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Kinder Morgan cool to Ottawa's offer on the Trans Mountain pipeline

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OTTAWA—The Texas-based oil firm threatening to kill its planned expansion of an Alberta-B.C. pipeline reacted coolly to Ottawa’s offer Wednesday to compensate the company for any financial losses due to political opposition of the B.C. government.

But Steve Kean, chairman and CEO of Kinder Morgan, owner of the controversial project, did not rule out the possibility of reaching an agreement by the company’s May 31 deadline.

Finance Minister Bill Morneau has been consulting with Kinder Morgan about providing taxpayer-backed financial assurances to guarantee the pipeline goes ahead.  (Sean Kilpatrick / THE CANADIAN PRESS file photo)

“While discussions are ongoing, we are not yet in alignment and will not negotiate in public,” Kean said. He said the company is still determined to secure “clarity” for its construction plans along with “adequate protection” for its shareholders.

For his part, federal Finance Minister Bill Morneau said he too wasn’t negotiating in public. But after spending an hour on the phone with Kean the night before, Morneau called a news conference just hours before Kinder Morgan Canada’s annual general meeting of sharegholders, and laid out Ottawa’s promise to provide Kinder Morgan indemnity or insurance against financial losses he said may be caused by court challenges launched by B.C. Premier John Horgan’s government.

“We are willing to indemnify the Trans Mountain expansion against unnecessary delays that are politically motivated,” Morneau said.

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He would not reveal how much Ottawa is prepared to fork out, saying he didn’t want to go into “details of discussions.” The Liberal government says it won’t cover delays due to Indigenous or environmentalists’ court challenges, with Morneau saying those lawsuits are based on arguments made “in good faith.”

But Morneau raised the stakes for Kinder Morgan, saying if it bails on the project, federal financial assurances would be available to any company that steps in to take over what Morneau insisted is a “commercially viable” pipeline expansion. Nor did he rule out the possibility that Ottawa could take a financial stake in the project to ensure it becomes a reality. “We haven’t come to any conclusions yet,” he said.

“We think plenty of investors would be interested in taking on this project,” Morneau said.

Officials told the Star the federal government doesn’t have any hard offers but has clear indications of other investors’ interest in taking over the project even without the offer of indemnification. With it, said one official, “all of a sudden that’s an attractive packaging around that.”

However observers like Dennis McConaghy, a former executive with TransCanada Pipelines and now a visiting fellow at the public policy and energy studies schools at the Ivey Business School at the University of Western Ontario, said if the goal is get construction underway to complete the twinning of the Edmonton-Burnaby pipeline by 2020 as scheduled, it makes no sense for another investor or the federal or Alberta governments to take over. “The urgency here is to get home with Kinder,” said McConaghy.

“Of course they’re still doing the dance,” McConaghy said, adding he was encouraged by the language each side used Wednesday.

McConaghy said Morneau’s offer of a “completion risk” guarantee to cover costs that were unforeseen by the company was “reasonable, but I don’t think it is reasonable for the federal government to indemnify Kinder for what they’ve already spent or…for the profits that they are going to lose if they don’t do this project.”

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Morneau’s statements reverberated across the country, ratcheting up regional tensions exposed by the energy fight.

Alberta Premier Rachel Notley put the squeeze on B.C.’s Premier John Horgan, a fellow NDPer, saying her government was “ready and prepared to turn off the taps” on energy shipments to B.C.

The Alberta legislature was expected to pass Bill 12 on Wednesday, giving it new powers to curb transfers of energy resources to its western neighbour. Notley said only her government was ready to move on short notice “as needed.”

It all re-ignited Indigenous and environmentalists’ vows to oppose the project in court and on the ground in B.C., with one key litigant, the Tsleil-Waututh Nation, pointing out that any investor will face stiff opposition in the federal courts to expanding the pipeline.

Morneau insisted the government would act in a “fiscally responsible” way to ensure completion of a project it deems to be in the national interest, and he vented anger at what he called Horgan’s “deliberate attempts to frustrate the project.”

“Premier Horgan’s stated intentions are to do whatever it takes to stop the project which is unconstitutional,” Morneau said.

Horgan fired back, saying the “Toronto-based” finance minister was engaging in “rhetoric and hyperbole.”

“I’m doing what I said I would do. I’m defending the interest of British Columbia,” he told CBC News.

Read more:

Kinder Morgan faces $450M ‘wake-up call’ at shareholder meetings

Local environmentalists fighting pipelines and perceptions in the heart of oil country

Most Canadians agree Kinder Morgan brought pipeline conflict onto itself: Angus Reid poll

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Kinder Morgan could win all the battles and still lose the war

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Of the 16 judicial challenges that the Trans Mountain pipeline project has survived so far, none is as important as one handed down this week by the B.C. Supreme Court.

