Natural Resources Minister Jim Carr has reiterated the federal government’s pledge to overhaul the National Energy Board in order to restore public confidence in Canada’s pipeline review process. But the promised legislative changes will not come quickly.

"You don't rush your way into decisions that affect not only today, but generationally in Canada in the new world of sustainably moving resources to market," Carr said Monday while attending the federal cabinet’s retreat in New Brunswick.

Over the last month, the Union of B.C. Indian Chiefs and Burnaby Mayor Derek Corrigan requested Carr and Prime Minister Justin Trudeau suspend the review of Kinder Morgan’s Trans Mountain pipeline to avoid a decision being pushed through a process they claim is “deeply flawed.” Trans Mountain’s final hearings began as scheduled on January 19 in Burnaby, British Columbia.

"The minister is correct, we shouldn’t rush the creation of a new process,” Andrea Harden-Donahue, energy and climate justice campaigner with the Council of Canadians, said. “But continuing with the flawed Kinder Morgan and Energy East reviews is entirely inconsistent with Liberal promises. How can a 'transition strategy' rectify the failings around public participation and Indigenous consultation for these projects. I don't see how this can happen."

“We are not saying pipeline companies have to go back to square one,” Harden-Donahue told DeSmog Canada. “All evidence submitted goes on hold and this can be supplemented with additional evidence after the changes are made.”

Trudeau’s government has been clear on several occasions pipeline projects currently under National Energy Board review will not be forced to go back to “square one,” that is, begin their application process completely from scratch.

The legislative changes during the Harper government’s 2012 omnibus bill frenzy severely weakened key pieces of environmental protection legislative like the Navigable Waters Protection Act and the Species At Risk Act. The National Energy Board Act and the Canadian Environmental Assessment Act were also altered to ensure proposed pipelines made it through the regulatory process within 15-months, no matter how complex those projects may be.

“Some pipeline reviews may fall into that time limit. On the other hand, large projects with clear risks like Energy East or Kinder Morgan may not and this is problematic,” Harden-Donahue told DeSmog Canada.

There is little doubt the massive surge of public participation in the Northern Gateway pipeline hearings in B.C. served as the impetus for the Harper government to slap time limits on project reviews. With the exception of the Mackenzie Gas Project, the Board took less than 15 months to make its decisions on project applications between 2004 and 2012.

The controversial Northern Gateway proposal to pipe oilsands (also called tar sands) bitumen to B.C.’s northern coast drew records numbers of public participants for regulatory hearings and took four years to complete. The Board approved the project, albeit with over 200 conditions, in 2014.

By allowing pipeline reviews to proceed under the previous federal government’s rules, the Liberal government may be condemning projects to go back to ‘square one’ regardless. First Nations, and environmental organizations over the last four years have not been hesitant to take pipeline reviews to court over violations of ‘aboriginal’ rights or the freedom of expression.

In some cases, pipeline opponents are winning these legal battles, particularly those launched by First Nations.

Last week, the B.C. Supreme Court ruled in favour of coastal First Nations who argued in their case against Northern Gateway that the B.C. government fail to consult them about the pipeline proposal. The provincial government is now required to meaningfully consult coastal First Nations on the project, which many believe to be dead already.

Similar scenarios could play out for other pipeline projects.

The Board’s review of Trans Mountain faces a legal challenge by Tsleil-Waututh First Nation. Energy East has not come up against a legal case yet, but Treaty 3 First Nations in Ontario have vowed not to allow the pipeline to go through their territory without their free, prior and informed consent.

Line 9 pipeline, one of the first pipelines to be approved by the Board in the post-2012 omnibus bill era, is also being challenge by Deshkaan Ziibing (Chippewas of the Thames). The Ontario First Nation plans on taking their case all the way to the Supreme Court of Canada.

Image Credit: Shannon Ramos via Flickr

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A group of citizens fighting to speak about climate change and the oilsands at National Energy Board (NEB) reviews of pipeline projects, like the current Kinder Morgan Trans Mountain pipeline, are taking their battle all the way to the Supreme Court of Canada.

The group, comprised of landowners, academics, owners of business and many others, filed a constitutional challenge against the NEB’s restrictive policies that limit public participation and prevent discussion of climate and upstream oil and gas activities.

The purpose of taking the challenge to the Supreme Court “is to ask that Court to direct the NEB to do its job properly," David Martin, legal counsel, explained in a statement.

“The NEB's claim that it cannot consider scientific evidence regarding the long term impacts of the export of bitumen is simply wrong," Martin said.

"Instead the NEB is making a misguided choice to adopt an unconstitutionally narrow interpretation of its jurisdiction so as to avoid having to address the real competing public interests that pipeline approval applications necessarily entail."

In 2012, the federal government amended the National Energy Board Act, giving the NEB the final say in major infrastructure projects including pipelines.

The change, made through the infamous omnibus budget bill C-38, was accompanied by new rules limiting the length of hearings, who can participate in those hearings and what they can speak about.

“Given the potential environmental and health impacts of these pipeline projects, full public hearings on the merits and risks of the proposals are necessary to properly assess the public interest. This is precisely what the NEB has refused to do,” Martin said.

Over 468 individuals were prevented from participating in the Kinder Morgan Trans Mountain pipeline hearing process in April 2014. A group of 27 climate experts were prevented from participating on the basis that they wanted to dicuss the implications of the project for Canada's climate targets. 

The following month a small group including ForestEthics Advocacy Association and long-time environmentalist and author Tzeporah Berman, filed two motions with the NEB, challenging the constitutionality of the board’s exclusion of members of the public.

The NEB struck down the motions in October 2014, stating public hearings are not a forum for free expression.

Following a failed attempt to challenge the NEB in the Federal Court of Appeals, the group was left with no choice but to seek leave for appeal at the highest level in the Supreme Court of Canada.

“Due to rising public concern, the new CEO of the NEB Peter Watson has been touring the country telling Canadians the NEB does not have the mandate to look at issues related to climate change, and this is simply untrue,” Berman, applicant in the Supreme Court challenge, said.

