Remember that whole fiasco in 2012 when Stephen Harper basically, you know, eviscerated most of Canada’s environmental laws in one ginormous budget bill?

People actually called it the ‘Environmental Destruction Act.’ People took to the streets. People, aka our members of parliament, pulled all-nighters proposing amendments to the bill, but Harper just laughed in their faces while playing the keyboard. Or something like that.

So yeah, things got pretty grim there for a minute (aka six years).

But not to worry, a young fella named Justin Trudeau came along and campaigned hard to restore environmental laws. He promised science. He promised consideration of climate impacts. He promised to restore the public trust in the environmental assessment process. Easy peasy, right?

After getting elected, the Liberals set off to do just that and for the last 14 months they’ve been hustling.

Now, we know the idea of an “environmental assessment review” isn’t super sexy, but the Liberals hit it with such enthusiasm we just couldn’t look away.

They sent expert panels from coast to coast to hear Canadians talk about science and Indigenous rights and climate change and how really if we just had a more grown-up way of assessing the environmental impacts of projects, maybe we wouldn’t have such fractious debates about mines and pipelines and dams (oh my!).

Today, finally, we found out  what the government is proposing as a solution to this whole thang. And well, it’s a work in progress (you know something’s complex when the government creates a 600-word infographic to try to simplify it) but we spoke to a whack of experts and here’s what we can say so far.

There are some good signs

Everyone loves a good sign, right? Scientists, academics and legal experts looking at today’s bill say the fact the government explicitly mentions sustainability, Indigenous rights, climate change, gender-equity and cumulative impacts of projects is, indeed, a good sign.

The bill introduces a new Impacts Assessment Act (that will replace the former Canadian Environmental Assessment Act), a new Canadian Energy Regulator Act (that will replace the National Energy Board Act) and proposes amendments to the Navigation Protection Act. A revamped Fisheries Act was announced earlier this week, to largely positive fanfare.

“There’s a lot of good stuff in there,” Anna Johnston, staff counsel with West Coast Environmental Law, told DeSmog Canada. “They’re making some important changes to some of the things that were most badly broken in the old laws.”

The new law would require major projects be judged according to new standards that consider “the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability …taking into account the rights of the Indigenous peoples of Canada.”

Previously there was no overarching sustainability or Indigenous rights standard against which major decisions on natural resource projects were measured. Instead projects were assessed for their “significant, adverse environmental impacts.” In other words, they were looking for projects to be less bad — but not necessarily, y’know, good.

So this is a big change, but also raises a lot of questions about just what things like ‘sustainability’ and ‘cumulative impacts’ mean and how decision-makers like Environment and Climate Change Minister Catherine McKenna will weigh those concerns against economic impacts.

“It’s great to see in this new law that there’s actually specific requirements to consider climate and sustainability,” Johnston said. “But I still don’t see anywhere a safeguard against trading off environment for economy.”

Remember When Harper Ruined Canada’s Environmental Laws? Here’s How the Liberals Want to Revamp Them https://t.co/IumeDcu1QC #cdnpoli pic.twitter.com/qXF87DtAtg

— DeSmog Canada (@DeSmogCanada) February 9, 2018

Ah yes, balancing the ol’ environment and economy

A lot of ink has been spilled…or pixels have been pixelled…over just what constitutes balance between environmental harms and economic goods.

But this new law digs into that. The creation of the new Impacts Assessment Agency and the Canada Energy Regulator is meant to help address more well-rounded questions of the public’s interest than their predecessors the Canadian Environmental Assessment Agency and the National Energy Board respectively did.

“Since the dawn of environmental law legislation in Canada in the 1970s, we have used our environmental assessments of major resource development projects, on a project by project basis, as proxy forums for having these discussions about how to balance economic development, environmental protection and, increasingly along with that, recognition and protection of Indigenous rights and interests,” Jason MacLean, assistant professor at the University of Saskatchewan College of Law, told DeSmog Canada.

“We’ve never truly developed an integrated national policy framework to, as a country, lay out a strategy, lay out a vision. Instead, we’ve gone project by project and in that…we’ve been prioritizing economic development over environmental protection.”

While the National Energy Board was initially created to facilitate a cross country natural gas pipeline, the new Canadian Energy Regulator has a more encompassing responsibility to keep energy projects safe and reliable while respecting Indigenous rights and engaging with the public in a transparent manner

Could be a game-changer.

Weeding out bad ideas

Other good signs: the new law is meant to include a lot more public participation and Indigenous consultation in projects before they enter the assessment phase. The idea being here that bad projects will be weeded out before they hit the formal review phase if they’re not a good fit for communities and First Nations.

