Citizen Action Monitor

Will First Nation’s court action force Ottawa to release pipeline decision-rigging secrets?

Ottawa’s response ignores rigging allegations, echoes KM’s “too late” reply, and argues First Nation is just fishing for “supplemental evidence.”

No 2208 Posted by fw, April 28, 2018

Mike De Souza

“A lawyer for energy giant Kinder Morgan is warning that its Trans Mountain expansion project is facing ‘significant and unwarranted delay’ following an unexpected legal letter filed Thursday in the wake of dramatic revelations reported by National Observer about the project’s approval by the Trudeau government. Maureen Killoran, a Canadian lawyer for the Texas-based company, drafted the warning in a letter filed Friday with the Federal Court of Appeal in response to a request filed on Thursday by the Tsleil-Waututh Nation in B.C.. … ‘on the basis of the description of the proposed motion set out in the TWN Letter, Canada does not agree that it is the type of ‘urgent motion, such as requests for emergency injunctive relief’ that the Court contemplated would be governed by… the Procedural Order. Rather, the motion appears to constitute a further attempt by TWN to seek supplemental evidence.’ Brongers’ letter also echoed concerns raised by Kinder Morgan that the motion could lead to more delays.”Mike De Souza, National Observer

In what may have been an afterthought to his article, the Observer’s Managing Editor Mike De Souza writes:

“Not sure what KM’s lawyer strategy here. Seems the court would have a hard time making a judgement without considering the possibility the gov’t withheld documents. My guess is they will consider this hidden evidence and it will sway the decision. Good. This case is the most likely to succeed — and when it does, result in full retreat by the gov’t and their slimy oil overlords…”

Two thumbs way up for the Observer as it continues to astonish readers with its daily, information-rich reporting.

Below is a repost of De Souza’s article along with my added subheadings and text highlighting. To read the piece on the Observer’s website, click on the following linked title.

**********

Kinder Morgan warns of ‘significant’ delay after court urged to consider release of Trudeau government secrets by Mike De Souza, National Observer, April 27, 2018

#56 of 56 articles from the Special Report: Kinder Morgan

Kinder Morgan lawyer warns of “significant delay” in response to Tsleil-Waututh Nation court action

A lawyer for energy giant Kinder Morgan is warning that its Trans Mountain expansion project is facing “significant and unwarranted delay” following an unexpected legal letter filed Thursday in the wake of dramatic revelations reported by National Observer about the project’s approval by the Trudeau government. Maureen Killoran, a Canadian lawyer for the Texas-based company, drafted the warning in a letter filed Friday with the Federal Court of Appeal in response to a request filed on Thursday by the Tsleil-Waututh Nation in B.C..

TWN charge Ottawa acted in bad faith by rigging internal review process in KM’s favour

The Tsleil-Waututh Nation is challenging Prime Minister Justin Trudeau’s approval of the Kinder Morgan project at the Federal Court of Appeal, arguing that the government failed in its legal duty to consult First Nations prior to making its decision. In a letter sent to the court on Thursday, Scott Smith, a lawyer representing the Tsleil-Waututh Nation (TWN), wrote that two recent reports by National Observer confirm allegations it had previously raised that Trudeau’s government acted in “bad faith” and is withholding documents that show what happened during its internal review.

TWN lawyer asks Federal Court of Appeal to compel Ottawa to release “secret records” revealed by National Observer

As a result, Smith sent a letter to the court, giving notice that it intended to introduce a motion to compel the Trudeau government to cough up its secret records about the review of the pipeline project.

It is TWN’s position that such new evidence of bad faith and dishonorable conduct by Canada… would be directly relevant to the Court’s consideration of whether Canada discharged its duty to consult TWN,” Smith wrote in a letter to the court dated April 26.

The request from Smith is unusual, given that the case had already been heard last fall with a decision expected by the court this spring. But Smith argued in his letter that there was a legal precedent for the court to address the new allegations raised in reports from National Observer.

