Kinder Morgan can’t say it didn’t know what it was getting into.
It was warned early on about Peters First Nation in British Columbia.
Peters was a divided nation, it was told, with a bitter membership battle that had fractured the community for the last 30 years.
Problems and all, the small reserve with 12 homes was vital to Kinder Morgan.
That’s because Peters stood in the way of Kinder Morgan’s pipeline route to Burnaby with its Trans Mountain pipeline.
Kinder Morgan needed to make a deal.
It first approached Peters band council before it filed an application to expand the Trans Mountain pipeline with the National Energy Board in December 2013.
What would follow is hundreds of calls, emails and meetings with chief and council over a two-year period – until Kinder Morgan finally had their deal by the end of December 2015.
Kinder Morgan had a lot of money.
The kind of money Peters had never seen.
APTN National News has learned the deal could be worth up to $20 million over 20 years according to two people who have seen the confidential agreement.
Upon agreeing to the deal, Kinder Morgan gave Peters a lump sum payment of more than $2.5 million and was supposed to give it another $2 million-plus payment when Prime Minister Justin Trudeau approved the pipeline expansion on Nov. 29.
Other monies are worked in through potential business and training opportunities for Peters’ members that Kinder Morgan will also pay for.
It’s the money that is central to a civil claim against the chief and council with “Kinder Morgan” scattered throughout the court filing.
It’s alleged the chief, and her two councillors, breached their fiduciary duty to the band and are being asked to provide documentation about possible “unauthorized” payments made to them with the Kinder Morgan money.
Council has denied breaching fiduciary duty in its statement of defence and are refusing to provide documentation about alleged payments.
The suit was filed last December by two members of the band, who just a few years ago, would have been the last people to take their family to court – the chief Norma Webb, the longest-serving councillor Victoria Peters and former councillor Leanne Peters.
But how they got to this point goes directly back to the membership issue and when they were asked to vet 66 applicants beginning in 2013 just before Kinder Morgan came knocking on doors and handing out business cards.
“All but maybe one of the 66 should be members
– Andrew Genaille, Peters band member
To understand Andrew and Lisa Genaille’s relationship with the band, it’s important to know who their grandfather was.
The late Frank Peters was the chief in 1987 when the band gained control over their membership through Section 10 of the Indian Act – a clause that allows bands to self-govern membership as long as they follow a code approved by the minister of Indigenous Affairs.
The problem is as soon as Frank Peters got control, he started removing people off the band membership list until, what many people from Peters firmly believe, he could stay in power.
With a limited band membership, his side of the family could control elections and how revenue was spent because they had more votes.
His niece, the daughter of his brother, the late Clifford Peters, became chief next and kept it the same way.
Membership control has stayed on their side of the family since. Frank and Clifford had another brother, Robert Peters Sr., and his family has been left on the outside looking in ever since.
Robert Peters’ descedents, known as the “other side”, were “bad people” who were always making trouble for the family. At least that is what Andrew and Lisa were told growing up.
So when Samantha Peters, a member from other side, filed 66 applications for membership in 2013, the current chief and council hired Andrew and Lisa to vet the applicants.
The job came with a disclaimer, according to Lisa.
“I’d always be told ‘well, they are after your mom’s land, if they get in here they are going to go after your mom’s land,” said Lisa, whose mother is Fran Genaille, the daughter of Frank Peters and up until recently the band’s long-time assistant administrator.
“It scares you and then (Victoria Peters) starts slipping in ‘try to find reasons why we can turn them down ’cause they shouldn’t be members … they’re going to go after you land.'”
APTN requested multiple interviews with band council, including Victoria Peters who said she would respond to the allegations but never did.
Andrew said they still believed at the time the other side were troublemakers.
“I was still at the point where these are people you trust, they’re family members and you can trust them,” he said of the band council.
Both are university-educated and Lisa has plans to go to medical school.
After researching the band, they would soon find the applicants did deserve to be members.
“I went through all the genealogicals, the family trees, the Census, B.C. archives and just went through all of it. I found out they were all family. There was no reason to turn these individuals down per our membership code,” said Lisa.
Then they started asking their aunt Victoria Peters questions.
The membership code states if you are the natural child of a member you can be a member.
Andrew and Lisa said they found evidence of their grandfather removing people from band lists, or women who lost their status when they married a non-status man. They believed all of them should be members again, and their descedents – after all, that’s what Bill C-31 was supposed to do in 1985. But that bill also created Section 10.
“All, but maybe one, of the 66 should be members,” said Andrew.
None of the 66 applicants would become members and are still not to this day.
“It just got to the point that the more we questioned the less they wanted to tell us,” said Andrew.
Soon they were cut off from the band’s archives and it made for awkward family dinners.
But the table had been set for the Genaille’s – they just needed to sit down.
Then Kinder Morgan came around and both siblings, who are against pipelines, dug in their heels.
So much so, they’d change sides joining Samantha Peters, and, for the first time, not only started voting against their family in elections but ran against them as councillors in the last election.
“… I want to make sure we get paid
– Coun. Victoria Peters
When the first Trans Mountain pipeline was put through Peters First Nation in 1952, it came at a time when it was illegal for status Indians to vote or hire a lawyer.
They didn’t have a say in what happened then.
This time around Kinder Morgan had a team of people working to get First Nations to sign what they called mutual benefit agreements.
If they signed a deal, each community were asked to send a letter to the National Energy Board stating they supported the project and that they were properly consulted.
Norman Marcy was on that team that targeted First Nations – about 130 territories, but the vital ones had to be the nations where the pipeline actually went through the communities.