“This case makes it clear that the Harper government gave them the mandate in Bill C-38 when they eliminated independent environmental assessments and gave the NEB broad jurisdiction to consider environmental impacts.”

The group argues the NEB’s role in assessing the long-term impacts of projects like pipelines — including expansion of the oilsands and associated climate impacts — “is a quintessential issue of national importance.”

Public participation in such assessments, the group also states, “is essential to democracy under the rule of law, particularly in a country whose economy and future is closely tied to the intelligent exploitation of our natural resources.” 

The Supreme Court of Canada has the authority to review any decisions made in the Federal Court of Appeal that involves matters of public importance.

The group advancing the challenge hopes the Supreme Court will restore the purpose of the NEB Act, to enable public participation and include public interest in a long-term assessment of major infrastructure projects like pipelines.

The decision will affect not only the Trans Mountain pipeline expansion, but will have implications for the Enbridge Line 9 project planned to carry oilsands crude between Ontario and Quebec as well as TransCanada’s Energy East pipeline, a massive project projected to carry more than 1 million barrels of oilsands crude to export facilities in New Brunswick each day.

Last month a coalition of groups including 350.org and LeadNow delivered a petition signed by more than 100,000 Canadians that demanded the NEB consider climate change in its review of the Energy East oilsands pipeline project.

Image Credit: Zhu via Flickr

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The National Energy Board (NEB), Canada’s federal pipeline regulator, has come under tremendous public criticism over the last three years for limiting public participation in its review of major oil pipeline proposals. In recent years the board has denied hundreds of Canadians an opportunity to voice their concerns on projects like Kinder Morgan’s Trans Mountain pipeline and Enbridge’s Line 9.

TransCanada’s Energy East, Canada’s largest proposed oil pipeline, is the newest project to land on the NEB’s desk. Despite major barriers to participation in the public hearing process, Canadians are preparing to apply in droves, even if just for the opportunity to be officially rejected from the process.

“We can’t sit back and we can’t afford the luxury of despair," Donna Sinclair of North Bay, Ontario said. "We need to resist efforts to shut us out of the process.”

Sinclair, who was denied the opportunity to submit a letter of comment regarding the Line 9 pipeline project in 2013, plans on applying to participate in the NEB review process for Energy East.

Why Participate in a Broken Process?

Despair about the process, especially for pipeline critics like Sinclair, is understandable enough. After recent changes to federal legislation the NEB now limits participation only to members of the public the board believes are “directly affected” or possess “relevant information or expertise” on a given project.

“The narrow restrictions on speech are completely anti-democratic,” Sinclair told DeSmog.

Canadians wishing to submit comments to the NEB on the 1.1 million barrels-a-day Energy East pipeline must complete the board’s ‘application to participate’ form by March. Completion of the form does not guarantee one’s participation in the NEB-run public hearing process.

What qualifies an individual as having the relevant level of expertise can at times be difficulty to ascertain. Last spring the NEB refused the application of 27 scientists and experts from B.C. universities who registered to participate in the Kinder Morgan Trans Mountain pipeline hearings.

Over two thousand people and organizations applied to participate in the NEB Trans Mountain hearings. Four hundred and sixty-eight were rejected outright.

The approval of the contentious Northern Gateway pipeline, despite broad public opposition, worked to convince many British Columbians that the board’s only real authority resides in its ability to dictate approval conditions. The NEB subjected the Northern Gateway pipeline’s approval to a hefty total of 209 conditions. 

Further weakening the NEB’s authority, thanks to omnibus budget bill C-38, decisions by the board are now subject to federal cabinet approval, leaving what was previously a quasi-judicious and independent decision ultimately in the hands of politicians.

Even individuals from the energy industry are losing faith in the process. Last November, Mark Eliesen, a former energy executive with 40 years experience, publicly quit the Kinder Morgan Trans Mountain public hearings, calling the NEB process "fraudulent" and a "public deception." Even B.C.'s environment minister Mark Polak said the province has had its "own issues with the process," which include the NEB defending Kinder Morgan's right to withhold critical information on things like spill response measures.

In this light, it is perhaps astonishing Canadians continue to apply en masse to be heard by the NEB on new proposed pipelines like Energy East.

So why does the public still try to elbow its way into a broken process which decides, ostensibly without their regard, the fate of new pipelines in Canada?

Hearings Drive Public Awareness, Opposition

“Participating in the NEB process helps to bring forward new information and keep the issue alive so that awareness and opposition grows,” Tzeporah Berman, legendary B.C. environmentalist and co-founder of ForestEthics, told DeSmog Canada.

“In the end the NEB may approve a project, but if you have approval without social license and are facing lawsuits, difficulty with provincial permits and massive protests, the barriers to development are pretty serious,” she said.

The Northern Gateway pipeline is a prime example.

Over one thousand five hundred Canadians presented oral statements against the pipeline to the NEB. Attempts to criticize pipeline opponents – most infamously in former Natural Resource Minister Joe Oliver’s ‘foreign funded radicals’ letter – drove further support for the opposition movement.

Defend Our Coast Protest Against the Northern Gateway Pipeline in 2012.

The NEB ultimately approved the project, yet the hearing process generated a massive anti-pipeline coalition comprised of engineers, scientists, First Nations, municipalities, environmental organizations and a good portion of the general public.

Strong social pressure undoubtedly influenced the unprecedented 209 conditions the NEB eventually attached to the pipeline’s approval. Meeting every condition may actually be impossible for the project’s proponent, Enbridge.

The NEB’s conditions for Enbridge’s Line 9 project in Ontario and Quebec have similarly delayed the pipeline’s progress.

Public concern and criticism may not sway the NEB’s recommendation or the federal government’s decision on a project, but it is certainly leaving its mark in other ways.

The Public Forces Unique Pipeline Issues To the Surface

“Public participation in recent pipeline processes have brought forth some unique issues,” Tanya Nayler, staff lawyer with the Ecojustice, an environmental law advocacy group, said.

For example, the ongoing NEB review of Trans Mountain has triggered a full on debate on where municipal by-laws and rights stand in relation to the powers of the NEB (not to mention a showdown on Burnaby Mountain last year).