The court actually ruled in two separate lawsuits, one filed by the City of Vancouver and the other by the Squamish Nation. But, make no mistake − it is the second that is so consequential and portends well for the company in terms of the legal matters still outstanding.

To understand why the Squamish case is so important, one has to go back to a Federal Court of Appeal decision in 2016 regarding Enbridge’s proposed $7.9-million Northern Gateway pipeline. Approved by the National Energy Board and the federal cabinet, the court found that Ottawa failed to properly consult First Nations communities along the planned route. That ruling effectively killed the venture there and then.

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Kinder Morgan was always aware of the concerns expressed by aboriginal groups in northern B.C. that there had been insufficient consultation around the Gateway project. Both Enbridge, and the federal government at the time, had been publicly criticized for the poor job they had done in trying to get First Nations groups educated about both the overall project and the measures being undertaken to mitigate potential risks. Kinder Morgan was determined not to make that mistake, determined that inadequate conferral would not be something that killed its project. It pushed the federal government on this front, too.

That First Nations groups would one day launch court actions to try and stop it was a given. And the Squamish, among other aboriginal groups, complied.

Of all the lawsuits levelled against the project, Kinder Morgan was still most nervous about the ones involving First Nations. Courts at all levels had, in recent years, sided heavily in favour of Indigenous groups, when it came to areas such as land rights and consultation.

There’s always been a feeling that if anything was going to threaten Trans Mountain, it would be a legal ruling that sided with a First Nations group opposed to the project – which is why Justice Christopher Grauer’s decision this week is so consequential.

While going to great pains to make it clear what his two rulings were not about – whether the project should go ahead, whether it is in the national interest or whether it presented unacceptable risks to the environment – he said in the case of the Squamish that he was satisfied that the consultation that took place as part of the NEB’s assessment process was adequate.

“I find that … consultation and accommodation sufficient to satisfy section 35 of the Constitution Act, 1982, had occurred, was reasonable and entitled to deference,” Justice Grauer ruled in dismissing the Squamish’s petition.

Of course, this is not the end of it. It never is with this project. There is still the reference question that the B.C. government is sending to the courts on jurisdiction. And the Federal Court of Appeal is soon expected to render a decision in a massive case, involving, among others, several First Nations groups along the coast and the B.C. Interior. It also centres around the question of consultation, and whether there was enough of it prior to the NEB and the federal cabinet approval of the pipeline expansion.

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It doesn’t necessarily follow that because the B.C. Supreme Court has ruled that consultation was sufficient, the federal appeal court will, too. But most legal observers believe that Justice Grauer’s decision certainly bodes well for Kinder Morgan, which must be anxiously awaiting the federal court’s verdict. Whether the company still has the stomach to go ahead with this endeavour is another matter.

If the company sells the project to Ottawa and walks away, which it could, it would be a seminal moment in the history of resource development in this country. Despite what federal Finance Minister Bill Morneau might say, there does not appear to be a lot of suitors waiting in the wings to take over this project should Kinder Morgan decide to wash its hands of it. (And increasingly, that is a view that many are subscribing to).

In the end, the project could end up surviving every court challenge thrown its way and still not proceed. Why? Because people may not have the appetite for the on-the-ground fight that still lies ahead. First Nations groups may lose their legal challenges, but win in the court of public opinion, especially after images of protesting aboriginal elders being carted away by Mounties or the army start being broadcast around the world.

Kinder Morgan could win all the battles and still lose the war.

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Police lay charges in alleged Calgary-based, $20-million Ponzi scheme

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Two Calgarians have been charged with fraud in connection with an alleged Ponzi scheme that netted more than $20 million from investors.

Following a decision by the Alberta Securities Commission (ASC), police claim Arnold Breitkreutz, 70, and Susan Way, 67, defrauded hundreds of Albertan investors by using their funds “contrary to what investors were told.”

Police say the pair took in over $27 million dollars in 2014 and 2015 and used the funds to pay off other investors instead of being used for mortgage lending.

“This has been an extremely complex investigation involving substantial resources, interviews and time,” Sgt. Doug Johnston with the RCMP Federal Serious and Organized Crime unit said in a release. “We are pleased to be able to conclude this investigation with charges and extend our gratitude to the various agencies who provided support to the RCMP.”

The ASC decision back in March found Breitkreutz and Way ran a Ponzi scheme through Breitkreutz’s company, Base Finance. The RCMP began looking into Breitkreutz, Way and Base Finance in 2015 after the ASC brought the Ponzi scheme to law enforcement.

