B.C. Senator Larry Campbell has told a Sunshine Coast resident of Scandinavian descent to “move to your previous Europe,” “get some help for your social anxiety,” and “enjoy your make-believe world” after she wrote to Campbell and other senators urging them to support Bill C-48.

The bill, which would effectively ban large oil tanker traffic along B.C.’s north coast from the tip of northern Vancouver Island to Alaska, was recently rejected by the Senate’s transport committee after passing third reading in Parliament, where it was supported by MPs from four out of five political parties.

Ann Haglund emailed all 105 senators on May 22 urging them to back the bill, which formalizes a voluntary oil tanker moratorium that has existed for more than 30 years. The Senate can vote to pass the bill despite the transport committee’s 6-6 deadlock vote that meant the committee did not recommend the bill for passage into law.

Campbell, who doesn’t sit on the transport committee, was only one of two senators to respond with more than a courtesy acknowledgement of Haglund’s communication.

Email exchange personifies Canada’s growing divide over oil extraction

But Campbell’s return message was far from what Haglund was expecting and a terse email exchange ensued between the two — one that personifies the growing divide in Canada over the future of oil extraction amidst a growing climate crisis.

After Haglund emailed Campbell telling him that Europe is leading the rest of the world in phasing out gas-powered vehicles, saying Canada should be a leader, “not a follower,” and suggesting that Campbell wanted Canada to follow in “your brother Trump’s ways,” the senator became condescending.

“It is clear that while you can whine and complain you personally do nothing,” he shot back on an email from his iPhone that was part of the heated exchange, shared with The Narwhal by a third party.

“Eventually you might mature although I doubt it. . . Like most of your ridiculous statements you suppose rather than find truth. Given all of you[r] weird statements I’d recommend you get some help for your social anxiety.”

Campbell, the former mayor of Vancouver, did not return a call and email from The Narwhal.

‘Extremely problematic’ for unelected Senate to veto majority will

The loaded comments from the independent senator come as Bill C-48 risks derailment in the wake of intense lobbying of senators by the oil industry and as the unelected Senate tests the limits of its power following reforms introduced by the Trudeau government.

If the oil tanker ban  — promised by Prime Minister Justin Trudeau during the last federal election campaign — is rejected or stalled by the Senate without going to Parliament for royal assent before the current legislative session ends June 21, it will die on the order paper.

“It strikes me as being extremely problematic that an unelected body is trying to veto the will of a majority government that was elected on a promise to ban oil tankers on the north coast of B.C.,” George Hoberg, a political scientist in environment and natural resource policy at UBC’s School of Public Policy and Global Affairs, told The Narwhal.

“I think the Senate has been able to maintain some legitimacy by not overstepping its role historically.”

Former Liberal MP Jody Wilson-Raybould, Prime Minister Justin Trudeau and Art Sterritt walk on the boardwalk in Hartley Bay, B.C., along the proposed Enbridge Northern Gateway oil tanker route.

Senate ‘lobbied heavily’ to reject Bill C-48

Only rarely has the Senate, whose members are appointed by the governing political party, ever vetoed bills. Yet Bill C-48 is not the only bill currently held up in the Red Chamber as members test new rules aimed at transforming the Senate into a non-partisan chamber.

Also stalled are a bill introduced by former interim Conservative Party leader Rona Ambrose that would require training for judges in sexual-assault law and Bill C-69, which overhauls the review process for major projects, including pipelines.

MP Nathan Cullen, whose riding of Skeena- Bulkley Valley includes the north coast, said senators have been lobbied in an “an exhaustive effort” by the Canadian Association of Petroleum Producers (CAPP), individual oil companies and groups with special interests.

“It’s affecting bills from different parties,” Cullen said in an interview. “Yet there’s a common theme where the Senate has been lobbied heavily and maybe feels like it has the authority to reject bills that the Canadian people democratically voted for.”

Enbridge, Imperial Oil, CAPP all lobbied senators

From November 20 to April 11, CAPP lobbied senators 19 times, meeting up to four senators on the same day, according to the federal lobbyist registry.

Records show that CAPP lobbied Alberta independent Senator Paula Simons, who cast the deciding transport committee vote recommending that the Senate reject Bill C-48, on three different occasions during that time period.