The question of dilbit or diluted bitumen’s behaviour in water was brought to the fore largely because of the Northern Gateway hearings. Subsequent federal reports confirmed the substance sinks when mixed with sediment although recently-released government documents show just how little is known about the effects of dilbit when spilled into water.

For existing pipelines like Energy East, involvement in the NEB process means information that might otherwise be kept from the public becomes a matter of record.

Through information requests, participants in the Enbridge Line 9 hearings gained access to disconcerting information about the condition of the 40-year pipeline. Information requests also revealed Enbridge had failed to assess what would happen in the event of a pipeline rupture.

“New information is essential to driving a public narrative about the risks associated with these projects,” Berman said. 

Three thousand kilometers of the proposed Energy East pipeline travelling through Alberta, Saskatchewan, Manitoba and Ontario is comprised of an existing TransCanada natural gas pipeline. If approved that gas line will be converted to carry heavy crude and dilbit. One thousand six hundred kilometers of additional pipe will be constructed in Quebec and New Brunswick to extend the line to export terminals.

NEB Is the Only Venue Canada Has To Discussion National Energy Projects

Outside the NEB, Canada simply has no alternate venue where national issues connected to new pipelines can be discussed, leading participants to argue for much-needed structural change.

“Although I do agree the NEB has become slanted towards approvals, it is important to have the public participate in and challenge the process in order to highlight the problems in need of fixing,” Nayler said.

Of particular concern is the NEB’s refusal to consider the climate impacts of pipelines. From the outset, the board deemed climate impacts, and especially upstream emissions from the Alberta oilsands, as outside the purview of public hearings on the Northern Gateway, Trans Mountain and Energy East pipelines.

At 1.1 million barrels-a-day, Energy East would increase oilsands or tar sands production in Alberta by at least one third. The energy-intensive oilsands are Canada’s fastest growing source of GHG emissions.

Recently the U.S. EPA acknowledged the proposed Keystone XL pipeline, which would carry Alberta oilsands crude to export facilities in the Gulf of Mexico, would be the climate equivalent of adding 5.7 million new passenger cars to the road.

“The NEB is the only place we can try and be heard. Every other level of climate and environmental legislation has been removed by the Conservatives,” Cam Fenton, tar sands campaigner for 350.org, said.

350.org has launched an online campaign encouraging the public to apply to take part in the NEB process on Energy East, but explicitly on the grounds of addressing climate change – a demand that is likely to have consequences.

It was precisely for wanting to address climate change that the NEB denied the 27 experts mentioned above participation in the Trans Mountain public hearing process.

“We are going to force the NEB to reject all these people. We need to hold the NEB and the process accountable for not allowing people to speak about climate change,” Fenton told DeSmog Canada.

Over the last year, 350.org has collected one hundred thousand signatures from Canadians wanting the board to consider climate change in its Energy East decision.

Last week representatives traveled to Calgary to physically hand the petition to the NEB.

Image Credit: Light Brigading via Flickr, LeadNow, Greenpeace, TransCanada 

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This is a guest post by Michael Harris, author of Party of One: Stephen Harper and Canada's Radical Makeover. It originally appeared on iPolitics. 

In politics, as in baseball, the rule is simple: Three strikes and you’re out.

When Stephen Harper finally shambles towards the showers, head down, bat in hand, I’ll be thinking of Mighty Casey. For much of his career, Harper has umpired his own at-bats. But that role will soon — if briefly — fall to the people of Canada. Election Day is coming to Mudville.

Strike one against this government of oligarchs and corporate shills comes down to this: They have greedily championed oil and gas while doing nothing to protect air and water. Consider the piece of legislation with the Orwellian name — the Navigable Waters Protection Act. NDP house leader Nathan Cullen said it as well as anyone could:

“It means the removal of almost every lake and river we know from the Navigable Waters Protection Act. From one day to the next, we went from 2.5 million protected lakes and rivers in Canada to 159 lakes and rivers protected.”

On second thought, Green Party Leader Elizabeth May put it pretty well too: “In Bill C-38, Stephen Harper cancelled and gutted environmental laws brought in by Brian Mulroney. He’s now moved on to destroy environmental law brought in by Sir John A. MacDonald.”

And who gave the Conservatives the blueprint for gutting the Navigable Waters Protection Act? The pipeline industry. The new legislation gave them a big plum: Along with power lines, pipelines were removed from the legislation altogether.

After eight years in office, Harper’s promise to regulate the energy sector remains as empty as the look behind his eyes. There’s a reason the Green Party just enjoyed the best fundraising year in its short history. May, like most Canadians, sees the big picture: All Stephen Harper has done in office is play shortstop to big business.

Canada now has more corrupt companies on the World Bank’s blacklist than any other country in the world. A stunning 115 of those companies are comprised of disgraced engineering giant SNC-Lavalin and its subsidiaries — the same company that the Harper government supported with an $800 million loan guarantee to build the dubious Muskrat Falls power development in Newfoundland and Labrador.

Big business keeps telling workers they can’t have defined benefit pensions. Yet 43 per cent of Canadian CEOs have reserved that option for themselves. The PM has nothing to say about the gulf between worker and CEO pay packets.

The Conservatives have ignored the great issue of the age — the environment — and have offered instead a robber-baron vision of Canada built on unsustainable development and inflated oil prices. The lion’s share of the benefits have gone to foreign corporations and speculators.

Albertans get a tenth of what Norwegians get from the sale of their non-renewables. Since the public owns those resources, this amounts to a form of theft.

The Harper government has sabotaged international efforts to set a bolder course on global warming. How badly has he betrayed the environment? We’re talking Benedict Arnold here: He has transformed Environment Canada into just another oilpatch stooge, violating the purpose for which it was created.

And for the third time in a year, the Harper government is trying to stop an investigation into Canada’s environmental record. Although there is evidence that chemicals from toxic tailings ponds created by the tar sands are seeping into adjacent groundwater in Alberta, the Harper government is trying to terminate a proposed NAFTA probe into the environmental effects of tailings ponds. Poison leaching into the ground — and Harper doesn’t want a factual record.