Peters was one of them.
Marcy first showed up on Peters on Nov. 27, 2013, which was a few weeks before Kinder Morgan filed its application with the NEB seeking approval to add a second pipeline.
Peters was sent a draft mutual benefits agreement in February 2014 and were told Kinder Morgan wanted to a have a deal signed by the end of July, according to documents filed by Kinder Morgan to the NEB that outline almost every contact it had with the First Nation.
Then he got an email from Samantha Peters near the end of April.
In that email obtained by APTN, she told him about the membership issues and how there were over a 100 people with status to Peters who couldn’t vote in elections because they weren’t members.
She asked that Kinder Morgan also consult them.
That didn’t happen.
“How can you just completely disregard them?” said Samantha Peters. “They have every right to participate in the discussions because these projects are going to impact them.”
They’d be left out like they had been for decades.
Carol Raymond, 73, included.
Her father was once a member and is buried in Peters’ cemetery, as are her grandparents. The proposed pipeline would be just a few hundred metres from her dad’s final resting place.
“The idea of the ground being disturbed near my family’s graves…,” said Raymond. “It is a sacred place.”
People like Raymond were ignored.
The Peters’ chief and council weren’t so quick to accept what Kinder Morgan was offering.
They needed to understand the project and Kinder Morgan offered what’s known as capacity funding, as the application before the National Energy Board was itself 15,000 pages. Basically, Kinder Morgan would provide money to pay for environmental reports and consultants so council could properly understand the full scale of the massive project.
While negotiating the capacity funding, Kinder Morgan was also trying to discuss the mutual benefits agreement, according to the documents. Just a couple days before they signed a letter of understanding (LOU) in July 2014, that would see Peters get just over $600,000 in capacity funding, the president of Kinder Morgan was getting worried about the progress of the MBA.
Coun. Victoria Peters got an email from Ian Anderson, president and CEO of Kinder Morgan Canada, that was paraphrased in Kinder Morgan documents, stating he was “concerned about concluding the Mutual Benefits Agreement discussions as (Kinder Morgan) needed to define the routing and that The Kinder Morgan president wanted to do the work in parallel so that Peters First Nation would get benefit definition as soon as possible.”
Victoria Peters would respond stating they needed to have a “thorough understanding” of the project before Peters was in a position to “provide free, prior and informed consent”.
One of the things holding up signing the LOU was the payment schedule according to documents, as Peters wanted a bulk of the funding “early”.
Kinder Morgan agreed to pay a large portion upfront and in a matter of days the LOU was signed.
Both parties met in person to discuss how to move forward, including when MBA discussions were to start.
Talks would continue into the following year, and Kinder Morgan noted they kept asking about the MBA according to their own documents.
Victoria Peters is quoted in court documents allegedly saying in February 2015 in front of two people, “They’re going to build the pipeline whether we like it or not, and I want to make sure we get paid.”
In December 2015, the band members, who were allowed to vote, did so on whether to accept the deal.
It was not a surprise to Andrew or Lisa Genaille, or Samantha Peters, that a majority voted for it. For the past 30 years the band council has had enough votes to do anything – even with Andrew and Lisa changing sides.
It’s believed of the 42 eligible voters, 17 voted against the deal.
In January, the band decided to distribute $30,000 of the Kinder Morgan money to each member. When they were handing out the cheques at the band office, the council hired security to man the doors.
Andrew used his money to buy solar panels. Lisa bought an electric car and Samantha Peters used her money to fund a judicial review in Federal Court of three family denied membership last year as reported by APTN last week.
“I’m not going to be able to stop them. They got too much power
– Robert Peters Jr., Peters band member
With the deal signed and Peters on-side, Kinder Morgan soon realized they had a second deal to make – with Robert Peters Jr.
After all, the pipeline was going through his backyard.
Robert Peters said Kinder Morgan knew he had deeds to the land around the pipeline.
“They knew I had papers on this land here, too. That’s what I couldn’t understand, why they just wanted to go over me without talking to me about it,” he said.
He first wrote Kinder Morgan president Ian Anderson in August 2016 saying the band council excluded elders in negotiations, as he is one of them, and reminded Anderson about the people fighting for membership who also weren’t consulted on the deal.
The letter sparked several meetings with Kinder Morgan.
“First I asked them to pay to move my house but they said they weren’t in the housing business,” he said.
Eventually, they made a deal, which he is keeping the details of to himself.
“We made a decision and we went with that and that was it. I’m not really happy with it but, like I say, I’m not going to be able to stop them. They got too much power,” he said.
Meanwhile, many on Peters are wondering what could happen to the Kinder Morgan deal if the Federal Court rules in favour of the three applicants on membership and the results of the civil suit.
It’s unknown what impact both could have, but one certainty is Kinder Morgan has their deal and plans to start construction on the pipeline this September.
Update: A day after this story published Victoria Peters responded by email saying it was “absolutely” untrue she told the Genaille’s to find ways to rule against the applications or that she warned them that applicants would be after their mother’s land.
“On the contrary, Lisa and Andrew were the ones who were adamant that no new members should be admitted and were of the opinion that their research would support that. I had an open mind and was prepared to rely on the research being conducted and advice from the lawyers for the Peters First Nation,” said Victoria Peters.
APTN asked Andrew and Lisa to respond.
“If she said it then she was biased, if we said it she knew we were biased and hiring us would only get a no result. Neither scenario absolves her of a prejudiced answer and it still looks like she wants one outcome,” said Andrew.
“She’s trying to deflect the blame but the end result is the applicants still can’t trust they were treated fairly.”