Baird was appointed by Natural Resources Minister Jim Carr to lead the Liberal government’s review of Kinder Morgan’s Trans Mountain pipeline and oil tanker expansion. Baird, a registered oil & gas lobbyist, is also a former elected chief of the Tsawwassen First Nation in British Columbia. During 2009 and 2010 she participated in a multi-month “executive exchange” with Kinder Morgan Canada CEO Ian Anderson, after which she signed a partnership agreement to share staff between the pipeline company and Tsawwassen First Nation.
Despite concerns over conflict of interest, panel hearings went ahead during the summer months in select communities along the pipeline route. I attended town hall sessions in Burnaby and Vancouver, where literally 100 per cent of speakers declared themselves opposed. The panel chair acknowledged as much when questioned by a Victoria Times Colonist reporter ahead of hearings in that city: “Very few people, if any, have stood up in favour of the project,” Baird said.
Yet in a bizarre op-ed published in Monday’s paper under Baird’s name, she cites “impatience” as the first of four themes she has drawn from the panel hearings so far: “Many presenters in industry, business and labour organizations have endorsed the [National Energy Board] report and urged a quick and favourable decision. They say that without tidewater access for oil-sands bitumen, Canada is stuck taking a discounted price from our only buyers in the United States.”
Whoever said that is misleading the panel. Industry data show that for the last year and a half, U.S. refineries have consistently paid more for heavy oil than refineries in Europe or Asia. What contrary information is Baird relying upon? The public has no way of knowing. One of the most astonishing features of this new process is that it keeps no records beyond the panellists’ hand-written notes. There is no list of speakers, no video or audio, and no transcripts. So it is impossible to verify Baird’s opinion against what was actually said.
The federal cabinet is due to say yes or no to this project in December, partly on the basis of Baird’s report. This project, and the oil sands expansion it would lock in, represents a fork in the road for a Liberal government that has promised leadership in the face of dangerous climate change. As it turns out, this momentous decision will hang largely on the scribbled recollections of an oil & gas lobbyist whose principal takeaway from hearings thus far has been impatience to get the thing approved.
Prime Minister Trudeau promised a rigorous and transparent “redo” of the Kinder Morgan review as part of a wider overhaul of the National Energy Board — whose membership and mandate were set by the previous Conservative government. Instead, Trudeau has kept the NEB unchanged so it could carry on with reviews of both the Trans Mountain and Energy East projects, under the old rules.
Rather than fix the process and start over, the government has spent the entire summer trying to distract from the discredited NEB process with this improvised ministerial panel. Faced with complaints at each stop about the poor organization, rushed timeline and lack of rigour, the panel’s first instinct was not to address the problems, but to mollify critics with a newspaper op-ed.
This should be troubling not only to oil tanker opponents in B.C., but anyone who cares about procedural fairness and the rule of law. Consultation is a waste of everyone’s time if the government has already made up its mind. This week’s premature op-ed would suggest the Natural Resources ministry is more interested in advancing the oil industry’s opinions than listening to those of Canadians.
Monday, as hearings continued in Victoria, panel member Tony Penikett abruptly left. With no provisions for his replacement, his paper name card sat abandoned as local First Nations and municipal officials did their best to get their points across to the remaining two panellists. It was a fitting end to a slapdash process. Next time the government might as well save the money and let citizens speak to an empty chair.