10/29/2014 08:18 EDT | Updated 12/29/2014 05:59 EST

We'll Never Know How Much Kinder Morgan Spent In B.C. Municipal Race

While voters will someday know how much non-profits including Dogwood Initiative spent during the election, as it stands it will forever remain a mystery how much oil giants such as Kinder Morgan have pumped into advertising during this year's municipal campaign.

Kinder Morgan has launched an advertising campaign pushing the company's proposed Trans Mountain pipeline expansion that just so happens to coincide with B.C.'s municipal elections -- but Elections BC says the company doesn't need to register as a third-party advertiser.

That's a bit of a puzzler given that Elections BC rules clearly state that anyone who runs ads on an election issue must register as a third-party advertiser and disclose costs within 90 days of the Nov. 15 election.

Kinder Morgan's Trans Mountain expansion, which would triple the amount of oilsands bitumen flowing to the B.C. coast, is certainly an election issue, with Burnaby Mayor Derek Corrigan and Vancouver Mayor Gregor Robertson staking out positions against the project.

An online survey for Burnaby NOW found that the pipeline expansion is the number one concern for Burnaby voters during the civic election.

With that in mind, Burnaby-Douglas New Democrat MP Kennedy Stewart asked Elections BC to look into Kinder Morgan's advertising blitz. The Canadian Press reported that he received a response from Jodi Cook, Elections BC manager of provincial electoral finance, which stated that Kinder Morgan's advertising doesn't meet the definition of election advertising.

Let's look at the Elections BC definition of election advertising: "Election advertising is any transmission of a communication to the public during an election proceedings period that directly or indirectly promotes or opposes the election of a candidate or an elector organization. Election advertising includes a communication that takes a position on an issue with which a candidate or an elector organization is associated." (Emphasis added)

Given that definition, the Dogwood Initiative, a non-profit group that opposes Trans Mountain, felt it needed to register as a third-party advertiser even though the group isn't endorsing candidates.

"We talked to Elections BC over the summer and determined that even if we make no formal endorsements ... the very fact that we are surveying candidates and differentiating candidates on an issue makes this into election advertising," said Kai Nagata, Dogwood's energy and democracy director. "We're tracking the time and money that goes into communications even with our own supporters."

Elections BC communications manager Don Main told DeSmog Canada that "the [Kinder Morgan] advertising did not appear to implicate, positively or negatively, a candidate or elector organization. The advertising brought to our attention did not tie explicitly or implicitly to the election, and did not serve the primary purpose of supporting or opposing a particular elector organization or candidate."

Nagata notes that Kinder Morgan launched its advertising campaign -- which includes leaflets, bus shelter ads, television and online advertisements, robocalls, and telephone townhalls -- right after the nomination period for the municipal elections closed.

One of Kinder Morgan's television advertisements, which is running during B.C.'s municipal election campaigns.

According to the Elections BC third-party sponsor guide, indications that advertising may qualify as "third party advertising" include advertising specifically planned to coincide with the election proceedings period and a substantial increase in the normal volume of advertising.

"I don't think you get very far in being a public relations or advertising executive without being able to read a calendar," Nagata said.

"The impression that is created, especially in the municipalities where this has been an election issue ... is that of a targeted ad campaign aiming to sway voters on the merits of a particular project in the middle of a municipal election where candidates have staked their positions on this issue."

Kinder Morgan has said that the regulatory process is not currently under municipal jurisdiction and therefore can't be a municipal election issue.

"What that ignores of course is that such a project would have immediate and tangible impacts at a local level," Nagata said, noting that the Burnaby Fire Department is already having to plan for an oil fire.

After the Elections BC ruling, Stewart submitted additional evidence to Elections BC, alleging Kinder Morgan was focusing advertising efforts against Burnaby Mayor Derek Corrigan, who strongly opposes the pipeline.

Stewart stated in the letter to Nola Western, the deputy chief electoral officer, that Kinder Morgan held a telephone town hall meeting in Burnaby in which 5,000 residents participated.

In a recording of the meeting posted on the project website, Stewart said Kinder Morgan president Ian Anderson describes a plan to offset Mayor Corrigan's "very public media driven campaign against the pipeline."

"Corrigan is disparaged by Anderson, who states opponents are using 'fear and emotion' to sway residents, and that information about the projects is being mischaracterized by the mayor," he said in the letter.

Elections BC responded by saying the town hall meeting has since been removed from the website.

Nagata said Dogwood Initiative could have avoided registering as a third-party advertiser and waited for a complaint to Elections BC to force a ruling on the matter, but "it didn't even seem like it was an option not to register given the definition as we read it. This [Kinder Morgan] ruling surprised us."

So while voters will someday know how much non-profits including Dogwood Initiative spent during the election, as it stands it will forever remain a mystery how much oil giants such as Kinder Morgan have pumped into advertising during this year's municipal campaign.

- Emma Gilchrist, DeSmog Canada