The Impacts Assessment Act also explicitly dictates that traditional Indigenous knowledge is brought into the process and emphasizes more public participation and engagement.

This is a big turn around from the 2012 changes, which sought to limit public participation — a move that resulted in a lot more community and Indigenous legal challenges after the fact.

Let’s get regional

The new legislation places an emphasis on regional impact assessments — studying how one new project will impact current and future projects in that same region and how unique ecosystems may play into whether or not a specific region is appropriate for, say, a pipeline or three LNG export facilities.

But “the act needs to go a few steps further than it currently does with regional assessments,” Justina Ray, senior scientist with the Wildlife Conservation Society, told DeSmog Canada.

Ray said the inclusion of regional impacts assessments in the legislation was a “glimmer of hope.”

“That is significant in that it was never there before and in order to really effectively assess and stave off cumulative effects you have to take a regional perspective,” Ray said, adding impacts on ecosystems, habitat for species and climate change all factor into those cumulative impacts.

Yet those region specific impacts assessments are discretionary.

“You wonder how things will progress and how realistically,” Ray said. “If the provinces are gung-ho on regional assessments, how will they be implemented at the end of the day?”

Much mystery remains …

The new bill is long — over 341 pages — and yet it still doesn’t cover everything.

“Understanding legislation is hard,” Aerin Jacob, scientist with the Yellowstone to Yukon Conservation Initiative, told DeSmog Canada. “And there’s only so much you can put in a bill and that’s normal.”

“But the devil is in the details. So how the legislation is rolled out and what policy and regulations comes along with it, that’s where a lot of the clarity will come from,” Jacob said.

“I don’t think we can say this legislation is a homerun by any means.”

For example, on the issue of cumulative impacts assessments, there is no clear outline of impacts thresholds that cannot be crossed, Jacob said.

“Without having an ecological threshold — or social or health impacts threshold — written into the legislation we don’t know when we’ve passed them.”

Specific benchmarks would be really useful in evaluating whether a project is truly in the public interest, Jacob said.

“If we know our targets for, say, greenhouse gas emissions and we have realistic estimate of what projects are going to emit…we add those up and it is exceeds targets provincially or federally, we know it’s not compatible.” Similar thresholds could be used to avoid dangerous levels of disturbance for caribou or grizzly habitat, Jacob said.

Clear as mud

“There are some aspects of this that are better than I expected, some that are worrisome, and some aspects that are in desperate need of clarification,” Robert Gibson, sustainability assessment expert and professor at the University of Waterloo, told DeSmog Canada.

“I think some of the things about which there are mysteries are going to remain that way until there are decisions by the regulatory powers.”

One major uncertainty remains around what projects in particular will trigger a federal environmental assessment. The federal government plans on conducting further public consultation about what projects ought to face federal review.

“Until the regulations determine what the categories are in this case, it’s uncertain,” Gibson said. “There are competing interests and in a way it’s good that is still open to potential debate. But there’s no commitment to clarity there.”

“This is certainly better than the current law. That’s what we’d call a low hurdle in sports,” Gibson said. “So I don’t think people are going to be astonished by that.”

— With files from Jimmy Thomson

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Sandbags, bales of weed-free straw, crushed gravel and silt fencing are among the extra supplies BC Hydro has stockpiled at the Site C dam construction site to avoid federal fines.

In early January the Canadian Environmental Assessment Agency issued BC Hydro with a Notice of Intent to Issue an Order after inspectors found that “no erosion and sediment contingency supplies” were to be found at three sites.

The agency also noted BC Hydro could face fines of up to $400,000 for not meeting the conditions set out in its environmental certificate.

It’s not the first time BC Hydro has been found in contravention of the law. In May, the Canadian Environmental Assessment Agency found BC Hydro had failed to measure air pollution and threatened BC Hydro with a $400,000 fine.

BC Hydro, in a Jan. 5 letter to the Environmental Assessment Agency, said all measures had been taken to restore the Site C project to a “state of conformity,” and, after studying photographs supplied by BC Hydro, the agency agreed that there was no need to issue the order, which could have resulted in hefty fines.

“The contingency supplies, including hay bales and sandbags, must be on hand to mitigate potential environmental effects, such as those to fish and fish habitat, as a result of construction activities,” said CEAA communications spokeswoman Lucille Jamault in an e-mailed answer to questions from DeSmog Canada.