Of course he doesn’t. He didn’t want a factual record on endangered polar bears or salmon farm pollution. And remember, this is the guy who didn’t mind selling asbestos to other countries when it was being treated as a deadly carcinogen here in Canada.

Strike two against Stephen Harper is his personal failure to give Canadians a more open, ethical and democratic government. That is, after all, what got him elected in 2006 (that and a little cheating during the campaign). So it was beyond hypocritical this past week for the PM to portray himself as a champion of democracy and free speech after the dreadful killings in Paris. He even politicizes tragedy.

Here is the real man … the one who dedicated his entire communications effort to smothering free speech, who undermined access to information, the life-blood of any democracy, with endless delays in handing over government documents that belong to us. In some cases, his government has simply — and unconstitutionally — refused to fork them over. He has also mused about charging $200 per access request — which would certainly suppress the urge to ask.

The real man has muzzled his own workers — even demanding loyalty oaths from them. He wanted the right to ask prospective government employees about their politics. He has viciously attacked any individual or institution that opposes him, from former parliamentary budget officer Kevin Page to the Chief Justice of the Supreme Court of Canada.

The real man repeatedly has tried to turn the Internet into a servant of the police state, disguising his intent with nonsense about child pornographers and “protection.”

The real man has starved the opposition of even the most basic information about the budget and deprived Parliament of the ability to debate legislation through the cynical use of enormous omnibus bills.

Sheila Fraser has named the disease. Laws are being passed in Stephen Harper’s Canada without scrutiny. (That didn’t seem to bother the dear host of CBC’s The Current when she interviewed on my new book. But it bothers me, and a lot of other people, a great deal.)

The real man doesn’t speak to his fellow premiers as a group, banishes journalists from public buildings and thinks Sun News is where it’s at.

It didn’t take a genius to work out that Harper’s reaction to the robocall scandal would be new legislation that will make it harder to catch cheaters the next time. And trust me, there will be a next time. So let it be said clearly: Stephen Harper is a champion of screwing free speech and democracy at every opportunity.

What’s strike three? Canada is not Harperland. Stephen Harper is not who we are.

Canadians don’t want to see medicare slowly reduced to a ghost of its former self by a prime minister who once headed an organization created to destroy it.

Despite the stunning selfishness of some of its stars, Canadians don’t want to see the CBC brought to its knees and “restructured” by a man who prefers public relations to journalism.

Finally, Canadians don’t want to save money on the backs of veterans who didn’t take to the closet in the face of clear and present danger — especially when Harper has so egregiously used the military for political gain. There has to be more for our soldiers than bullets and beans.

Stephen Harper will definitely come out swinging when he comes to the plate. He will drag out the usual mantra to continue his reign of error — that only Steve can protect us from terrorists, only Steve can protect us from recession, and only Steve has the stuff of leadership.

I don’t think it’s working this time. I suspect that when Mighty Steve strikes out, there will be joy in Mudville.

Michael Harris is a writer, journalist, and documentary filmmaker. He was awarded a Doctor of Laws for his “unceasing pursuit of justice for the less fortunate among us.” His eight books include Justice Denied, Unholy Orders, Rare ambition, Lament for an Ocean, and Con Game. His work has sparked four commissions of inquiry, and three of his books have been made into movies. His new book on the Harper majority government, Party of One, recently hit number one on Maclean’s magazine’s top ten list for Canadian non-fiction.

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The government of Ontario is holding community discussions in northern Ontario to hear opinions on TransCanada’s proposed Energy East oil pipeline project. Part of the $12 billion pipeline project involves converting 1,900 kilometres of pipeline from natural gas to oil in northern Ontario and constructing one hundred kilometers of new pipeline in southeastern Ontario.

Ontario’s public forum on Energy East may be the first of its kind in the country. Provinces do not usually hold community meetings on oil pipelines that cross provincial boundaries such as Energy East. The National Energy Board (NEB) – Canada’s energy regulator – has jurisdiction over interprovincial pipelines, not the provinces.  

The forum appears to be the result of public outcry in Ontario over Enbridge’s Line 9 oil pipeline project and restrictions the National Energy Board (NEB) placed on public participation in the project's review process. Last March, the NEB approved Line 9 despite public safety concerns about transporting oilsands bitumen through the pipeline.

“The erosion of the National Energy Board process, in both accessibility and scope, has left a void in need of being filled. That is why the Ontario government stepping in is so commendable and needed. The Ontario Energy Board process is much more inclusive to the broad range of concerns the public has,” says Yan Roberts of North Bay, Ontario. North Bay’s community discussion took place on April 2nd.   

The Ontario Energy Board – Ontario's energy regulator – has been instructed by the province to consult the public, First Nations and Metis, a wide range of provincial organizations, and technical experts on what they believe the impacts of the Energy East pipeline will be. All Ontarians regardless if they live along the proposed pipeline’s route are invited to participate in the community discussions and send in written comments to the Board.

The schedule of Ontario's Energy East public forum.

Even though the NEB must decide whether pipeline projects are “in the public interest,” the NEB relies on pipeline companies to inform communities on new projects. In recent years, the NEB has limited public hearing participation to only those members of the public that can demonstrate they are “directly affected” by pipeline projects or have “relevant expertise.”

“Visiting the towns along Energy East’s route for their community discussions and allowing testimony to be submitted easily really shows that the Ontario government is sincere about listening to and representing the many concerns Ontario has with Energy East,” Roberts told DeSmog Canada. Roberts, who has been following the Energy East project closely, is a farmer and community organizer for North Bay’s local citizens’ group. 

All Issues Including Climate Change and the Expansion of the Oilsands Are Heard

“I feel quite confident that citizens’ comments and concerns are being properly heard and reported to the OEB (Ontario Energy Board), and that the OEB is listening,” says Teika Newton of Kenora, Ontario.