Sixteen individual oil and pipeline companies and groups also lobbied a slew of individual senators from November 2018 to the end of April 2019, reporting a total of 122 lobbying communications with senators, including with more than one senator at a time, according to the registry.

Those companies and groups included Enbridge, Imperial Oil, TransCanada and the Canadian Energy Pipeline Association.

Cullen said the new Senate rules — which have left a majority of senators sitting as independents and Conservative senators as the only remaining overtly partisan group in the chamber — have “emboldened” senators, even though they are not elected and not accountable to Canadians.

“The well-connected lobbyists have come to realize that this might be an avenue for them to have influence,” Cullen said.

“That also creates a difficult scenario for Canadians because they can’t afford lobbyists to take folks out for dinner.”

Oil spill cleanup near Gale Creek, in Heiltsuk territory on October 29, 2016. Photo: Tavish Campbell / Heiltsuk Tribal Council

Coastal First Nations call lobbying ‘very concerning’

As the clock ticks down to the end of the legislative session, Coastal First Nations sent an open letter to Parliamentarians this week noting that the pledge to formalize the tanker moratorium tanker ban was popularly endorsed when the Liberals won the 2015 election.

“We are asking you in this letter to abide by the wishes of the electorate and, moreover, to respect your own constitutional role as an appointed chamber,” Coastal First Nations Chief Marilyn Slett told senators in the letter.

In an interview with The Narwhal, Slett emphasized that Coastal First Nations have lived along B.C.’s coast for 700 generations and rely on the coastal economy for their well-being.

“The efforts of others with special interests is very concerning,” said Slett, who is also chief of the Heiltsuk Tribal Council.

“We’d bear the outcome from any [oil tanker spills] that would happen on the coast of British Columbia. . . We’ve seen some of the catastrophes that have happened and we’ve lived through the Nathan E. Stewart spill, which is quite small compared to the grand scheme of what could happen on our waters.”

In October 2016, the Nathan E. Stewart, a 30-metre tugboat owned by the Kirby Corporation based in Houston, Texas, ploughed into a reef near the community of Bella Bella in the heart of Heiltsuk territory.

The accident sent more than 110,000 litres of diesel fuel and more than 2,000 litres of lubricant into the fast-moving currents of Seaforth Channel, contaminating a rich Heiltsuk harvest ground containing more than 25 food items, including sea cucumber, rockfish and halibut.

“People harvested everything there, clams and kelp,” Slett said. “It was a spiritual site. The clam fishing closed for two years. That’s the winter economy for our people. It gets them through the winter.”

Two and a half years later, there is still no environmental impact assessment for the spill, Slett noted.

She said the coastal economy should not be put at stake “for the interests of private industry or a few individuals.”

“This is something we just can’t do.”

Majority of coastal Indigenous communities support oil tanker ban

The majority of Indigenous communities along the coast support bill C-48.

They include the Haida, Heiltsuk, Haisla, Metlakatla, Gitga’at, Kitasoo, Gitxaala and the hereditary leaders of the Lax Kw’alaams.

The elected council of Lax Kw’alaams opposes the oil tanker ban, as does the Nisga’a.

In March, when federal Transport Minister Marc Garneau appeared before the Senate transport committee, he pointed out that two groups vocally opposed to the ban — the proposed Eagle Spirit Pipeline and Aboriginal Equity Partners, representing oil and gas producing First Nations and Metis along the rejected Enbridge Northern Gateway pipeline route — represent private commercial interests.

“I do not see them as being in the same category as coastal First Nations and Indigenous communities,” Garneau said. “The stakes are very different for private sector interests than for communities who would see potentially their livelihoods, culture and way of life imperiled by a serious oil spill.”

Hoberg said he views the controversy around Bill C-48 as a reflection of the increasing polarization of Canadian politics “and especially of the divide between the Alberta, or Prairie, view of things and the rest of Canada’s view of things.”

“This ethic has developed in Alberta represented most forcefully by [Premier Jason] Kenney but also by [former Premier Rachel] Notley before him,” Hoberg said.

