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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As we pull up to the mouth of the Hazeltine Creek, where billions of litres of mining waste from the Imperial Metals Mount Polley mine spilled into Quesnel Lake on August 4th, I’m thinking to myself what numerous locals have recently said to me: this shouldn’t have happened.

All of the warning signs were present that the waste pit for the mine was overburdened: employees raised the alarm, government citations were issued, engineering reports contained warnings.

It shouldn’t have happened, and yet it did.

And now local residents and First Nations will shoulder the full, long-term burden of the accident on the environment, the significance of which won’t be truly know for decades to come.

If you visit the town of Likely, B.C. (which you should because the entire region, much of it unaffected by the spill, is stunning and the locals beyond hospitable) you’ll hear a lot of support for the mining industry, but a growing frustration over irresponsible management and lack of oversight.

British Columbians should know, however, that less oversight and regulation is exactly what is being promised to the extractive industry at both the provincial and federal level.

In June Christy Clark recently congratulated Bill Bennett, B.C.’s minister of energy and mines, for ridding industry of ”red tape” surrounding new mining projects. According to a mandate letter, over the next year Bennett is expected to “encourage mine development across the province” and work with the Ministry of Finance to extend new mining allowances.

Bennett is also expected to “support the development of new mines and major mine expansions by working with industry…to ensure that BC’s mines permitting process is the best in Canada.”

Nowhere are more strident environmental standards, best practices, addressing community concerns or responsible development mentioned in the minister’s mandate.

On the federal level changes made to Canada’s environmental legislation in the infamous Omnibus Budget Bill C-38 also pave the way for less regulatory oversight as well as fewer and less-robust environmental assessments before projects are built or expanded.

Omnibus Budget Bill C-45, released soon after C-38, made massive changes to the Navigable Waters Protection Act, effectively removing 99.7 per cent of Canada’s lakes and 99.9 per cent of Canada’s rivers from federal environmental oversight.

The new legislation also makes it very difficult for citizens to participate in hearings (if hearings are even open to the public, which isn’t the case for the Kinder Morgan Trans Mountain expansion) where their testimonies can play a role in discussing the feasibility and desirability of a project in a specific area.

Under the new laws permits, like the ones Imperial Metals was obliged to obtain in order to expand mining operations at Mount Polley, can be approved without an environmental assessment. New mining projects and expansions are now positioned to occur without due scientific and environmental review or public input.

That means local residents will have less information and less say in the decision-making process about projects that stand to affect them the most.

The city of Kamloops is currently fighting the proposed Ajax mine, a mega gold and copper mine that would not only operate a massive tailings facility mere kilometres from the Coquihalla Highway but would be built directly on top of the Kinder Morgan Trans Mountain pipeline.

An accident of the scale at Mount Polley would be catastrophic so close to the city limits of Kamloops, the tournament capital of B.C.

In B.C.’s 2012 Mining Strategy, Christy Clark said the province is on track to meet its Jobs Plan target of opening eight new mines and expanding nine others by 2015.

The promise of expanded mining in this province is being made before appropriate public consultation and environmental safety reviews, not to mention adequate First Nations consent.

The push for industrial development appears top priority, no matter what the social and environmental costs.

Similarly the province is pushing for new oil pipelines and LNG projects that communities have explicitly fought to prevent or, in some cases, voted against.

The residents of Likely, just like many other British Columbians, have high expectations for both government and industry. But with the collapse of the tailings pond wall has come a collapse of trust, something I hope our provincial government and Imperial Metals will work overtime to rebuild.

If the breach of the Mount Polley tailings pond can bring anything into sharper relief for British Columbians, it is that our relationship with industry in this province is heading in the wrong direction.

If we want to avoid the caution tape, we’re going to have to rethink our perspective on red tape.

Industry needs productive, safe and enabling parameters to work within and British Columbians deserve to rest assured that our business leaders and elected representatives are engineering those limits right – with a foundation much stronger than that of the Mount Polley tailings pond.

Image Credit: Imperial Metals' Mount Polley Mine. Photo by Carol Linnitt.