Kenora in northwestern Ontario was the Ontario Energy Board’s first stop in its community discussions that began last week. Newton says the community meeting was well attended and all issues pertaining to the pipeline could be discussed. Unlike the NEB process on pipelines, residents were permitted to express concerns of Energy East’s impacts on climate change and the expansion of the oilsands (also called tar sands) in Alberta. The NEB no longer considers ‘upstream’ impacts of pipelines in its decisions.

TransCanada's Energy East's prosposed route in Ontario

“The OEB process involves engaging directly with communities, hearing concerns from citizens, and dutifully recording what has been heard, even if it is not flattering to government or the project proponents. It is unbiased and objective, as a regulator should be,” says Newton, who is a project manager of a university research project in Kenora and co-founder of Transition Kenora, a local sustainability group.

Feedback From Ontarians Will be the Basis of a Provincial Report

“Only time will tell if the OEB’s final report to the Minister of Energy will be as clear in articulating citizen opposition and concerns,” Newton told DeSmog Canada.

The Ontario Energy Board will file a report based on the feedback it receives over the coming months with Ontario’s Ministry of Energy. The Ministry will use the report in shaping Ontario’s position on the pipeline project, which will be presented to the NEB in the upcoming Energy East hearings. The hearings will be scheduled once TransCanada has submitted an official project application to the NEB. TransCanada is expected to apply this summer.

The current round of community discussions will wrap up in Cornwall, near Quebec on April 8th, but this is by no means the end of Ontario’s Energy East public forum. A second round of discussions will take place after TransCanada submits its application for the pipeline with the NEB. A conference for provincial organizations – from oil industry advocacy groups to environmental organizations – to present evidence on Energy East will also take place this summer.

“The OEB has created an avenue for people to have their concerns represented, whereas the NEB increasingly seems to have the public's concerns rejected. It will now be for the people of Ontario to come out and make their voices heard,” Roberts told DeSmog Canada. Roberts is also a local tourism operator in North Bay, Ontario.

Involvment in Pipeline Process Easy

The Ontario Energy Board’s consideration of the Energy East project questions what the loss of a natural gas pipeline will mean for the province’s natural gas supply and investigates the pipeline’s safety, economic impacts and the impacts on the local environment, communities, and First Nations and Metis.

“I am hopeful that through this careful and comprehensive process of engagement, they will obtain a clear picture of how Ontarians feel with regard to Energy East,” says Newton of Kenora, Ontario.

The Ontario Energy Board has created an easy to navigate website for the public forum, complete with information backgrounders on Energy East and ‘toolkits’ for Ontarians to start and record discussions on the pipeline with friends, family and co-workers. Written comments on Energy East will accepted until April 30th. A second round of written submissions will take place in the summer.

Neither the Ontario Energy Board nor the province have the legal power to stop the project. But neither does the NEB. The federal government assumed final decision-making power over all pipeline projects after the passage of the 2012 federal omnibus bill c-38. NEB decisions on pipeline projects are now considered 'recommendations.' 

If approved, Energy East will be the largest pipeline in North America stretching some 4,600-kilometers from Hardisty, Alberta to Saint John, New Brunswick.

TransCanada claims Energy East will transport 1.1 millions barrels of oil and oilsands bitumen a day. DeSmog Canada reported last month the majority of Energy East’s oil and bitumen will be exported overseas, and will not be refined domestically.

Image Credit: Ontario Energy Board, TransCanada

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Public hearings on Enbridge’s proposal to ship tar sands bitumen through its 37-year old Line 9 pipeline begin on October 8th in Montreal. These hearings are the first to be held under ‘new rules’ on public participation in major pipeline decisions that last year’s controversial federal omnibus bill C-38 introduced.

Provisions in C-38 allow the National Energy Board (NEB) – Canada’s independent energy regulator – to deny Canadians their right to have their concerns and opinions considered by the NEB when it makes decisions on pipelines. Only those the NEB deemed “directly affected” by the Line 9 project were approved to participate in the hearings.

The NEB also set a strict list of Line 9 issues participants in the hearings are allowed to comment on. Issues connected to the Line 9 project such as the expansion of the Albertan tar sands, climate change and the rights and health of indigenous peoples of northern Alberta are all absent from this list and will not be addressed during the hearings.

In effect, the NEB has told Canadians what they can and cannot care about when it comes to pipelines like Line 9.

“The game’s been rigged,” says Gerry Dunn, co-founder of Stop Line 9 Toronto.

“The decision on Line 9 has already been made because the federal government wants tar sands pipelines to be constructed,” Dunn told DeSmog. Stop Line 9 Toronto is a citizens-initiative engaging residents of northern Toronto on Line 9. Line 9 goes through major urban centers such as Toronto and Montreal.

C-38 gives the federal cabinet power to override any decision made by the NEB on Line 9 or any other pipeline project in the future.

Line 9 is “High Risk” for a Rupture Says Expert

Line 9 runs from Sarnia, Ontario to Montreal, passing through the most densely populated parts of Canada. It crosses the St Lawrence River, and every major waterway flowing into Lake Ontario. The 831-km pipeline has never transported bitumen.

A pipeline safety expert last August slammed Enbridge’s plans for Line 9 saying the pipeline will be “high risk” for a rupture if the NEB approves the project. Line 9 has the same design deficiencies as Enbridge’s Line 6B pipeline, which ruptured in Michigan in 2010 causing the largest inland oil spill in US history.

Line 6B was transporting bitumen when it burst. Enbridge is still cleaning up the spill.

1544 Participated in the Northern Gateway Hearings. Only 175 for Line 9.

Sadly, the new restrictive rules on public participation seem to have deterred Quebecers and Ontarians from taking part in the Line 9 hearings. This and the general lack of awareness around the Line 9 project resulted in the number of participants in the upcoming hearings being a mere fraction of the unprecedented levels of public participation in the Northern Gateway hearings.

The 10-page form the NEB required Canadians to complete in order to apply for permission-to-comment on Line 9 more than likely served as a further deterrent. British Columbians simply had to register themselves with the NEB to participate in the Northern Gateway hearings which ended last summer.