“That whole ethic is basically that it’s completely inappropriate for constraints to be placed on the Alberta oil industry. And that’s an absurd notion given the environmental risks and the social risks involved in large scale oil production and especially given the climate emergency.”

Garneau: other countries could send oil tankers along north coast if bill fails

Garneau told the Senate transport committee that if Canada allows crude oil tankers along the north coast there’s nothing to stop other countries from sending large oil tankers into the area as well.

The tanker ban dates back to 1985, when the Canadian Coast Guard, U.S. Coast Guard and industry developed a voluntary oil tanker exclusion zone along B.C.’s north coastline.

The voluntary ban was instituted “due to concerns by Canada about the potentially devastating impacts of a major oil tanker spill off the coast of British Columbia.” Garneau told the committee.

“The legislation is a critical step forward in fulfilling our government’s pledge to achieve a world-leading marine safety system that promotes responsible shipping and protects Canada’s waters,” said Garneau, whose mandate letter from Trudeau included instructions to formalize the tanker ban.

Similar bans exist in the United States in Puget Sound and in the Olympic Coast National Marine Sanctuary. There is also a moratorium on large oil tankers in the Strait of Bonifacio between Corsica and Sardinia and in the Turkish Straits.

Cullen said Bill C-48 is running out of time to become law and the Senate needs to send the bill back to the House within the next week, especially if there are any amendments.

“We’re running out of runway,” he said.

“Senators. . . don’t have a mandate from Canadians. They don’t face that responsibility of going back to voters. Therefore, they have to advise and recommend. But they cannot become the authorities on legislation because they simply don’t have the democratic backing to do it.”

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If you read any commentary in the wake of Trudeau’s pipeline approvals, you might have come across the sentiment that pipeline opponents are “environmental NIMBYs” and “angry mobs” who are “stuck in bondage to strange ideologies…eyes ablaze with truth oil,” having “demolished trust in agencies.”

Conversely, pipeline proponents are “realistic” and “rational,” able to offer up “informed discussion and courtesy” due to their nuanced understandings of economics and deep respect for regulatory processes.

“In the current political climate, if you disagree with an economic model or the critical assumptions underlying it you court the risk of being labelled an extremist or emotional, or simply unqualified to participate in the debate,” says Jason MacLean, assistant professor of law at Lakehead University and author of two recent Maclean’s essays on climate policy.

It’s a quaint notion: proponents of oilsands and pipeline expansion are mere technocrats only trying to do what’s best for Canada but are being tragically derailed by rabid protesters who don’t care about facts and figures.

But it disguises the much deeper fact that fossil fuel companies exist for the sole purpose of ensuring maximum returns for their shareholders.

Writing off industry opponents as blindly anti-everything ignores the incredible amount of sociopolitical influence the fossil fuel industry deploys to maintain its position in an increasingly carbon-constrained world.

Fossil Fuel Industry’s Barriers to a Low-Carbon Economy

“Private investments of [the fossil fuel industry’s] magnitude create an enormous inertia because the investors will want their money back and investments recuperated, and profit in the end,” Andreas Malm, author of Fossil Capital: The Rise of Steam Power and the Roots of Global Warming, told DeSmog Canada.

“That means they will fight tooth and nail to maintain the infrastructures for as long as possible and for as long as they can generate revenue.”

Despite a clear and urgent need to transition our energy systems to renewable sources, dismantling fossil fuel-based infrastructure has proven “very, very difficult to do,” says Malm, who serves as an associate senior lecturer in human ecology at Sweden’s Lund University.

“Efforts to mitigate climate change have generally been very naive about how deeply rooted fossil fuels are in certain power structures related to wealth accumulation.”

“Their business interests are at stake here,” he concludes. “They want to survive. They want to continue digging fossil fuels out of the ground. As long as they are not challenged, we won’t make any progress on climate.”

From supercharged lobbying efforts to hefty political donations to high-profile public relations campaigns that influence even our deepest personal notions of freedom, the fossil fuel industry plays an aggressive role in contouring the politically possible  — all in an effort to keep opponents and alternatives at bay.

Fossil Fuels and the Making of a Carbon-Dependent Way of Life

A common refrain from fossil fuel companies and associations is that their products underpin our entire way of life.

In many ways, this is true.

