Can Burnaby Mayor Derek Corrigan win his long war against Kinder Morgan?
One front of the war will be waged in the courts
On most days, Patrick Smith walks his eight-year-old golden retriever near Kinder Morgan’s Westridge Terminal. This is where the Trans Mountain pipeline terminates and crude oil from Alberta is divided between the local Chevron refinery and an export sea terminal that feeds primarily Asian markets. The Simon Fraser University political scientist has lived in Burnaby for 25 years, chats regularly with his neighbors about the growing discontent with the project and is friendly with his colorful mayor, Derek Corrigan, who leads the local opposition to the proposed tripling of the pipeline to 890,000 barrels per day. “The pipeline was about the only thing anybody wanted to talk about,” Smith says. “The mayor has tapped into something that was already of interest to the community and, in a sense, that kind of arms him politically.”
Kennedy Stewart, the NDP MP for Burnaby-Douglas and the other local politician who’s leading the battle against Kinder Morgan, says that shortly after his election in 2011, constituents flooded his office with requests to help them participate in the National Energy Board’s review of the pipeline expansion. The flood soon turned into a tsunami. A September poll by Insights West found 63 per cent of Burnaby residents opposed the expansion while only 29 per cent were in favor. The numbers were not lost on Corrigan – described by both Patrick Smith and Kennedy Stewart as one of the savviest mayors in Canada – who turned the November municipal election into a referendum on Trans Mountain. He was resoundingly re-elected with 69 per cent of the vote, while his left-leaning Burnaby Citizens Association also swept council and the school board.
The plainspoken political brawler has vowed to use every tactic available to stop Kinder Morgan’s expansion plans. In December, after the U.S. energy giant won an injunction from the British Columbia Supreme Court to continue its survey work on Burnaby Mountain, while more than 100 protestors were arrested, the plain-speaking Corrigan told Vancouver media, “We are going to utilize the system in order to make sure that this doesn’t proceed. This is not the end of this. This is only the beginning of what is a long war to protect our rights.” Yep, them’s fightin’ words. But what might a “long war” over Trans Mountain mean?
One front of the war will be waged in the courts. And Margot Young, a University of B.C. law scholar, says Corrigan is standing on some pretty shaky legal ground. The Constitution of Canada assigns the regulation of natural resources to the provincial government, but gives Ottawa the right to regulate projects that cross provincial boundaries, such as pipelines. “It’s absolutely right that this pipeline lies within federal jurisdiction,” Young says. In fact, the University of Saskatchewan’s Dwight Newman says there is an abundance of case law stretching back to 1954 that establishes absolute federal power over interprovincial pipelines. The Supreme Court of Canada decided that year in Campbell-Bennett v. Comstock Midwestern that provinces could not meddle with pipelines over which the federal government had jurisdiction. A slew of cases since then has only reaffirmed federal authority in this area.
But can provinces and municipalities use the legislative tools at their disposal – permitting or zoning bylaws, for instance – to block Trans Mountain’s expansion? No. That tactic is effectively countered by the constitutional principle of “paramountcy,” according to both Young and Newman. “There can be provincial laws [or municipal bylaws] that affect pipelines, but they can’t prevent the exercise of the fundamental federal jurisdiction over interprovincial transportation,” says Newman. But let’s not forget that Corrigan is himself a lawyer (UBC Class of 1977; called to the bar in 1978) and clearly understands that the law always plays out in a much broader political context. “Smart lawyers know that public relations and political appearances matter,” Newman says. “And a smart lawyer like Corrigan knows the municipal containment that’s possible lies largely in his ability to articulate and lead the public opposition to this development. The federal government, and the company itself, have to take account of this.”
Corrigan was first elected to council in 1987 and over the next 15 years immersed himself in the byzantine world of Metro Vancouver politics, sitting on the numerous committees and authorities that somehow manage to co-ordinate the daily function of 21 municipalities and one First Nation. He has also worked on transportation issues at the municipal and provincial levels and spent four years as a director of the Federation of Canadian Municipalities, the national voice for municipal issues and affairs. As the director of the Institute of Governance Studies at SFU, Smith says those connections and track record show Corrigan shouldn’t be taken lightly. “I think he’s perceived very much as an honest, plainspoken politician,” he says. “The fact he’s been successful for 30 years answers the question of what he’s capable of.”
This is only the beginning of what is a long war to protect our rights.”