Sarah Harmer, Gord Downie & The Sadies, Hayden and the Minotaurs entertained over 1500 residents of Toronto on October 6th to raise awareness about the dangers of the Line 9 project. The event was organized in cooperation with Environmental Defence Canada 

The majority of the NEB approved applicants will not actually be participating in the eight days of Line 9 hearings split evenly between Montreal and Toronto. It appears either the NEB or the federal government is attempting to make public hearings themselves redundant.

No cross-examinations and no calling of expert witnesses will take place during the Line 9 hearings. There will be no oral statements such as 16-year old Sam Harrison’s insightful and compelling testimony against the Northern Gateway project that stole the spotlight last February.  

Only NEB approved “intervenors” – a role usually reserved for organizations, governments and companies – are allowed to present in the hearings and they can only present evidence already submitted to the NEB in written form.

Non-intervenors – the majority of participants in the case of Line 9 – were told they cannot make oral statements in the hearings and could only submit letters-of-comment.

“In my past experience the NEB gives more weight to evidence presented during the hearings as opposed to letters sent in by participants. We’ll see if this is the case with Line 9 as well,” says Margaret Vance, who as president of the Ontario Pipeline Landowners Association has been dealing with the NEB for over twenty years.

Public Has Lost Faith in the NEB process on Line 9

Rallies against Line 9 are planned for Montreal on October 10th and Toronto on October 19th, the last day of Line 9 hearings. The rallies will likely be expressions of the public's outrage and loss of faith in the NEB as legitimate venue for Canadians to voice their opinions about pipeline projects. 

Poster for Line 9 rally in Toronto on October 19th at the Metro Toronto Covention Center

“We are just going to keep on doing what we’ve been doing despite the NEB,” says Dunn of Stop Line 9 Toronto.

“We will continue to raise awareness about the dangers of transporting dilbit (diluted bitumen) through Toronto and work on the municipal council to ban dilbit shipments through the city,” Dunn told DeSmog Canada.

The Quebec government has promised to initiate their own review of the Line 9 project, although they still have not released the details. Ontarians are pushing their provincial government to conduct an independent environmental assessment of Line 9. There is a good chance if the NEB approves the Line 9 project the decision will be ignored by Ontarians and Quebecers.

Instead, the final verdict on Line 9 may come from the Ontario or Quebec governments or even the municipalities located along Line 9 who feel transporting bitumen through their communities is all risk and no gain.

The Line 9 hearings will take place from October 8 – 11th in Montreal and from October 16th – 19th in Toronto. The NEB could make its decision on Line 9 as early as January 2014.

Image Credit: Ecojustice, Enbridge, Environmental Defence Canada

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Lawyers for West Coast Environmental Law (WCEL) sent an open letter to the NAFTA-affiliated Commission for Environmental Protection (CEC) Wednesday, claiming Canada is "in violation of its obligations under the North American Agreement on Environmental Cooperation."

WCEL is urging also Canadians to write to the CEC and "tell them loud and clear that the Canadian government's recent attacks on environmental laws are a subsidy to the oil and gas and other industries and, as a result, we have failed to live up to our international commitments."

The North American Agreement on Environmental Cooperation (NAAEC) is the environmental accord made parallel to the North American Free Trade Agreement (NAFTA) in 1994 between Canada, the United States and Mexico.

The NAAEC established the CEC "to support cooperation among the NAFTA partners to address environmental issues of continental concern, including the environmental challenges and opportunities presented by continent-wide free trade."

The open letter comes in response to an invitation for comment from the CEC, which is marking its 20th anniversary by conducting a public review of NAFTA and NAAEC to "determine their effectiveness in fostering environmental protection and improvement in North America," according to a release from West Coast Environmental Law. A Joint Public Advisory Committee is currently accepting comments from the public.

"The environmental side-agreement was meant to ensure that NAFTA did not result in an incentive to weaken environmental laws at the request of industry, and an environmental race to the bottom," says Andrew Gage, Staff Counsel, West Coast Environmental Law. Gage thinks the CEC's public review is an opportunity for "Canadians to tell the Commission that that's just what has happened in Canada in recent years."

West Coast Environmental Law is positing that amendments made to Canada's environmental laws by the Harper government in the 2012 omnibus budget bills C-38 and C-45 have led to a "weakening of environmental protections contrary to the NAFTA side-agreement."

"Bills C-38 and C-45 gutted environmental protection in Canada," says Gage. "Canada's only law for reducing greenhouse gases was repealed, thousands of environmental assessments were eliminated, and our legal protection of fish, lakes and rivers were significantly weakened. That's not improvement, it's a backward slide."

West Coast Environmental Law is asking Canadians to join them in writing to the CEC, to ensure that Canada does not become a "NAFTA pollution haven."

Image: West Coast Environmental Law

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ForestEthics Advocacy Association, represented by Canadian civil rights and constitutional lawyer Clayton Ruby, is suing the Harper government over new rules that restrict citizens' ability to participate in public decisions about the energy industry.

The lawsuit, filed in Toronto today, calls for the Federal Court of Canada to "strike down provisions of the National Energy Board Act that unreasonably restrict public comment on project proposals," and challenge "new rules created by the National Energy Board (NEB), which prevent any discussion of the wisdom of tar sands development at the upcoming Enbridge Line 9B hearings."

The NEB regulates Canada's oil, gas and electricity industries, and approves all of its pipeline construction, mining, natural gas projects, and tar sands development.

The NEB's decisions have vast environmental and health repercussions, and ForestEthics Advocacy is arguing that blocking Canadians from participating in those decisions "violates citizens' right to free speech and puts our natural environment at risk."

The changes being targeted by the lawsuit were introduced via the 2012 Omnibus Budget Bill C-38, which also officially withdrew Canada from the Kyoto Protocol. As ForestEthics Advocacy explains in its backgrounder, buried in Bill C-38 were provisions preventing citizens from commenting at NEB hearings or giving written submissions to the Board.

Because of the new legislation, citizens wanting to participate in NEB hearings now have to "submit a nine-page application to the National Energy Board (NEB) justifying their right to speak to the issue." The NEB then chooses who does or doesn't get to speak, reserving "the right to exclude anyone except for those that it considers to be 'directly affected' by the proposed project."