As Bob Johnson, associate professor of history at National University in San Diego and author of Carbon Nation: Fossil Fuels in the Making of American Culture, points out, everything from cooking soup on a stove, to practising hot yoga, to flying across the country to visit relatives for Christmas, to protecting national parks from deforestation draws on the availability of cheap fossil fuels.

But it’s also no coincidence that we’re living in a society completely dependent on fossil fuels.

“That way of life had to be engineered,” says Timothy Mitchell, chair and professor of Middle Eastern, South Asian and African Studies at Columbia University and author of Carbon Democracy: Political Power in the Age of Oil.

“The oil companies and others worked very hard to create a way of life that would become enormously dependent on oil and carbon-heavy: gas-guzzling automobiles, to interstate highway systems, to suburban life, to any number of ways of living to which there were always alternatives.”

It might sound conspiratorial. But there are many examples of fossil fuel companies directly funding efforts to deny climate change, including ExxonMobil and Talisman Energy (in 2004, the latter funnelled money to the notorious Friends of Science group, which claims climate change is caused by solar flares).

Mitchell says industry has also done a lot to encourage car-based cultures, including sponsoring and publishing travel guides, maps and ads in which the car became a centrepiece of consumer lifestyles.

Johnson said that’s been aided by the work of think tanks and industry associations — including the Cato Institute (started and funded by Charles Koch) and the American Petroleum Institute — creating a deep cultural relationship between concepts of mobility and freedom.

Johnson says an industry film in the 1950s proposed a Petroleum Bill of Rights, taking the U.S. Constitution and assigning relationships between specific articles and petroleum, such as the freedom of movement and travel.

“These are people and institutions whose goal is to shape public opinion through things like children’s programming, editorials, buying up newspaper influence, having journalists in hand and subsidizing politicized science,” Johnson says.

As the University of Ottawa’s Patrick McCurdy has identified with his MediaToil project, multi-million dollar advertising campaigns by corporations have strategically evolved over the years in response to criticisms, with recent efforts targeting “lifestyle rhetoric.”

Enbridge’s recent “Life Takes Energy” campaign directly connects “dinner with dad,” “amazing journeys” and caring for one’s newborn child to oil and gas products.

While not technically wrong, this and other industry campaigns are designed to obscure the ways societies can actually make choices about the types of energy used.

Many of our energy demands can be at least partly met with a substituted combination of solar, wind and geothermal, accompanied by significant investments in public transit infrastructure, energy efficiency and smart grids. Municipalities can be key players in such scenarios, with the powers to amend zoning bylaws, limit urban sprawl via developer levies, approve bike lanes and cycle tracks, and even plant more trees to reduce demands on air conditioning.

There are many alternatives. But you won’t hear such ideas in fossil fuel advertisements.

Fossil Fuel Industry and the Purchase of Political Influence

But the fossil fuel industry invests in much more than public relations campaigns. Lobbying and political donations are also ways industry can leverage its economic capital for political influence.

In Canada fossil fuel companies and associations have lobbied the federal government hundreds of times since they were elected in October 2015.

Major players include Suncor (96 times), CAPP (84 times), Enbridge (66 times), Imperial Oil (62 times), Shell Canada (59 times), TransCanada (39 times), Northern Gateway (38 times) and Kinder Morgan (26 times).

And those are only the communications that we know about.

Under the current iteration of the Lobbying Act, lobbyists only have to log “oral, prearranged” communications, which leaves emails, texts, letters and speaking at a “non-prearranged time” wide open.

Duff Conacher, founder and long-time coordinator of Democracy Watch, says the ongoing federal cash-for-access scandal — in which people paid $1,525 to attend one of 100 Liberal fundraisers in private homes and have the chance to lobby Prime Minister Justin Trudeau and high-ranking cabinet ministers — was almost certainly taken advantage of by fossil fuel executives, even if that fact remains undocumented.

“It’s completely undemocratic and unethical for the government to keep this information secret,” Conacher says.

Fossil fuel companies are some of the largest companies in the country, meaning they have considerable resources to dedicate to toward activities like hiring lobbyists and potentially hosting or attending fundraisers.