The commission said Breitkreutz, Way used Base Finance to deceive investors into thinking they were putting their money into mortgages held by the company, rather than in a loan to an undisclosed entrepreneur involved in U.S. oil and gas developments, according to the regulator panel’s decision.

Between 2004 and 2015, the operators of Base Finance raised more than $137 million from upwards of 250 investors.

Breitkreutz and Way have both been charged with fraud over $5,000 and theft over $5,000.

“Conditions of their release include not to contact certain investors, to report to the RCMP regularly, to surrender their passports and remain in Canada, and not to deal with land or money or securities of others,” police said in a release.

The pair will appear in court on May 28 in Calgary.

RRumbolt@postmedia.com

On Twitter: @RCRumbolt

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Trump administration seeks WTO panel to resolve wine dispute with Canada

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The Trump administration said Friday it requested that the World Trade Organization set up a dispute settlement panel to rule on its claim of Canada‘s “discriminatory” trade practices involving U.S. wine.

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The dispute with Canada relates to policies at the provincial level that limit grocery store access to American wines. The marketplace for alcohol in several big Canadian provinces is controlled by government-run enterprises and liquor control boards, and in some cases they own and operate state-run retail networks.

Friday’s action specifically relates to the province of British Columbia, where liquor authorities in 2015 amended rules to allow regular grocery stores to start selling wine and liquor but in doing so separated U.S. and other imported wine from B.C.-only product. Even so, American wine industry executives say the U.S. industry continues to have market access issues in other Canadian provinces, including Ontario and Quebec.

Last year, the U.S. held consultations with Canada on the wine issue, but those talks failed to resolve the matter. The request for establishment of a WTO dispute panel is the next step in the settlement process.

The trade action was jointly announced by U.S. Trade Representative Robert E. Lighthizer and Agriculture Secretary Sonny Perdue, who requested that the WTO set up a dispute settlement panel to look at “unfair regulations” that govern the sale of wine in grocery stores in B.C.

According to the announcement, B.C.’s policy of excluding imported wine from grocery store shelves gives “substantial competitive advantage” to B.C. wine. “These regulations appear to breach Canada’s WTO commitments and have adversely affected U.S. wine producers.”

Canada is the largest single country market for U.S. wine, according to the Wine Institute, a trade organization representing more than 1,000 wineries and related businesses in California. California-produced wine is the No. 1 table wine category in B.C., and the retail value of U.S. wine sales to all of Canada last year was almost $1.1 billion.

“Wine Institute greatly appreciates the Trade Representative’s continued efforts to end these discriminatory practices and hold Canada accountable for their WTO obligations,” said Robert Koch, president and CEO of the Wine Institute. “Canadian consumers should have the same access to the vast array of the world’s great wines.”

Koch said his organization will continue to push “for equal treatment of imported and domestic wine by all Canadian provinces. Policies supporting B.C., Ontario and Quebec that provide favorable distribution and retail access, discounted excise taxes, and local bottling requirements for the benefit of domestic producers are contrary to Canada’s commitments to the WTO.”

The 2015 regulations adopted in B.C. allowed grocery stores in the province a so-called “wine on shelf” option to sell wine anywhere within the store but only BC-produced wine on grocery store shelves. Also, U.S. and other imported wine was only allowed to be sold in B.C. grocery stores where there was a separate so-called “store within a store” option.

“The B.C. policies would allow for imported wine to be in grocery stores within these completely separate [‘store within a store’] stores,” said Charles Jefferson, vice president of federal and international public policy for the Wine Institute. “But today I’m not aware of any grocery stores that have actually set up those kinds of arrangements.”

Yet, Jefferson said it’s “very hard to speculate” about the financial impact of the B.C. regulations on U.S. wine producers. “It’s really hard to see what the potential impacts are other than we know we’re being excluded from those consumers who are in the grocery store,” he said.

U.S. wine has an estimated 10 percent share of the B.C. marketplace.

“The practice of discriminating against U.S. wine is unfair and cannot be tolerated any longer,” Perdue said in a statement. “Our wine producers rely on export markets and they deserve fair treatment, especially by our northern neighbors in British Columbia.”

Lighthizer stated, “Discriminatory regulations implemented by British Columbia are unfairly keeping U.S. wine off of grocery store shelves, and that is unacceptable. Canada and all Canadian provinces, including B.C., must play by the rules. The Trump administration will continue to hold our trading partners accountable by vigorously enforcing U.S. rights under our trade agreements and by promoting fair and reciprocal trade through all available tools, including the WTO.”

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