The legislation has proven an effective tactic for muzzling Canadian voices. According to ForestEthics Advocacy, 1,544 people/entities were able to give testimony in 2012 at the NEB hearings for the Enbridge Northern Gateway pipeline, before the changes. This year, because of the new rules, only 175 will be allowed to speak at the hearings for the Enbridge Line 9B reversal project.

The project calls for the reversal of the 9B pipeline, which currently transports conventional oil across Quebec and Ontario, so that it can carry heavy crude including tar sands oil. The pipeline "crosses every Canadian river flowing into Lake Ontario, threatening the drinking water of millions."

The 9B project is the first pipeline proposal to come under authority of the new NEB rules. ForestEthics Advocacy warns that "there are other substantial pipeline projects in the queue," and that if the new NEB rules remain in place, "thousands of Canadians will be precluded from submitting comments on these and other projects."

According to Ruby, "the Conservative government has undermined the democratic rights of all Canadians to speak to the issues that impact them." Ruby says that he and ForestEthics are fighting the legislation and the NEB's new rules because they "violate fundamental free speech guarantees enshrined in the Canadian Charter of Rights and Freedoms."

"The amendments not only restrict who can speak to issues before the National Energy Board, but they also limit what those individuals are allowed to say," says ForestEthics Advocacy board member Tzeporah Berman. Berman thinks Canadians "deserve a fair public debate about the future of our economy and energy systems," but simply "aren't getting it."

Also joining the lawsuit is writer and member of the United Church of Canada Donna Sinclair, whose request to submit a letter of comment at the upcoming Enbridge Line 9B reversal project hearings was denied under the new rules.

"Tightening the rules around public participation to the extent that any citizen of this country – regardless of expertise or geographical location – cannot express their concerns is an extraordinary and profoundly dangerous affront to our democracy. I love my country and my beliefs call on me to respect our environment. That is why I chose to join this lawsuit," says Sinclair.

ForestEthics Advocacy is currently holding a 72-hour online fundraiser to cover the cost of the lawsuit's start-up fees, which come to $150,000. The target is $50,000, which will be matched to the dollar by two undisclosed donors.

ForestEthics Advocacy urges people to contribute and "fight for Canadians' right to speak up for the rivers, forests, lakes and landscapes that are threatened by tar sands expansion and proposed pipeline, rail and tanker projects."

Image Credit: Heather / Flickr

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The Harper government followed the advice of industry associations when making controversial changes to the Fisheries Act in the 2012 omnibus budget bills, documents relased through access to information legislation reveal.

Gloria Galloway writes for the Globe and Mail that in 2010, "the High Park Group consulting firm was commissioned by the Department of Fisheries and Oceans (DFO) to gather industry and business observations about the habitat protection provisions of the Fisheries Act."

The released documents show that phrasing regarding changes to fisheries protections "suggest that wording was offered by industry associations," according to Galloway.

Negative feedback from the 23 organizations consulted, including the Canadian Electricity Association (CEA), the Canadian Hydropower Association (CHA) and the Saskatchewan Chamber of Commerce (SKCC), correlates with changes made to legislation protecting fish and their habitats.

For example, the consultant's report said that "CEA/CHA and SKCC call for modification of the act's definition of 'fishery' to clarify that it refers to 'commercial, recreational, subsistence or aboriginal use of fish as a resource."

One of the biggest changes made in Bill C-38 was, as Galloway points out, the removal of "broad protections that covered all fish habitats," narrowing the focus of the law to protect only fish "that are part of a commercial, recreational or aboriginal fisheries, or to fish that support such a fishery."

Incidentally, the High Park Group reportedly noted that there was a "lack of cogent and substantive documentation of industry positions on the issue" of concerns about the pre-2012 Fisheries Act, as well as a lack of evidence to back up claims including "that it was too unpredictable, that it caused considerable barriers to infrastructure investment, and that it increased regulatory costs and timelines."

The Department of Fisheries and Oceans didn't neglect to also consult with environmental groups about the Fisheries Act, having done so between 2006 and 2009. It appears feedback from environmental groups did not figure as heavily in the changes ultimately made.

In fact, another report released by the department under access to information said that environmental groups called the Fisheries Act "one of the strongest laws in Canada that can be used to protect our environment" and called for it to be strengthened and enforced.

Andrew Gage of West Coast Environmental Law, one of the environmental groups consulted by the DFO, said the Harper Conservatives are "a government listening only to industry concerns."

The DFO reportedly said in an e-mail that they're "still focusing on preserving fish habitat," but using a "common-sense approach that focuses on managing threats to Canada's recreational, commercial and aboriginal fisheries and the fish and fish habitat on which they depend."

Critics of the changes to the Fisheries Act include Green Party Leader Elizabeth May, who said the DFO created "a new definition for what a fishery is and completely [ignored] the comments from a wide consultation from people on the ground who are actually protecting the fishery."

This isn't the first time that the Harper government has proven its commitment to putting 'natural resources development' and industry interests ahead of environmental protection.

Other documents released through access to information requests have already revealed that the federal government solicited industry support for environmental reforms written into the Omnibus Budget Bill C-38. Additonal documents show the government made pipeline development a top priority for that bill, at the fossil fuel industry's request, and further colluded with the oil and gas industry when tweaking the bill's environmental legislation and industrial project review process.

Image Credit: Geoffrey Kehrig / Flickr

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Canadians you will need to brush up on those resume writing skills and sharpen your pencils because it is time to fill out your 10-page applications to get permission to send in your comments about another oil pipeline.

And as of Monday, April 15th, you have less than five days left of the 14 days the National Energy Board (NEB) allows to do it. The deadline is noon on April 19th.

The permission-to-comment application consists of 10 pages of essay-style questions that should be submitted with a resume and references to backup your claim that you have a right to participate in the Line 9 pipeline public hearings.

Enbridge's 37-old Line 9 is being reversed to pump 300,000 bpd (barrels per day) of oil and bitumen from Alberta's tar sands through southern Ontario and Quebec.