Conacher also notes that while corporate donations were banned at the federal level in 2007, it’s still possible that companies use executives, managers, spouses and family members to secretly donate to a party and riding association using corporate money; an Elections Quebec audit identified $12.8 million in likely funnelled donations from corporations to provincial parties between 2006 and 2011.

“We essentially have a system of legalized bribery with our donation system and secret unethical lobbying,” Conacher says. “You put those two together and you’re going to have corruption of the decisions that cabinet ministers make across the country.”

The ‘Revolving Door’ Between Industry and Politics

All of those actions take place from the outside, with lobbyists and executives pushing for change either legally or otherwise.

But industry also has significant influence from the inside of governments.

“We see an easy trafficking between fossil industry players and government agencies: a revolving door between the carbon industry and politics,” Johnson says.

Powerful industry players in Canada have gone on to sit on environmental review panels, lead staff at the ministry of natural resources and lead political campaigns.

The embeddedness of industry players in the upper political echelon can have real world consequence, Johnson says.

“You end up with really soft regulations, really slippery policy language, the giveaways of mineral rights.”

For instance, Janet Annesley, the former head of CAPP and current chief of staff for Natural Resources Canada, has officially met twice with her former employer, CAPP, as well as members of CAPP, including Suncor, Encana and CNRL.

Tracing Fossil Fuel Influence Through Political Cycle

And these three factors — advertising, lobbying and appointments — all achieve maximum influence in our current electoral system.

Imre Szeman, Canada Research Chair in Cultural Studies and co-director of the University of Alberta’s Petrocultures research cluster, says that for him, the approvals of the Trans Mountain and Line 3 pipelines are an outcome of Trudeau’s political calculation.

The pipelines, he said, go hand in hand with the government’s controversial backtracking on electoral reform.

“We operate by means of a government form that was established in the 18th century: post-monarchy, constitutional democracies that operate on a four-year electoral cycle,” Szeman says.

“Once again, we have a situation where governments are more concerned with their own electoral possibilities than making true, long-term decisions about what they’re going to do.”

Entrenched, powerful interests greatly benefit from a system in which politicians must think very short-term in scope.

Fossil fuel companies generate a significant amount of GDP, exports, capital investments, jobs and government revenues, which are good selling points for a government that must have numbers to show come election time.

Malm says the obvious first step to managing climate change — let alone solving it — is to put an end to any expansion of fossil fuel infrastructure. Others have argued the same.

But political parties want to win elections. And fossil fuel companies will do everything they can to exploit that fact, in desperate attempt to maximize profits from huge capital investments in an increasingly carbon-constrained world.

It’s an extremely dangerous combo.

“When you have a very powerful industry that’s important to the GDP, it’s going to have major effects on what the government does,” Szeman concludes.

“This is a matter of social survival for all of us in the long run.”

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The B.C. government has refused to exercise its authority to order a provincial environmental assessment of the Kinder Morgan Trans Mountain pipeline and tanker project, instead opting to rely on a report produced by the federal National Energy Board (NEB) that recommended approval of the project.

This means the province’s decision on the project — which would triple the amount of oil shipped through Vancouver — will be made using a Harper-era assessment heavily criticized for having no cross-examination of evidence and failing to assess cumulative effects, marine oil spills and greenhouse gas emissions.

“This is a government that say they’re standing up for British Columbians and when they had a chance legally to protect British Columbians with a made-in-B.C. environmental assessment they passed the buck, accepted Stephen Harper’s process and let down British Columbians,” said George Heyman, the NDP’s environment critic.

The federal government has to decide whether to approve the project by Dec. 19 — but the province also has to make its own decision on whether to grant an environmental assessment certificate.

In May, B.C. Environment Minister Mary Polak said that even if the company met the conditions the National Energy Board placed on the project, the project would still fall short of the five requirements B.C. put in place for its approval of any pipeline project.

“We still have a long way to go with respect to marine spill preparedness and response,” Polak said. “There is obviously significant work that needs to be done with First Nations.”

Which is why it’s so puzzling that, when given the opportunity to conduct its own environmental assessment of the project, the province opted to go with a federal process that’s widely viewed as deficient.