B.C.’s Environmental Assessment Office (EAO) previously issued three warnings to BC Hydro over pollution, erosion and sediment concerns during construction of the controversial $9 billion dam.

The EAO, after an August inspection, found that “excessive sedimentation is still occurring and the risk of erosion has not been effectively mitigated over much of the project.”

Problems included a landslide that occurred as a result of an overloaded sediment fence, which deposited sediment directly into the Moberly River, a temporary road constructed through a sediment fence that was supposed to protect a wetland even though “less environmentally detrimental options exist,” and plugged culverts.

.@BCHydro Let Off Hook for $400,000 #SiteC Dam Fine… Again https://t.co/E2ANbCGauq @LavoieJudith #bcpoli #cdnpoli #bcelxn17

— DeSmog Canada (@DeSmogCanada) February 16, 2017

On Oct. 18 BC Hydro responded with a two-month plan to address sediment and erosion control and, although no further enforcement action was taken, the problem areas are being monitored.

The B.C. agency also issued two orders on Dec. 22, both of which require action from BC Hydro and its’ contractors.

The first found that BC Hydro was not complying with conditions to conduct amphibian surveys and to protect amphibians on roads adjacent to wetlands and requires a detailed plan to be in place by Feb. 15.

The second order found BC Hydro was not complying with well monitoring requirements and, by January 16, the agency wants a list of all wells within one kilometre of the reservoir and details of the monitoring program.

BC Hydro did not return phone calls from DeSmog Canada, but a story posted on the BC Hydro site on Jan. 7 said that the construction, rather than being “rife with environmental violations,” stands as “a study in environmental best practice for major utility projects.”

Approval of the project, which will flood 83 kilometres of the main Peace River Valley and 35 kilometres of the tributary valleys, came with 150 legally binding federal and provincial conditions and that means the work by contractors is continually being inspected, says the article.

“We took immediate steps to respond in the face of some severe rain events that caused flash flooding and made erosion and sediment control even more challenging. In fact, the precipitation over the May to August 2016 period would be likely to occur only once or twice per century,” it says.

A new erosion and silt control program is in place, with 30 kilometres of silt fencing, nine sediment ponds and 240,000 square metres of the area hydroseeded. Fifteen employees on site are responsible for the erosion and sediment control program.

However, Ken Boon, Peace Valley Landowner Association president, said questions remain about the effects of the construction on the water quality in the Peace River and its tributaries.

“There are ongoing concerns with silt from the project. There are many concerns that have not been addressed with machines working directly in the river and creating silt,” he said.

The in-stream silt monitor appears to be 10 kilometres downstream from where the work is being done, Boon said.

“You have to wonder if that’s why everything seems to stay in allowable limits.”

However, it is difficult for opponents to monitor the work as a public viewing site that was scheduled to be in use last fall will now not be completed until later this year, Boon said.

“I think there were stability problems,” he said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

On June 23, the Federal Court of Appeal struck down the Harper government’s approval of the proposed Enbridge Northern Gateway pipeline on account of failing to properly consult with adversely affected First Nations.

Many environmental and Indigenous groups cited the ruling as a win, but buried in the decision is a legal interpretation that upholds former Primer Minister Stephen Harper’s changes to environmental assessment law in the country.

Some argue this interpretation of the new Canadian Environmental Assessment Act (CEAA) will undermine the ability for the public to challenge the legality of environmental assessment reports for future projects, such as Kinder Morgan’s Trans Mountain pipeline and TransCanada’s Energy East pipeline.

The precedent established through that June 23 ruling means it’s now exclusively up to the federal cabinet — rather than the courts — to determine whether an environmental assessment report was properly conducted, meaning that the public can no longer challenge reports on the grounds of perceived incompleteness or negligence.

As a result, federal cabinet may be missing key perspectives while making decisions on major resource projects.

“That cabinet is empowered to make these decisions with the public being denied any kind of role or option is, at the very least, anti-democratic and at its worst you could even look at it as creating a kind of despotic situation around these issues,” says Chris Genovali, executive director of the Raincoast Conservation Foundation.

Raincoast Conservation Foundation Applying to Supreme Court For Review of Interpretation

On September 21, Ecojustice applied on behalf of Raincoast to the Supreme Court of Canada for leave to appeal.

If leave to appeal is granted — which fewer than 10 per cent of applicants receive — the country’s highest court will proceed to determine whether the Federal Court of Appeals erred in its interpretation of Sections 29 to 31 of the new CEAA.