“Since when does someone’s resume determine if they have the right to be concerned about what’s happening in their home community?” asked Keith Stewart of Greenpeace Canada.

“Anyone who lives and works in southern Ontario could be affected by a spill and everyone is affected by climate change,” Stewart said in a statement.

Under the new rules created by the 2012 federal omnibus bill C-38 the NEB can deny Canadians their right to participate in public hearings on energy projects. Only those “directly affected” by the Line 9 project and persons with “relevant information or expertise” will be approved to participate in the hearings, even be permitted to write a letter.

Enbridge's Line 9 crosses almost every major waterway that empties into Lake Erie and Lake Ontario. It's often less than 10 kilometres away from Lake Ontario. Enbridge wants to reverse Line 9 to flow from Sarnia to Montreal, expand its maximum capacity from 250,000 bpd to 300,000 bpd and ship “heavy crude” such as bitumen from the Alberta tar sands through the pipeline.

Few people have heard of Line 9. It has remained in the shadows of its younger, bigger – some may say better looking – siblings: the proposed Northern Gateway and Keystone XL pipelines. More people know about Enbridge's Line 6B — Line 9's twin in age and design– that spilled thousands of barrels into the Kalamazoo River in 2010 than Line 9.

It remains unclear who the NEB will allow to participate. It is likely most Ontarians will not be allowed to express their views even if they'd lose their only source of drinking water from a Line 9 leak that contaminates Lake Ontario or their groundwater. 

“Canadians do not have access to a venue where their concerns about the larger issues related to pipeline projects can be heard,” says Dayna Nadine Scott, associate professor at Osgoode Hall Law School. 

Those permitted to speak are restricted in what they can say. The NEB will not listen to views or concerns over issues such as the expansion of the tar sands industry or the possibility that Line 9's oil will be exported or even climate change.

“If the NEB refuses to listen to the public's concerns such as the way it (Line 9) will fuel expansion in the tar sands and contribute to climate change, or how it will lead to more deadly air emissions from the refineries around Sarnia, Montreal or Saint John, where else are Canadians to go?” Scott told DeSmog.

“Setting restrictions on what issues people can comment on in the hearings is like telling people what they can care about.” says Maryam Adrangi, a climate and energy campaigner for the Council of Canadians.

Ontarians and Quebeckers have every right to cry foul. Until recently there has been a virtual media black out on Line 9. The NEB or Enbridge are not required to advertise in newspapers, television or radio that the application to participate form is available. To make matters more confusing Albertans were given five weeks to submit their applications on a newer and smaller pipeline (see Edmonton-Hardisty pipeline).

Minister of Natural Resources Joe Oliver made it quite clear last week the new NEB rules are “to limit the number of people who participate in the public hearings to avoid what happened in the past.”

In 2011, more than 4,300 British Columbians – a record for public participation in a regulatory process – registered to participate in the Northern Gateway hearings. The historic turnout demonstrated widespread public concern regarding the pipeline, sparking a media frenzy and ultimately forcing the NEB to delay the process on Northern Gateway by one year to accommodate this surge.

The final decision on Line 9 will be made no later than March 19, 2014, but could come as early as December 1st, 2013.

“The long and detailed application form and having to get NEB approval is going to discourage members of our community from getting involved,” says Doug Anderson, president of Ontario DurhamCLEAR, a local environmental advocacy group.

“But we have little choice in the matter. We have to protect our communities and our water despite these obstacles,” Anderson told DeSmog.

Image Credit: Environmental Defense. 

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A new report from policy analysts calls on the Harper government to end the use of overloaded omnibus bills such as C-38 and C-45.

Based on posts originally published on Scott Clark and Peter DeVries’ blog 3D Policy, the report is set to appear in Inside Policy magazine. It harshly criticizes the government’s record when it comes to budget transparency.

“It is now recognized by most observers of the federal budget process, that the integrity and credibility of the process has been seriously eroded in recent years,” they write.

“Less information is now provided to the public in budgets than under previous Liberal and Conservative governments; the authority of Parliament over government spending has been weakened; the understanding of Canadians as to what the government is actually planning to do in the budget has been eroded. Canadians should be concerned not just with the erosion of Parliament’s authority, but also ultimately with their own ability to hold the government to account for its actions.”

Though they keep their comments to fiscal concerns, the issues they target also throw light on the Harper government’s tactics of obfuscation when it came to issues of environmental regulation, specifically in terms of Bill C-38 and Bill C-45.

“The two budget Bills associated with the 2012 budget were, to put it mildly, a disgrace and an insult to Parliament and to Canadians,” the report reads. “The use of Budget Omnibus Bills has grown to the point that they seriously undermine the integrity and credibility of the budget process and the authority of Parliament. Little information is now provided in the Budget, so it has become impossible in reading the budget documents to fully understand what the government is actually proposing to do. There is a clear lack of transparency and accountability.”

This echoes sentiments of protesters in the Idle No More movement who saw Bill C-38, which included changes to 70 federal laws in a single bill, and Bill C-45, which included the sweeping changes to environmental regulations, as directly circumventing their democratic rights.

Clark and Devries size of these bills, their lack of specific detail and the short time frame of their introduction make it impossible to for Parliament to ensure that the premier is accountable to Canadian citizens.

“Budget omnibus bills should be restricted to proposed tax changes only and all proposed spending initiatives should be presented either through the Main Estimates or through separate legislation, submitted to the applicable Parliamentary Committee for review,” they write.

Although this criticism is certainly not new, Harper is not open to it. Yesterday he accused Clark and DeVries of launching a partisan attack, saying that their work contradicted a “non-partisan” report by the CD Howe Institute.

What he did not notice, points out iPolitics's Colin Horgan, is that the CD Howe report contained similar criticism.

For their part, Clark and DeVries deny any partisan leanings. “We have never been members of any political party. We have both served under Conservative and Liberal governments and were never accused by them of being partisan. We provide independent advice to anyone or any organization/party who seeks it,” they told Maclean's Aaron Wherry.

“To date, there are over 100 articles on our blog. The article for Inside Policy brings together observation made in previous blogs – none of which received any reaction from the Government.”

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