Supreme Court Ruled B.C. Has to Make Its Own Decisions

The province first tried to hand over responsibility for the environmental assessment in June 2010, when it signed an “equivalency agreement” with the National Energy Board.

That meant the province would accept federal environmental assessment reports as its own for five major projects, including the Enbridge Northern Gateway pipeline and the Kinder Morgan Trans Mountain pipeline.

It was that abdication of responsibility that resulted in a decision by the B.C. Supreme Court in January, which found the B.C. government “breached the honour of the Crown by failing to consult” with Coastal First Nations for Enbridge Northern Gateway.

Essentially the ruling found that the province could not hand off its responsibility for environmental assessment.

“The decision of the Supreme Court is very clear that the province should stand on guard for the interests of the province in the federal review process and that it failed to do that in Northern Gateway,” said Chris Tollefson, executive director of the Pacific Centre for Environmental Law & Litigation.

In order to comply with the court ruling, B.C.’s Environmental Assessment Office had to make an explicit decision of whether to do its own assessment or to accept the National Energy Board assessment as sufficient for Kinder Morgan’s oil export proposal to Vancouver.

In a letter sent to Kinder Morgan on March 17, Kevin Jardine, the executive director of the Environmental Assessment Office, noted it would “accept the NEB report as the assessment report,” only conducting further discussions with First Nations to fulfill duties to consult and accommodate.

That letter was sent only two months after the province reiterated its opposition to the Trans Mountain pipeline project in its final argument to the National Energy Board, mostly due to the proponent’s failure to submit a detailed oil spill prevention and response strategy.

The province’s final argument reiterated the province’s “five requirements” for heavy oil pipelines, the first of which is “successful completion of the environmental review process.”

Several thousand citizens marched in Vancouver on Nov. 19th to protest the Kinder Morgan Trans Mountain pipeline. Credit: Union of B.C. Indian Chiefs.

Provincial Environmental Assessment Could Address Gaps

Tollefson said he was “expecting and hoping” the province would embark on a proper consultation and assessment of its own.

“The province could certainly identify areas where the proposal is deficient and where steps need to be taken to fix problems,” he said. “It could certainly quite legitimately under its constitutional powers insist on those issues being addressed.”

To be sure, the province wouldn’t be able to simply veto the project even if its Environmental Assessment Office produced a report that advised not issuing a project certificate.

But the province has a variety of constitutionally recognized interests at stake, Tollefson says.

The judge in the Coastal First Nations case noted it's important for the province to balance economic and environmental interests, and that it “would be best served by a process that provided it with the tools to complete a thorough evaluation and review it before making the decision that will impact the province.”

How BC Quietly Accepted the Harper-Era Federal Review of #KinderMorgan https://t.co/YCAPWO3swW #bcpoli #cdnpoli @christyclarkbc @maryforbc

— DeSmog Canada (@DeSmogCanada) November 21, 2016

Kai Nagata, communications director at democracy group Dogwood, suspects that the province’s consultation process is providing Premier Christy Clark a “political buffer” between the federal approval — required on or before Dec. 19 — and the provincial election on May 9, 2017.

“Dropping a pipeline approval … into the provincial election campaign would destabilize the picture politically,” he says.

“This review would give the provincial government political cover so they don’t have to take a position on the project and can simply say ‘let’s wait for the review to do its work and take its course and we will evaluate our five conditions based on all the evidence on the table so far after the election.’ ”

B.C. has two clear options going forward.

The first is to maintain the current strategy, which relies on the federal assessment of the project.

Even that won’t likely help the Trans Mountain pipeline get built, according to Tollefson, who predicts that if approved under the current rules, the pipeline will be held up in litigation for a “long period of time” and the proposal will never earn the social licence it would require.

The other option is for the provincial government to order a robust review that considers the science and is co-led by First Nations.

Nagata says such an assessment must also offer the avenue to say ‘no,’ something that hasn’t seriously been an option for pipeline proposals up until this point.

Image: B.C. Environment Minister Mary Polak and B.C. Premier Christy Clark, Province of B.C.

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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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Dear Will and Kate,

Welcome to beautiful British Columbia!

You are getting a pretty epic tour this week — from Victoria and Vancouver to Bella Bella (sorry about the rain) and Haida Gwaii. All of us watching the photo-ops are pretty jelly to be honest.

