Amongst all the hooting and hollering over the Kinder Morgan Trans Mountain pipeline, it’s easy to lose track of how on earth we ended up in this place of dysfunction.
But Canadians didn’t become deeply divided about oil pipelines overnight. Indeed, much of the current tension can be traced back to the federal review of Trans Mountain, which the National Energy Board (NEB) began in early 2014.
“The reality is that there are huge gaping flaws in the Canadian environmental review process that have been known about for decades and have never been fixed,” David Boyd, an environmental lawyer and associate professor at UBC, told DeSmog Canada.
“The process that was carried out to review the Kinder Morgan pipeline was full of holes.”
Those holes, according to Boyd, include a “complete failure” to consider the cumulative effects of projects, Canada’s international climate change commitments and the constitutional rights of Indigenous people.
“Even countries like the United States have a stronger approach to environmental assessment than Canada,” Boyd said. “It’s just completely greenwash to say that Canada has a rigorous review process.”
Despite promising to reform the review process while running for office, when Prime Minister Justin Trudeau approved Trans Mountain, he said: “This is a decision based on rigorous debate on science and evidence.”
One of the major critiques of the NEB process that approved Trans Mountain was that the panel refused to consider the most recent peer-reviewed science on spills of diluted bitumen.
“How can you ignore the leading scientific evidence and then say you’ve conducted a rigorous review? It’s just a preposterous affront to reason,” Boyd said.
“I think it’s fair to say that there’s a big transparency problem in Canadian environmental law,” Jocelyn Stacey, assistant professor at UBC’s Peter A. Allard School of Law, told DeSmog Canada.
“What we’re seeing with this project is that it taps into two really deep, deep challenges that Canada faces at the moment.”
Those questions are: how do we move to a low-carbon future in light of the fact we have tremendous oil and gas resources in this country? And: how do we reconcile with Indigenous peoples?
“Those problems are well recognized across the country,” Stacey said. “But when it comes to making really tough, potentially divisive decisions that will realize those promises, we’re not at a place where really big steps are being made.”
The big question is how to reconcile those two big questions with the “national interest.”
“Addressing aboriginal peoples’ concerns is in the national interest,” said Hans Matthews, who was a panellist for the National Energy Board’s review of the Enbridge Northern Gateway pipeline.
“The ‘national interest’ places a greater priority on the economics of a project, whereas I think a lot of communities and impacted people are more concerned with the environmental components of the project,” he said.
“Should the people who are most impacted at the local level carry the load for…the national interest?”
Matthews is the president of the Canadian Aboriginal Mineral Association, which is advocating for an Indigenous-driven environmental assessment process.
“It would have a significant amount of involvement of the community from the get-go and it would entail a greater input and analysis and interpretation of community knowledge,” Matthews said.
Indigenous-led assessment would reduce the burden on the courts and also be in keeping with the government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples, Matthews said.
“[The government] can’t in one breath say ‘okay, we’re going to approve this resource project’ but in the other breath say ‘we’re going to adopt UNDRIP.’ ”
Matthews’ comments are in line with those made by the Assembly of First Nations’ B.C. Regional Chief Terry Teegee, who spoke last week before a House of Commons committee reviewing Bill C-69 — a bill tabled by the Liberals to improve Canada’s environmental assessment process.
“This bill falls short in terms of recognition of the core principles of the United Nations Declaration on the Rights of Indigenous Peoples,” Teegee said, noting that it fails to recognize Indigenous jurisdiction.
“We’re seeing that play out right now as it relates to Kinder Morgan, how First Nations who have made their decisions aren’t being recognized with regards to the final decisions of those major projects,” he said.
Stacey said a big part of what’s missing in the way Canada makes decisions on contentious projects is an evidence-based justification for those decisions.
In the case of the Trans Mountain pipeline, there was a federal order-in-council that constituted the reasons for the decision.
“But if you were to look at the order-in-council, you would find that there isn’t really an explanation of the decision itself,” Stacey said.
For instance, the order-in-council states that the project is not likely to have significant adverse effects.