Barry Robinson, lawyer and national program director for Ecojustice, says that since the former CEAA was introduced in 1992, the public could challenge reports on the grounds that there were perceived errors or omissions.

In the case of the Northern Gateway, such alleged errors included the review panel not considering the impacts of the project on humpback whales and other at-risk species, as well as evidence that diluted bitumen would sink in water and seriously complicate clean-up efforts.

“Most of the cases said that what you need is a legally prepared report before you make any decision based on that report,” Robinson says. “Just in this Gateway case was the first time the court said ‘well, actually, only the governor in council [or federal cabinet] can decide whether the report was legally prepared.’ We just kind of went ‘that doesn’t sound consistent with past case law.’ ”

How Harper’s Changes to Environmental Laws Are Being Leveraged by #Pipeline Companies https://t.co/sJcCDAu7rf @james_m_wilt #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) October 14, 2016

Kinder Morgan Already Referenced Precedent in Attempts to Dismiss Challenges

Robinson notes that in a bit of an odd twist, the courts spent a significant chunk of time interpreting Sections 29 to 31 of the new CEAA but ended up not actually applying it to Northern Gateway as there were other transitional provisions that applied.

“In fact, throughout the whole thing, the court was analyzing the wrong section,” he says.

But Genovali says that we’ve already started to see the fallout from the setting of the precedent.

Days after the Enbridge decision was announced, Kinder Morgan introduced a motion referencing the interpretation in order to dismiss a lawsuit also filed by Ecojustice on behalf of Raincoast over the National Energy Board’s allegedly flawed final report on its Trans Mountain pipeline (specifically on whether the Species at Risk Act was violated by the NEB’s actions with regards to southern resident killer whales, a critically endangered species).

Then, last month, the Federal Court of Appeal relied on the decision to deny an application by the Tsleil-Waututh First Nation over a similar issue in regards to Kinder Morgan.

“It immediately struck us as soon as this came down that this was something that had to be challenged and if we can’t get this reversed through this appeal I think the Canadian public needs to press upon the Trudeau government that they have to rectify this,” Genovali says.

“This is a vestige of the Harper era. I think if we take the prime minister and his government’s statements at face value then they need to do something about this because this would appear to contravene all of the values that he articulated during the campaign and continues to speak to.”

Robinson says that it usually takes between four to six months for the Supreme Court to decide whether to grant leave to appeal.

Given recent history, it seems likely that pipeline companies will continue to refer to the precedent until then. If the court decides not to grant leave to appeal, the precedent will be maintained and cabinet will continue to be the sole arbiters of whether an EA report was legally prepared or not.

Image: Kinder Morgan Trans Mountain pipeline construction. Photo: Transmountain.com

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

In an open letter to Catherine McKenna, Canada’s Minister of Environment and Climate Change, a group of scientists publicly challenged the integrity of an environmental assessment reviewing the impacts of a major liquefied natural gas export terminal on the west coast of British Columbia.   The Pacific Northwest LNG plant, a controversial $11.4-billion export terminal, is proposed for Lelu Island near Prince Rupert. The terminal is slated to be built next to Flora Bank, a unique eelgrass rich intertidal zone scientists have termed a salmon superhighway.   According to salmon ecologist Michael Price with SkeenaWild Conservation Trust, and signatory of the open letter, the environmental assessment of the project represents a “failure of process.”   “There’s certainly a frustration with [the Canadian Environmental Assessment Agency]. We feel CEAA has not incorporated the best available science.”

Price said CEAA asked both Fisheries and Oceans Canada as well as Natural Resources Canada to provide comment on the Pacific Northwest project.   “But what they were asked by CEAA to comment on was a very narrow aspect of the project and had nothing to do with other available science.”   Price pointed out the work of Dr. Patrick McLaren which found the construction of the LNG terminal on Lelu Island would likely cause a mass erosion event at Flora Bank, dismantling the eelgrass beds critical for salmon.   “McLaren has good evidence that by building this structure you’re going to destabilize Flora Bank,” Price said, “but the proponent brings in their own 3-D model saying, ‘well, actually, there will be no negative effects.’”   “Fisheries and Oceans Canada as well as Natural Resources Canada were asked to review only the proponent’s evidence and was not tasked with reviewing any other lines of evidence, even those that are peer reviewed.”   “It’s a failure of the precautionary principle,” Price said, adding it’s also a “failure of process.”   Price said that in a review of CEAA’s mandate it was unclear if a broad spectrum of science had to be considered when performing an environmental assessment.

Like what you're reading? Sign up for our email newsletter!

