Thank you for writing regarding my recent arrest at the Kinder Morgan worksite. I appreciate having a chance to explain why I chose to take this controversial step in opposition to the Trans Mountain pipeline expansion project. I apologize for the delay in responding.
It was not my intention to cause offense by my actions. In fact, it was for the sake of defending my beautiful riding from enormous environmental damage – and subsequent damage to its tourism economy – that I took this stand. Many of my constituents have been on the frontlines in Burnaby; many more wish to join the protests but are unable to do so. I entered the worksite on March 23rd in solidarity with First Nations and with these and many other concerned citizens across the country.
I would add that MP Stewart and I are not the first sitting MPs to get arrested. Svend Robinson (former MP, Burnaby-Kingsway) was arrested on a similar issue during the Clayoquot Sound protests in 1993. Bob Rae was arrested protesting clear-cutting in the Temagami forest while serving as an MPP. He went on to become the premier of Ontario and is currently Canada’s special envoy to Myanmar. UK Green MP Caroline Lucas was taken into custody while protesting the fracking firm Cuadrilla in 2013. She won the next two elections with increasing majorities.
That said, as an elected representative and formerly a practicing lawyer, I do not take disobeying a court injunction lightly. But it is the responsibility of our courts to uphold all our laws, even bad ones. There is no mistaking that the 2012 omnibus budget Bill C-38 that empowered the National Energy Board (NEB) to take charge of pipeline assessments was a bad law. The result in Kinder Morgan’s case was a breathtaking abuse of the normal rules for procedural fairness. This was with no other purpose than to fast-track the pipeline without properly understanding its impact on the environment, on jobs and the GDP, on Canada’s Treaty obligations and on our energy security.
Make no mistake, the Trans Mountain pipeline fails on all these fronts:
But my principal concern is that the broken process by which this pipeline was approved sets a terrible precedent. If our governments are not just looking the other way but advancing corporate interests ahead of the public, we are in deep trouble.
Thankfully, we have a robust system of appeals that allows for a careful re-examination of cases where there is potential conflict with our Constitution. 18 separate challenges have been mounted against Kinder Morgan in the Federal Court of Appeal, ranging from side-stepping Indigenous consultation to violating the Endangered Species Act. I have full confidence in this system; the issue is that appeals take time and Kinder Morgan – cheered on by the federal and Alberta governments – is rushing to finish construction before these judgments are handed down. Those who oppose this pipeline cannot afford to wait on the sidelines.
For my part, I have exhausted every legal tactic of opposition available to me – I intervened in the NEB hearings, spoke about the project 31 times in the House, submitted briefs, published op-eds, met with Ministers, joined marches and gave interviews. But unlike before, this form of opposition has not had any discernable impact on the government. With Kinder Morgan, we have strayed far from the normal course of things. It is not normal for an energy regulator to be in charge of environmental assessments. It is not normal for review panels to dismiss evidence from preeminent scientific authorities or major industry unions as being unfair to the proponent. It is not normal to bar official intervenors from entering the room until 21 months after they were appointed. All this and more happened during the Kinder Morgan hearings, marking a flagrant departure from standard procedure. My violating a court injunction was a last resort, but one I felt was necessary in unprecedented circumstances.
There are times when our legal responsibilities conflict with our moral duties. The law is not some immutable thing but the product of collective human endeavor and, as such, subject to our misjudgment from time to time. Bill C-38 and the resulting failure to assess Kinder Morgan’s project with any rigour is one glaring example. In such cases, it is an important to remember that our governments, charged with making our laws, rely on consent and not blind obedience. I cannot in good conscience consent to the Trans Mountain pipeline. Demonstrating my lack of consent is a moral duty until the day the Federal Court of Appeal rules that this project is in contravention of our Constitution, the benchmark of our values as a society. I believe that this will happen, but this belief alone will not stop Kinder Morgan’s ongoing pipeline construction in the meantime.
Thank you again for writing. I hope I have provided you with a better understanding of my act of civil disobedience. If you wish to access more detailed criticism of the pipeline, I encourage you to watch my testimony at the final NEB hearing and to read my most recent article.
Elizabeth May, O.C.
Member of Parliament
Leader of the Green Party of Canada