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The indigenous-led movement that took Canada by storm earlier this year – Idle No More – has called for a national day of action on the 250th anniversary of the first legal document formally recognizing indigenous rights in Canada.

“We must collectively send a clear message that our movement will not stop intervening in Canada’s attempts to conduct business as usual, until our right to free, prior, and informed consent is universally upheld,” reads the announcement for the national day of action on Idle No More’s website.

On October 7th, Idle No More will continue its mission to move the relationship between indigenous and non-indigenous Canadians forward to an era of mutual understanding and respect and demand Canada fulfill its moral and legal obligations to uphold the “nation to nation agreements” made long ago.

The media attention around Idle No More may have died down but the movement never disappeared. Across the country Idle No More actions took place this summer under the banner of “Sovereignty Summer.” Idle No More groups exist in practically every major Canadian city.

Now the movement The Guardian describes as “the best defence against Canada’s resource rush” is set to make its mark on October 7th, the anniversary of the British Royal Proclamation of 1763. The Proclamation is the basis of many indigenous rights and land claims in Canada – past and present.

Idle No More grew out of teach-ins organized by four Saskatchewan women on the weakening of environmental legislation and infringements on indigenous rights through the passing of federal omnibus bill C-45 in 2012. The movement exploded last winter into months of protests such as Chief Theresa Spence’s hunger strike and other actions held in Canada and around the world.

Idle No More founders: Sheelah McLean, Nina Wilson, Sylvia McAdam, & Jessica Gordon. 

At the heart of Idle No More’s struggle is the spirit of the “nation to nation agreements” or treaties between the British Crown and indigenous peoples to share the lands of Canada equally. The Proclamation of 1763 set out the framework for creating these treaties.

King George III declared in the Proclamation the lands west of Quebec and the Thirteen Colonies (presently US Eastern Seaboard) were the “hunting grounds” of indigenous peoples for their exclusive use. Furthermore, under the Proclamation only the British Crown was permitted to negotiate treaties and buy land in this “Indian Territory.”

Map of borders set by British Royal Proclamation of 1763

Any “rights or freedoms” granted under the Proclamation of 1763 are protected in Section 25 of the Canadian Charter of Rights and Freedoms.

“Treaties are agreements that cannot be altered or broken by one side of the two Nations,” states the Idle No More Manifesto. The consensus of both Nations in the agreement is necessary for any changes to be valid.

Enter bill C-45.

The massive 457-page omnibus bill C-45 removed 99% Canada’s lake and rivers from a protected list under the Navigable Water Protection Act. Amendments to the Indian Act under C-45 now permit the leasing out of reserve land to companies, for example, even if the majority of the First Nation or its band council living on the land in question are opposed. Only majority support at a single community meeting – regardless of how many people attend – is necessary to legalize the lease.

“It’s so clear what the government is doing: The bill opens the land for resource development, for oil pipelines,” said Idle No More co-founder Sheelah McLean in an interview with Yes Magazine.

The federal government did not consult with indigenous peoples over the provisions of C-45 that affected them. Changes to the Indian Act and the Navigable Waters Protection Act unquestionably impact indigenous culture and rights. This lands C-45 on constitutionally shaky ground.

“The Crown [federal or provincial governments] is honor-bound to consult with aboriginal people whose claimed rights might be negatively affected. This duty to consult arises any time the Crown contemplates action that could have such an impact,” said Professor Kent McNeil of Osgoode Hall Law School at York University in a Toronto Star op-ed.

“The implementation of the amendments [in C-45] could result in a slew of litigation as aboriginal people turn to the courts to uphold their constitutionally protected rights,” McNeil concluded. 

Sadly, this was the message about Idle No More many Canadians missed when the movement dominated the media sphere last winter. A promise made many years ago to share the vast lands of Canada equally was broken by the British Crown and its successor, the Canadian government. Idle No More seeks to reinstate that agreement and elevate the relationship between indigenous and non-indigenous to one of mutual understanding, equality and respect.

This message should resonate loud and clear in the Canadian psyche on October 7th.

Image Credit: Idle No More, Canadian Encyclopedia

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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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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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