“I don’t see any concrete language that CEAA — in the process of assessing risk — that they need to incorporate best available science,” Price said.   “So we could be talking about a process limitation where CEAA 2012 falls short. There could be a loophole where CEAA 2012 isn’t mandated to consider science beyond that provided by the proponent.”   “Is CEAA being negligent? Maybe they’re just following their mandate,” he said.   He added that under current Fisheries Act rules, the proponent is also legally allowed to destroy salmon habitat as long as a mitigation plan is put in place that results in “no net loss of habitat.”   “If you’re going to destroy 27 square metres of salmon habitat you can simply promise to recreate 27 square metres of that lost habitat somewhere else,” he said.   “Very few of these mitigation projects actually equate to the same productivity of natural habitat. Actually creating eelgrass habitat is extremely difficult. We have a hard time as humans to recreate what Mother Nature has created.”   Price added that from a scientific perspective the ecosystem under threat is not easily replaceable.   “What is at stake is at the moment a fairly pristine, highly productive nursery ground for salmon and other fishes.”   “More migrating juvenile salmon have been found here than in any other habitat surveyed throughout the Skeena estuary,” Price said. “It’s a pristine and highly productive natural environment that will be altered significantly. The proponent is quite clear they’re project will have this effect but, they say, they will mitigate.”   And technically, Price said, “they’re following the rules because there will be no ‘net loss’ of habitat.”   He added that the specific mitigation plan to replace the lost habitat hasn’t been made available for the project.   “They can’t tell us what their mitigation plan is because they haven’t developed it yet, but they tell CEAA they are going to recreate the habitat and CEAA says, ‘okay.’”   The public comment period on the draft environmental review ends tonight at midnight.   “Theoretically not only can CEAA consider new lines of evidence put forward but that is what they are supposed to do, incorporate comments or information put forward that is relevant.”

Image: Tavish Campbell

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The B.C. government cannot expect support from First Nations for its much-touted liquefied natural gas (LNG) projects if the province insists on steamrolling ahead with the Site C dam, a First Nations chief is warning.

“They want support on LNG, and the level of destruction that is going to bring, and then they want Site C as well. They can’t have them both,” Chief Roland Willson of West Moberly First Nation told DeSmog Canada.

There is no logical reason to have both, Willson added, saying the provincial government has ignored alternatives to Site C, even as the federal Joint Review Panel found there is no immediate need for the power and excess power would be sold at a loss.

[view:in_this_series=block_1]

Treaty 8 First Nations in B.C. are vehemently opposed to BC Hydro’s plans to build a third massive dam on the Peace River that would flood more than 5,000 hectares of land, swamp more than 330 recorded archaeological sites and — in direct contravention of the 1899 treaty — destroy land now used for hunting, fishing and collecting medicinal plants.

Initially, some Treaty 8 Tribal Association nations were willing to look at what the B.C. government was offering in terms of mitigation and compensation, but, as more information became available, Willson noted a change in attitude.

“Now everyone is opposed,” he said.

The treaty states First Nations have the right to continue with their way of life “for as long as the sun shines, the grass grows and the rivers flow.”

But with massive resource development in the area, the sun, grass and rivers are all at risk and Site C is the final straw, Willson said.

With high levels of methylmercury in fish because of rotting vegetation from the previous two dams, fishing is restricted and ungulates, such as caribou, are being destroyed by the major projects, said Treaty 8 Tribal Association Chief Liz Logan, who has asked the UN Special Rapporteur James Anaya to call on the government of British Columbia to assess cumulative impacts of industrial activity in the area.

A recent study, Passages from the Peace (PDF), by the David Suzuki Foundation and Global Forest Watch Canada found 28,587 kilometres of pipelines, 45,293 kilometres of roads and 116,725 kilometres of seismic lines used for oil and gas exploration within the Peace region.

“We have become the cash register for the province . . . .Now our way of life is going to be interfered with again,” Logan said.

“We are bush people and this is our grocery store, our pharmacy, our school and our church. It still sustains us.”

The treaty is alive, despite damage inflicted on the ecosystem by resource extraction and previous Peace River dams, so the province should think carefully about ramifications of treaty-breaking, Willson said.

The Joint Review Panel agreed the dam will have significant adverse effects on First Nations practices and heritage and that many of those effects cannot be mitigated.

A total of 21 First Nations would be affected if the valley is flooded and, with numerous legal decisions reasserting First Nations’ constitutional rights, there is growing awareness that a court challenge could hold up the $7.9 billion project for years if the province decides this fall to proceed.

First Nations file for judicial review of panel report

This month the Mikisew Cree First Nation, which has nine reserves in northeastern Alberta, and the Athabasca Chipewyan First Nation, which has eight reserves near the southwestern tip of Lake Athabasca, filed a Federal Court application for a judicial review of the Joint Review Panel report.

The two Treaty 8 First Nations rely on the Peace Athabasca Delta for plant gathering, fishing, hunting and travel through the many lakes and river tributaries and presented evidence at the hearings that showed the Delta is already ecologically stressed, with low water levels affecting wildlife habitat and harvesting.

Any further changes to water levels in the Delta could prevent First Nations from exercising their treaty rights, according to the application, which aims to have some sections of the Joint Review Panel report declared invalid and unlawful, some sections quashed and others referred back to the panel for further consideration.

The application is asking the Federal Court to prohibit the federal and provincial governments from taking any further actions that would allow Site C to proceed until a new report is issued that complies with “principles of procedural fairness.”

BC Hydro spokesman Dave Conway said he could not speculate about the possibility of Site C heading to court.

“However, I can tell you that we aim to fulfill our duty to consult and, where appropriate, accommodate aboriginal groups,” he said.

Logan said the five Treaty 8 nations have not yet voted on whether to go to court, but there are heavy hints that any attempt to build the dam will immediately become entangled in legal battles.

Chief's mandate: 'Oppose this right to the end'

“The only mandate I have right now is to oppose this right to the end. We are going to go back to our people once we hear the decision,” Logan said.

Willson supports the judicial review of the environmental assessment and then, if necessary, a court challenge.

But going to court is expensive, especially when going up against the deep pockets of BC Hydro and the provincial government, he said.

BC Hydro has talked with more than 50 aboriginal groups in hundreds of meetings since 2007 and will continue to look for mitigation measures, Conway said.

“We are committed to providing lasting benefits to aboriginal groups through the construction and operation of the project. In addition, we are negotiating impact benefit agreements with some First Nations where appropriate,” he said.

An impact benefit agreement could mean a lump sum payment, payments over time, cash equivalent benefits or agreements around provincial Crown land, Conway said.

But a major hurdle is the distrust First Nations have for government.

West Moberley First Nation Chief Roland Willson. Credit: Garth Lenz.

“Nothing the B.C. government has done since I have been chief has made me trust that I can believe anything they do,” Willson said.

Logan said she always tries to be hopeful.

“But, unfortunately, in my 16 years of working with this government, I have learned not to really trust what comes out of their mouth,” she said.

Site C likely to get entangled in court challenges

As decision time approaches, other Site C opponents are counting on the power of First Nations.

There is no doubt Treaty 8 nations have a strong case for stopping the dam plans, said Andrea Morison, coordinator of the Peace Valley Environment Association.

“That bodes very well for the campaign and I absolutely expect it would go to court,” Morison said.

However, in the meantime, Peace Valley residents and First Nations are hoping Site C will be rejected and there will be no need for a legal battle.

That will take more pressure from people in southern B.C., Logan said. A petition to stop the Site C dam and save the Peace River Valley has been set up at StopSiteC.org

“We are doing everything we can, along with our environmental friends from down south, to create awareness and tell people ‘it’s coming out of your pocket,’ ” she said.

Photo: Treaty 8 Tribal Chief Liz Logan by Zack Embree.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The proposed Site C dam on the Peace River is the best alternative for providing B.C. with reliable cheap power, but BC Hydro has not proved that the power is needed in the immediate future, says a much-anticipated report by the federal Joint Review Panel.

The report does not give a definitive yes or no answer to the planned 1,100 megawatt dam, which will flood about 5,500 hectares of land, but includes 50 recommendations on issues such as threats to endangered wildlife, health effects for those living in the area and destruction of First Nations heritage sites.

If approved, project construction would begin in 2015 with completion projected for 2023.

The ambivalent report says B.C. will need new energy and new capacity at some point and “Site C would be the least expensive of the alternatives and its cost advantages would increase with the passing decades as inflation makes alternatives more costly.”

However, “the panel cannot conclude that the power of Site C is needed on the schedule presented.”

[view:in_this_series=block_1]

There are also important environmental, social, economic, health and heritage costs, panel members concluded.

Risks to fish and wildlife include harmful and irreversible effects on migratory birds and species such as the western toad and short-eared owl.

“Justification must rest on an unambiguous need for the power and analyses showing its financial costs being sufficiently attractive as to make tolerable the bearing of substantial environmental, social and other costs,” it says.

High costs yet alternatives not considered

The report notes that BC Hydro has not looked closely enough at alternatives such as geothermal energy.

“The panel concludes that a failure to pursue research over the last 30 years into B.C.’s geothermal resources has left B.C Hydro without information about a resource that BC Hydro thinks may offer up to 700 megawatts of form, economic power with low environmental costs,” it says

The estimated $7.9 billion cost raised questions, but panel members said they do not have the information, time or resources to look at the accuracy of cost estimates and recommended that, if the project proceeds, costs should be examined in detail by the province’s independent regulator, the B.C. Utilities Commission (BCUC).

The Liberal government previously exempted Site C from BCUC scrutiny and, although the recommendation was applauded by groups such as the Peace Valley Environment Association, Energy Minister Bill Bennett immediately threw cold water on the idea.

“This project has been poked, prodded and analyzed for the last 35 years,” he said

“I think subjecting it to another review after all the years it has been studied, is not a good use of public money.”

Bennett believes BC Hydro will keep to its budget, despite reports showing mega-dams around the world often run 50 per cent over budget.

BC Hydro has included $1.52 billion for inflation and contingencies, he said.

“Of course with large projects like these, there’s no guarantees, but with such a large contingency fund and such a large fund for inflation and all the work that BC Hydro has done, I think we can have confidence in that final number,” he said.

The proposal must gain the approval of the federal and provincial governments and Bennett said he will take a recommendation to cabinet this fall after further environmental and First Nations consultations.

Indecisiveness not all around

Bennett, who said he views the Joint Panel review as “mostly positive,” emphasized that he has not yet made up his mind about the dam, which, if approved, would be the most expensive project built in the province.

“I am right square in the middle of this,” he said.

NDP leader John Horgan said the report shows the Liberal approach to Site C has been reckless and does not have a foundation in the realities of the North American energy market.

“The challenge ratepayers have is they are facing 28 per cent rate increases over the next five years and we have a government proposing to spend $8 billion on power that we may not need, at a time we don’t have the money to spend,” he said.

Former BCUC chair Mark Jaccard, professor in the school of resource and environmental management at Simon Fraser University, said he is impressed the panel tried to address big questions such as climate impact.

“But I was a bit frustrated that the panel waffled so much. I think I wanted them to say yeah or nay,” he said.

It is a difficult decision, because there are compelling arguments on both sides, and politicians will ultimately have to take a stand, but it would have been good to have a definitive opinion from experts who listened to presentations at the hearings, Jaccard said.

“They are trying to say all the things for all the people,” he said.

Signs of optimism

In the Peace Valley, the report is generating some optimism and Andrea Morison, Peace Valley Environment Association coordinator, applauded recommendations that show the panel has significant concerns about impacts.

“It shows the proponent has not fully demonstrated the need for the project and that there are other sources they should be looking at. Another key point is they can’t conclude the accuracy of the cost estimate,” she said.

Morison believes that once Bennett has studied the report he will decide to follow the key recommendation of referring it to BCUC for a cost review.

“One thing we can count on with politicians is that they do change their minds and it’s not solely his decision,” she said.

Hudson’s Hope Mayor Gwen Johansson also wants Bennett to pass the project to BCUC for scrutiny.

“It would be disappointing if he did not follow that recommendation,” she said.

Treaty 8 First Nations Tribal Chief Liz Logan said the core message to government is why build a project that is not needed. Alternative solutions such as wind power or smaller hydro projects must be considered instead, Logan said.

“We are still going to be vocal about it,” said Logan, who hopes British Columbians throughout the province will put pressure on the province.

“This project doesn’t just affect us on the ground, it’s going to affect the pocketbook of every British Columbian,” she said, adding she wants the project’s cumulative effects studied.

Those living in the area that will be affected by the dam see the report as validation of their belief that the adverse effects outweigh any benefits.

Spring is finally coming to the valley, said Ross Peck, a retired guide outfitter whose family has lived in the area since 1924.The grass is greening up, the leaves are about to pop and the valley is full of animals. I saw the first osprey today he said.

If the dam goes ahead, part of his property will be flooded, roads will cut close to his home and Peck believes he would have to leave.

“I don’t think we could sit on our deck and watch them clearcutting for the reservoir,” he said.

Esther Pederson, who would lose part of her farmland and her home to the dam, has little faith in any consultation process.

“The consultation so far has been ‘do you want to sell your farm now or later,’ ” she said.

Armed with the concerns raised in the report, it should be possible to stall approval at least until the next election, Pederson said.