“It’s not clear how they would reach that conclusion in light of the fact that the National Energy Board’s assessment found that there would be significant adverse effects on the endangered resident orca population,” Stacey said.
The decision also fails to reconcile further pipeline development with international climate obligations and doesn’t even reference protection of B.C.’s coast.
“That was a big part of the reason why B.C. wanted to intervene in the judicial review before the federal Court of Appeal — to make that point that the decision reasons mentions Alberta’s economy, but does not mention protection of B.C.’s coastline,” Stacey said.
Federal Green Party leader Elizabeth May says the Liberals made a huge mistake in not fulfilling their campaign promise to re-do the Trans Mountain pipeline review if elected.
“I think they don’t understand how bad the National Energy Board study was,” May said. “They seem to have forgotten.”
Instead of starting the process over, Trudeau appointed a “ministerial panel” to fill in the gaps that’d been missed by the National Energy Board process.
The 58-page report submitted in November 2016 to Minister of Natural Resources Jim Carr, concluded by posing six incisive questions to cabinet, including: “can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?” and “how might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of ‘free, prior, and informed consent’?”
“That review panel asked some thoughtful questions that they thought should be answered before the project was approved,” Boyd said. “And of course those questions were never answered.”
In a prescient moment, the panel also acknowledged the controversy likely to be created by the pipeline: “The issues raised by the Trans Mountain pipeline proposal are among the most controversial in the country, perhaps in the world, today: the rights of Indigenous peoples, the future of fossil fuel development in the face of climate change, and the health of a marine environment already burdened by a century of cumulative effects.”
The panel did not, however, make any recommendations on what to do about all those thorny issues. That got punted back to the federal government, which — rather than acknowledging the inevitable controversy of a decision of this magnitude — has chosen to ignore all that complexity in favour a single talking point: “This pipeline will be built.”
On top of that, the federal government has now entered financial negotiations with Kinder Morgan.
“I don’t think we would have seen this coming out of Harper,” May said. “This is a manipulated crisis. We’re being played for country bumpkin fools by Texas.”
So how do we avoid this situation in the future?
“What we really need to be looking at — and what the opposition in B.C. I think is really grounded in — are these more pressing and difficult issues of Indigenous jurisdiction and reconciliation and how Canada as a resource based economy can move to a low-carbon future,” Stacey said.
The federal government promised to reform how we assess projects like these in the future and to that end has tabled bill C-69, currently before the House of Commons. But it fails on several fronts, according to experts.
“The government of Canada spent over $1 million on a high-powered panel of environmental law experts … they held public hearings in 21 cities across Canada … they had over 1,000 submissions. They reported on what needed to be done. And Bill C-69 bears no resemblance to those recommendations,” May said.
“It doesn’t create an environmental assessment process that is credible.”
The timelines in the new bill for conducting an environmental assessment for major projects are even tighter than the timeline Kinder Morgan was subject to.
“I think that that should be a major concern,” Stacey said. “We can see very clearly from the response in B.C. that when you have controversial projects, it doesn’t do anybody any good to rush these through an assessment process.”
The bill also leaves room for oilsands projects to be exempted from federal review.
But Stacey’s biggest concern is that the bill is still focused on project-based assessment, rather than taking a larger view and looking at cumulative impacts.
“What you see bubbling up is that the really fundamental concerns about the pipeline are much bigger than the pipeline itself,” Stacey said. “By crafting a regulatory and assessment process around projects, it’s ill-suited to dealing with these bigger issues that people really want to see addressed in a meaningful way.”
What’s needed are mandatory “strategic assessments,” Stacey said.
These would look at the impacts of certain government policies, which often have much more profound environmental effects than any individual project. For instance, the federal government has committed to doing a strategic assessment of the climate impacts of existing federal government policies.
May holds out hope that Bill C-69 can be fixed in committee.
“Something went wrong somewhere,” May said. “I think we can fix it. This is so unacceptably bad.”
Image: Justin Trudeau attends the Skandinaviska Enskilda Banken (SEB) Annual Corporate Client Conference in Ottawa. Photo via PMO Photo Gallery
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