Secret documents reveal bureaucrats were instructed to find a way to approve the pipeline project

In his submission, Smith cited a report published by National Observer on April 18 that revealed federal officials sped up their timeline for the review of the Trans Mountain project following a phone call from Kinder Morgan Canada’s president Ian Anderson. He also cited a report published by National Observer on April 24 that quoted public servants who said they were instructed to find a way to approve the project during an internal meeting

Ottawa deceived TWN into believing the government had not yet reached a final pipeline decision

In short, it would appear that this evidence, which was not disclosed and in regard to which TWN had no prior knowledge, corroborates TWN’s allegation and suggest, in the words of the relevant media coverage, that internal federal government employees were instructed ‘at least one month before the pipeline was approved, to give cabinet a legally-sound basis to say ‘yes’ to Trans Mountain… at a time when the government claimed it was still consulting in good faith with First Nations and had not yet come to a final decision on the pipeline,” Smith wrote.

In response to TWN’s request, the court promptly asked Ottawa and other stakeholders to reply to allegations first reported by National Observer

The court responded to Smith’s letter promptly, asking the federal government and other stakeholders to provide their responses to the request by the end of the day on Friday.

“It’s too late,” replied Kinder Morgan’s lawyer

In her response, Killoran said it was too late.

Based on information contained in two articles published in the National Observer, TWN now seeks to gather additional evidence more than six months following the close of submissions,” she wrote. “The relief sought by TWN will introduce significant and unwarranted delay.

Killoran also noted that the Tsleil-Waututh Nation had previously requested the release of documents through a motion that was rejected by the court in June 2017 “because (among other things) it was not persuaded that Canada withheld any information that was required to be produced.” The Court also noted that TWN had an opportunity to test Canada’s document production, and/or seek additional documents, on cross examination.

Finally, there are no exceptional circumstances that justify reopening the evidentiary record for the consolidated proceedings,” Killoran wrote. “On the contrary, it is highly unlikely that the motion will uncover additional producible evidence; even if such evidence exists (which is denied), it has no influence on the outcome of this case.”

Justice Department proposes two-week process to handle Tsleil-Waututh motion

Ottawa’s reply ignores rigging allegations, echoes KM lawyer, and alleges First Nation is just “attempting to seek supplemental evidence”

The federal government responded at the end of the day with a statement that didn’t address any of the allegations raised in the National Observer reports directly. It also proposed a two-week process to deal with the motion and responses from the affected parties.

Canada takes no position on whether TWN ought to be permitted to bring this motion at this late date, over six months after the hearing of these proceedings has concluded,” wrote Jan Brongers, senior general counsel from the B.C. regional office of the federal government’s Justice Department.

That said, on the basis of the description of the proposed motion set out in the TWN Letter, Canada does not agree that it is the type of ‘urgent motion, such as requests for emergency injunctive relief’ that the Court contemplated would be governed by… the Procedural Order. Rather, the motion appears to constitute a further attempt by TWN to seek supplemental evidence.”

Brongers’ letter also echoed concerns raised by Kinder Morgan that the motion could lead to more delays.

Canada notes that TWN’s proposed motion has the potential to delay adjudication of the consolidated proceedings, which, as noted above, have already been under reserve for a considerable time,” Brongers wrote. “Accordingly, Canada submits that if TWN is permitted to bring this motion at this late date, it ought to be filed and served forthwith.”

De Souza adds this comment —

Not sure what KM’s lawyer strategy here. Seems the court would have a hard time making a judgement without considering the possibility the gov’t withheld documents. My guess is they will consider this hidden evidence and it will sway the decision.

Good. This case is the most likely to succeed — and when it does, result in full retreat by the gov’t and their slimy oil overlords…

FAIR USE NOTICE – For details click here

Information

This entry was posted on April 28, 2018 by in evidence based counterpower, Indigenous people's counterpower.
%d bloggers like this: