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

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Canada's northwest coast stands alone as one of our planet's last unspoiled coastlines. Its rich assemblage of wildlife, wild rivers and intricate landscapes makes it qualitatively different from any other place in the world.

British Columbians have increasingly come to cherish this maritime commons of waters, islands, and forests. According to an Angus Reid public opinion poll, wild salmon — the foundation species on which this coastal bounty is built — are as important to British Columbians as the French language is to Quebec.

With March 24 marking the 25th anniversary of the Exxon Valdez oil spill, this disaster provides a lens into considering the Enbridge Northern Gateway oil tanker and pipeline project and the risk it poses to wild salmon, one of our country's greatest natural assets. The Valdez spilled more than 41 million litres of crude oil. Negative impacts from the spill are still felt, with only 13 of the 32 monitored wildlife populations, habitats and resource services injured in the spill listed as fully “recovered” or “very likely recovered.”

A recent report by the Raincoast Conservation Foundation concluded that the consequences just to wild Pacific salmon from Enbridge's project are not a risk worth taking. The report, "Embroiled: Salmon, Tankers and the Enbridge Northern Gateway Proposal," explores the connections between the oil industry's anticipated activities on the B.C. coast and how those activities could adversely affect salmon.

The Queen Charlotte Basin, the backdrop for Enbridge's oil tanker routes, is home to more than 5,000 spawning populations of wild salmon. These fish represent 58 per cent of Canada's Pacific salmon and are the foundation of B.C.'s remarkable coastal ecology, the iconic wildlife that rely on them and the basis for multi-million dollar economies in eco-tourism, salmon-based tourism and the salmon resource sector.

Salmon naturally have poor odds for survival. On average, only one salmon for every thousand eggs that a female lays will return to spawn. These odds have further declined in recent years due to intense human activities in salmon watersheds and in the ocean. Oil tankers and terminals present a new, added threat to salmon survival.

With a fresh oil spill, toxic vapours from the oil threaten living organisms that breathe in air and water. In contrast, other components in oil, known as polycyclic aromatic hydrocarbons (PAHs) are of equal, if not greater, concern. These compounds can persist in the environment for years, if not decades, and can continue to harm organisms long after the oil first spills. Even low levels of exposure to PAHs — in parts per billion — can have lethal consequences for salmon.

The most vulnerable period for salmon to be exposed to oil is during their egg incubation in the spawning gravels. Embryos and larvae are 10 times more sensitive to oil than adult salmon because their high lipid content attracts oil. In the gravels, chum and pink salmon are at the highest risk to marine oil spills because their parents tend to spawn in the lower reaches of streams, where oil residue can reach the gravels.

Early life is the next most vulnerable period from an oil spill. When young salmon first migrate to sea, they rely on estuaries and near-shore waters for food, protection, and safe migration. These areas are usually the most heavily impacted by oil spills.

Importantly, there are threats from industrial oil activities even in the absence of large spills. Oil tankers and terminal activities bring routine small spills, dramatically altered shorelines, river water extraction, increased underwater noise, ship wakes, turbidity and impacts to salmon food sources.

In Alaska's Port of Valdez in Prince William Sound, the rise and accumulation of PAHs in ocean sediments from small, chronic oil spills (while loading tankers), tracks perfectly the volume of oil shipped. In B.C., stressors from oil industry habitat loss and toxicity would add to cumulative affects that push salmon — most of which are already at their lowest levels of known abundance — beyond their ability to survive.

Enbridge has maintained there are no significant risks or consequences to salmon from their proposed Northern Gateway project. This is based on their wholly inadequate assessment of baseline conditions and project impacts, and is exacerbated by their failure to adequately consider cumulative impacts, including climate change. Consequently, the conclusions arrived by Enbridge cannot be scientifically supported in many cases.

In the absence of an adequate assessment of risk by Enbridge (risk defined as the probability of an oil spill times the consequence of an oil spill), Raincoast performed a limited risk assessment to demonstrate the type of analysis that should have been undertaken. Our assessment found that more than 400 spawning populations of salmon lie adjacent to the confined channels of the tanker routes and that these streams contain some the highest densities of spawning salmon on the B.C. coast. These salmon streams drain into Enbridge's highest risk routes for tanker accidents.

Salmon, and the wildlife and human communities that they support, are the very soul of British Columbia and the lifeblood of our coastal ecosystem. Despite the National Energy Board's blessing that Northern Gateway should go ahead, British Columbians are clearly not willing to surrender these values and way of life to the oil industry.

This article was co-authored by Misty MacDuffee, a biologist and fisheries ecologist with Raincoast Conservation Foundation.

Image via NOAA

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