The company behind the controversial Trans Mountain Expansion pipeline is warning that the project needs to be exempted from rules governing environmental permits or it might not get built.

In September, the company took an aggressive “it’s better to beg forgiveness than ask permission” approach when it pre-emptively installed snow fences in streams along the pipeline route to prevent fish from spawning there. The National Energy Board (NEB) had to order them to stop because they didn’t have the necessary approvals to do this, so Kinder Morgan immediately asked to be exempted from the regular permitting requirements on the grounds that having to follow due process would result in expensive delays. 

Video prepared by the Dogwood Institute

The company put a price tag on the delays in October, when it went back to the NEB to request an exemption from a series of municipal bylaws due to the “steadfast opposition” to the project by the City of Burnaby (Kinder Morgan needs to expand its oil terminal in Burnaby in order to accommodate oil from the proposed new pipeline).

In the affidavit submitted to the NEB to support this extraordinary request, Kinder Morgan Canada’s Vice President Michael Davies warned that each month of delay increases costs by $30-35 million and results in a loss of $90 million in revenue. He added that “a delay of an indeterminate nature will create uncertainty regarding the Project’s future and the In-Service Date of the Project, potentially resulting in the failure of the Project.”

What is remarkable about this request is that it was made only 10 days after Kinder Morgan submitted its request for municipal permits. The Government of Alberta, eager to be shown doing all it can to get a pipeline built, is siding with the company before the NEB.

Yet the challenges keep coming.

On Saturday, kayaktivists took to the water and shut down some of the construction work at the Kinder Morgan’s Burnaby terminal.

On October 28th, hundreds of people in Metro Vancouver, Canada, took action on the land and water for the #StopKMFlotilla.

The ‘Tiny House Warriors’, an Indigenous-led group who are building housing along the path of the pipeline, have begun removing Kinder Morgan’s anti-spawning mats from streams in the traditional territory of the Secwepemc Nation in the interior of British Columbia.

And there are still multiple legal challenges to the pipeline’s approval from First Nations, municipalities and environmental groups before the Federal Court of Appeal, any one of which could overturn the federal permit.

At the core of the many of those cases is the issue of consent.

Under the Canadian constitution, governments have a duty to consult with and accommodate Aboriginal peoples when contemplating actions or decisions that may affect their Aboriginal or Treaty rights. This duty cannot be set aside when inconvenient, as the federal government found when the courts overturned the Harper government’s approval of the Northern Gateway pipeline.

The Trudeau government has gone a step further and formally (if not yet in practice) endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which includes the right to free, prior and informed consent for industrial development in traditional Indigenous territories.

The Kinder Morgan pipeline clearly does not have the consent of many Indigenous communities and First Nations along its route, who number among the more than 120 First Nations or tribes across Canada and the U.S. that have signed the Treaty Alliance Against Tar Sands Expansion.

Kinder Morgan may be putting on a show in order to impress their investors with how hard they are working to get construction underway this fall (like they promised they would). But the federal government and NEB don’t have to reward their willingness to break the rules.

Bypassing due process on permits to fast-track construction while the federal approval of this pipeline is still before the courts would do just that, while making a mockery of the federal commitment to the UN declaration and the principle of free, prior and informed consent.