Kinder Morgan Trans Mountain review delay reveals a larger problem in Canadian democracy

The legacy of Stephen Harper may be Canada’s clearest historical example of corporate regulatory capture at the highest levels.

Just this past Friday the National Energy Board (NEB) halted the review process for the proposed Kinder Morgan Trans Mountain Pipeline twinning. It wasn’t because scientists and concerned residents had been arrested on Burnaby Mountain in protest; it wasn’t because of collective statements from the Mayors of several Lower Mainland cities and First Nations condemning the project; it wasn’t even because scores of intervenors wrote public letters about the horribly flawed process that many of us subsequently walked away from altogether. No, it came about because of the revelation that Harper’s newly appointed NEB member Steven Kelly was a Kinder Morgan consultant who helped draft evidence being used in the review process that he has now been appointed to help oversee. Where no amount of public outcry could slow down the NEB and Kinder Morgan, perhaps the hubris of Steven Harper will be the NEB’s undoing.

For years now we’ve seen that it’s not just environmentalists, local mayors and First Nations who are seriously concerned about this project, even business leaders like Ryan Holmes, CEO of Hootsuite, have taken up the mantle. In 2013 I appeared on a panel hosted by CRED BC (Conversations for Responsible Economic Development) where I initially made the argument that for Vancouver and BC this pipeline is all risk and no reward. Shortly after that I requested to my board of directors at the Hastings Crossing Business Improvement Association that in the interest of the several hundred businesses and property owners we work on behalf of, we become intervenors, which we did. I went on to become an adviser to CRED BC and have appeared as such on radio and in print making the case that this pipeline puts our local economy at risk while its benefits have been vastly exaggerated. But no amount of logic, no amount of science, no amount of concern from citizens can be expected to stop a regulatory body that doesn’t share the same values or views as the citizens it is tasked to work on behalf of. The NEB review process is Canada’s democratic deficit crystallized.

Kelly isn’t the first or only oil industry consultant or executive to be appointed to the NEB. Roland George, for example, has had a distinguished career advising on how to get oil and gas out of the ground and into the air. Philip Davies has also had an impressive career as a lawyer specializing in helping corporations create the types of energy infrastructure that will increase our parts per million of carbon in the atmosphere. Shane Parrish likewise has a CV that seems to be packed full of work for oil and gas companies, while Dr. Ron Wallace has held “senior management positions” with Petro-Canada and CanStar Oil Sands Ltd.

The NEB doesn’t appear to include a single Canadian under 40 or a single Indigenous person. Actually it doesn’t seem to include anyone who isn’t white and it tends to favor those with law or business degrees and decades spent in corporate boardrooms and corner offices. In short it is not broadly representative of the populations that will be affected by its decisions, should the many pipelines it is reviewing be approved. It is a reflection of the same crisis of representation that we have endured in Ottawa for the past decade, but longer really.

Just as many of us have come to see the NEB as illegitimate and undemocratic, many of us have also come to see Canadian democracy itself as fundamentally flawed and in need of reworking. Increasing attention has been paid to this as the public sees (and feels) governments here in BC and in Ottawa placing the needs of heavy industries above those of communities, our environment, and our younger and future generations. BC, and Canada, have become mired in a regulatory capture race to the bottom, figuratively and literally, as extractive industries have come to dominate public policy making. From LNG to Dilbit.

Regulatory capture is a term coined 50 years ago by George Stigler, an economist from just down the road in Seattle who became an important thinker in the Chicago School of Economics along with Milton Friedman. The idea is simple, and has been seen in practice many times. A particular industry is concerned about regulations impeding profitability so it seeks to “capture” the regulatory bodies overseeing it to exert influence in decision-making. This may include bribery, a PR push or heavy lobbying and political donations that result in stacking a regulatory board with executives friendly to that industry or folks who come directly from it.

I don’t doubt that the members of the National Energy Board feel that they are doing what is right for Canada and acting in our interest when considering the merits and risks of Kinder Morgan’s proposed twinning. This isn’t a question of their character or motives. I trust they wouldn’t want to be associated with a flawed and controversial process deemed illegitimate by the public at large, but they can’t help but create that by the very nature of the Board’s makeup itself. This however is something Stephen Harper is ultimately responsible for, as he has directly appointed over 25 NEB members during his tenure. For a decade Harper has been Canada’s Regulatory Capturer in Chief, recalibrating our country into a petro-state where Alberta’s Tar Sands are the centre of our economic and political universe.

The recent stall of the NEB hearings offers us a chance to question not only the legitimacy of the current process but of the NEB itself, including its makeup and how this is decided. This leads to a broader questioning of our democracy under a Conservative government captivated by extraction and a first past the post system that it has clearly learned how to game. We need to strengthen representative democracy and bridge the democratic deficit that has resulted in things like the NEB’s illegitimate and flawed processes under Harper’s watch.

The solution?

You can elect Green Members of Parliament to work with the NDP and/or Liberals to prevent Harper from forming government again. Our number one priority is getting us past the Harper Era and repairing the damage done to our democracy while preventing further damage to communities and the environment.

You can elect Green MPs to strengthen Canadian democracy by adopting proportional representation, so that parliament and our government can reflect the diversity of the electorate and not the interests of a single industry.

You can elect Green Members of Parliament to put the long-term interests of communities, families, students, and small business back at the centre of public policy making, not multinational corporations.

The legacy of Stephen Harper may be that of Canada’s most obvious historical example of regulatory capture at the highest levels, but it may also be the swinging back of political pendulum to address the democratic deficit that has grown under his leadership.

This election, let the healing begin.