“It could be dragged out forever and the First Nations people are lined up to take the government to court,” she said.

Photo: Peace Valley courtesy of Andrea Morison and Don Hoffmann.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Opponents of the proposed Site C dam are hoping a report from the Canadian Environmental Assessment Agency panel, to be released Thursday, will emphasize potential environmental damage from the massive dam and persuade the federal and provincial governments that the project should be scrapped.

The report from the Joint Review Panel into BC Hydro’s $8-billion plan to build a dam that would flood 83 kilometres of the Peace River, putting 14,000 hectares of farmland under water, was submitted May 1 to federal Environment Minister Leona Aglukkaq and the B.C. Environmental Assessment Office, but there was no obligation to release it to the public for 45 days.

“The fact that they decided to share it just after they got it themselves is a little bit surprising, but we are feeling optimistic and hoping for the best,” said Andrea Morison of the Peace Valley Environment Association.

The panel’s recommendations, put together after 26 days of hearings, are not binding on government, but are likely to outline issues and possible solutions as well as indicating whether some environmental problems are insurmountable.

“There’s nothing binding, but I think it holds a considerable amount of weight,” Morison said.

The report will be posted on the Canadian Environmental Assessment Agency’s website Thursday. The provincial and federal governments must make their own decisions within 174 days, or six months, of the report being issued.

“The province has been very clear from the get-go that they support Site C,” said Joe Foy, Wilderness Committee’s national campaign director.

However, if the federal government decides it can’t support the project, Site C would probably die, Foy speculated.

“It’s clearly a matter that would require the federal OK. There are massive impacts that are clearly in the federal arena,” he said.

In February, the federal government rejected the New Prosperity Mine near Williams Lake, despite it having provincial support, after concluding the mine would have environmental effects that could not be mitigated.

There is speculation that even within the B.C. Liberal party there are doubts about whether Site C is necessary, although Premier Christy Clark has made it clear she is a supporter and much of the last election campaign was built on proceeding with Site C as a key building block of developing a liquefied natural gas (LNG) industry.

However, Energy and Mines Minister Bill Bennett has consistently been more cautious and said shortly after the election, when revelations were made about BC Hydro’s new capital costs and construction cost overruns, that he wanted to make sure that government would not be facing cost overruns with Site C. Because BC Hydro is a Crown corporation, cost overruns would be borne by taxpayers.

“Bill Bennett frequently seems to be keeping the door open on Site C,” Foy said.

“He told us in January that he had a team of researchers looking at alternatives to Site C.”

Bennett also recently told the Globe and Mail that there could be another level of screening on Site C costs. Government previously decided to circumvent the Crown corporation’s regulator, the B.C. Utilities Commission, which would have looked at financial issues. The environmental review is not expected to look closely at cost, necessity or practicality.

Questions have also been raised about whether LNG plants would find hydro power too expensive and would be more likely to use gas to feed their massive electricity needs.

Paul Kariya, executive director of Clean Energy BC — an industry trade association that represents independent power producers, including gas generators — recently told DeSmog Canada that the major LNG companies are looking at powering their plants via natural gas.

“Times have changed. We’ve been through an era of building big dams,” Kariya said. “When you build a dam, you get this one massive lump of power and that’s not the way that energy is planned for anymore.”

Kariya says independent power producers offer a more incremental approach to meeting demand.

However, even with a report from the World Convention on Dams — which says that projects routinely come in at 50 per cent more than estimated — and mounting evidence that the power produced by Site C is not needed and is likely to be sold at a loss, it is doubtful that the province will back down, said retired federal economist Erik Andersen.

“They are addicted to big photo-op projects,” he said.

“Over the course of the past four decades, the need for a Site C generation facility has been part of the larger and exaggerated demand narrative that BC Hydro has been telling.”

Site C — which gets its moniker from being the third dam proposed for the Peace River — has been on the books since the ’70s. It was first turned down by the independent B.C. Utilities Commission in the early '80s, which said BC Hydro hadn't demonstrated that the power was needed or that the dam was preferable to all other sources of power. In the ’90s, BC Hydro suspended the project again because the need for power was still considered insufficient.

Morison is hoping that, with release of the panel’s report, Site C will start catching the attention of people throughout the province, especially if they learn their Hydro bills are likely to rise beyond the 28 per cent increase already expected over the next five years.

“They need to realize that this is going to cost them,” she said.

— With files from Emma Gilchrist

Photo: The Peace River Valley Near the Halfway River by Tuchodi via Flickr.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.