One thing the Burnaby mayor is quite capable of is keeping his allies onside. Take the local board of trade, which in January released the results of its “in-depth review” of the Trans Mountain project. Board president Paul Holden says the review was undertaken to inform the board’s 1,200 members and to serve as the basis for the board’s intervener submission to the National Energy Board.Not surprisingly, the report didn’t cast Kinder Morgan in a great light. While it acknowledged the importance of the energy industry in Western Canada, the report raised concerns about the impact of a large earthquake on the pipeline and the Burnaby Mountain tank farm, as well as what it claimed were minimal economic benefits for Burnaby and the provincial economy. The report went on to highlight the allegedly poor relationship Kinder Morgan had at the time with its “key stakeholders” in the community.
Most importantly, the Burnaby board of trade questioned the wisdom of twinning a pipeline through a densely populated city of some 220,000 people. “Considering the current urban nature of Burnaby, anticipated future growth and densification, and the necessity for much of the pipeline to follow a new route in Burnaby, the Burnaby Board of Trade questions whether Burnaby remains an appropriate terminus for this project,” the report concluded.
Daren Hancott, the Burnaby businessman who lost to Corrigan in last fall’s mayoral race, says the mayor has a stranglehold on local politics. Corrigan bleeds orange – his wife Kathy is the New Democrat MLA for Burnaby-Deer Lake and he has carried a party card for decades – and Hancott thinks the Kinder Morgan controversy begins and ends with the NDP agenda. Hancott says it’s no coincidence the mayor is leading the pipeline opposition with a federal election scheduled for the fall. In a letter to the Burnaby NewsLeader, Hancott accused Corrigan and his council of performing “political pundit roles in servitude to their NDP party in a federal election campaign year.”
Despite all that, Hancott is reluctant to comment on Corrigan’s personal leadership style, which has earned the mayor a reputation for being abrasive at times and vindictive to the few who oppose him. Former Burnaby councilor Garth Evans, elected to one term in 2005, calls the mayor “intimidating.” “He’s an aggressive, determined person and he makes life unpleasant for those opposing him,” Evans says. “He’s not willing to listen to others. He knows what he wants.” What Corrigan wants, says Evans, is what his narrow focus on Burnaby dictates. “His concerns don’t go beyond the immediate ones of the city, which explains a lot of his policies,” Evans says. “He’s not interested in being told that the Kinder Morgan pipeline will be of great benefit to the economy of the country. All he can see is that quite a few people in Burnaby are unhappy about it.”
Hancott and Evans say Corrigan has plenty of support for his fight against Kinder Morgan. While the mayor may not be in a great legal position to wage his ongoing poker game with the company and the National Energy Board, he still has a terrific hole card: local First Nations. There are no First Nations based in Burnaby, but Corrigan is allied with the nearby Tsleil-Waututh Nation, which has already launched a legal challenge against the Trans Mountain expansion. Chief Maureen Thomas is accusing the pipeline company and the energy board of running roughshod over the nation’s aboriginal rights and title. “Our nation has self-government authority to review and make decisions that affect our territory according to our own law,” Thomas said in a press release.
“Canada’s own environmental assessment laws confirm this jurisdiction, and the government’s failure to consult and co-operate with us as governments has landed them in court.”
A month later, the Supreme Court of Canada handed down its historic decision on what is known as the Tsilhqot’in case, granting aboriginal title on a large swath of central B.C. land to the Tsilhqot’in Nation. The key finding by the justices is that resource developers like Kinder Morgan must seek and receive consent from First Nations before operating on their traditional territory. Interpretations of the decision’s long-term impact vary. Tsilhqot’in chief Bernie Elkins and other supporters of the decision believe that it gives B.C.’s largely non-treaty First Nations a veto over development. Others, like professors Ken Coates and Dwight Newman, argue that the decision still allows governments to override aboriginal opposition under certain circumstances. But what virtually all observers agree on is that First Nations are now firmly seated at the table with governments and industry – and maybe even at the head of it. The timing of the Tsilhqot’in case could not have been better for Corrigan and the City of Burnaby, as it gives him a powerful ally with newly tested constitutional rights and a proven record of success in the courts.
Kinder Morgan hasn’t exactly helped its own cause of late either. In February, for instance, the company only responded to roughly half of the questions posed by Burnaby and Vancouver as part of the energy board’s review process, prompting Corrigan and Vancouver Mayor Gregor Robertson to condemn the project for withholding information and potentially endangering B.C. residents in the event of a spill. Then, in March, the company faced criticism after reporting an SFU professor to the RCMP for taking pictures of the site from public property. Smith, the longtime Burnaby resident and political scientist, says, “Things have the potential to get worse before they get better for Kinder Morgan, which has the legal license to proceed, but not the social license.” Given that the man standing between Kinder Morgan and that social license is Derek Corrigan, it’s hard to imagine them getting much better any time soon.
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