Here’s the thing though: I’ve noticed you’re hearing plenty of platitudes about “protecting the environment” from our good-looking leaders, B.C. Premier Christy Clark and Prime Minister Justin Trudeau.

I know you’re smart people, so I don’t want you to be fooled by their looks — or their words.

Don’t get me wrong: B.C. truly is a glorious place — the type of place you can fly over in a seaplane and easily think the wilderness will never end.

But it’s also one of the world’s last frontiers and the race is on to cut down our old-growth forests, to send more oil tankers into our ports, to build natural gas plants in our salmon estuaries and to flood our rivers for megadams.

Here are a few things I thought you ought to know about B.C. (and which I’m doubtful you’ll hear from Justin or Christy).

1) Despite all the photo ops about adding the Great Bear Rainforest to the Queen's Commonwealth Canopy, I’m sure you’d like to know that Prime Minister Justin Trudeau is dragging his heels on banning oil tankers from the Great Bear Rainforest.

Prince William, I heard your speech in Bella Bella and I couldn’t agree more with what you had to say about nature being “fundamental to the health of our societies.”

Prince William and Catherine, the Duchess of Cambridge, visit the Great Bear Rainforest which was dedicated to the Queen's Commonwealth conservation program during the royal visit. Photo: Province of B.C.

That’s why it’s so ridiculous that First Nations are still fighting Enbridge’s Northern Gateway pipeline proposal, which would introduce hundreds of oil tankers a year loaded with oilsands bitumen to the Great Bear Rainforest.

Not only are the oilsands incredibly polluting to begin with, but a bitumen spill in the ocean would be virtually impossible to clean up.

This year, Enbridge Northern Gateway’s approval was overturned in court due to the federal government’s lack of consultation with First Nations.

Plus, during the election, Trudeau made an explicit promise to ban oil tankers in the Great Bear Rainforest. Not only has he not done that, but he’s also expected to approve the Kinder Morgan Trans Mountain oilsands pipeline to Vancouver by the end of the year, despite being opposed by local municipalities and First Nations.

Now that you’ve seen what’s at risk, seems worth writing home to Granny about, doesn’t it?

2) Canada (and the Crown) is breaking its promise to First Nations.

Kate, I saw that smile on your face while you watched the dancers in Bella Bella. First Nations have been living off the bounty of this coast since time immemorial.

And when the English and the French came along, many First Nations agreed to share their lands in an act of good faith.

During the treaty-making process, First Nations entered a relationship with the crown on an equal footing.

The Royals in Bella Bella, B.C. Photo: Province of B.C.

But that agreement has since “been tainted and soured” Assembly of First Nations national chief Perry Bellegarde told The Guardian.

“We didn’t basically share all the land and resource wealth in Canada to perpetuate poverty and colonisation and genocide,” Bellegarde said.

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, made headlines around the world this week for refusing to attend a ceremony with you at Government House on Monday night, calling it a “public charade.”

Your itinerary is pretty insane, so I doubt you had time to read about why he wasn’t there, so let me bring you up to speed.

What Prince William & Kate Really Need to Know About B.C. https://t.co/8Vsk6RtkOE #FirstNations #PNWLNG #Enbridge #SiteC #bcpoli #cdnpoli

— DeSmog Canada (@DeSmogCanada) September 28, 2016

Phillip and the chiefs of the 115 First Nations his organization represents decided it would not be appropriate “to feed into that public illusion that everything is okay.”

He noted the crushing poverty faced by indigenous communities, missing and murdered women and the number of children in government care, as just a few examples of how everything is very not okay.

Phillip was to hand a symbolic ring of reconciliation to you, Prince William, and invite you to affix it on a special ceremonial staff, called the Black Rod.

“These events are tightly scripted. There is no speaking,” Phillip told the Victoria Times Colonist. “Had I been accorded the opportunity to speak to [the royal family] and express a different view things might be different. But that wouldn’t serve the illusion of peace and harmony.”

May we suggest you take the time to give the Grand Chief an ole ring-a-ding once you get home?

Prince William and Kate visit the Great Bear Rainforest. Photo: Province of B.C.

3) As you tour our province’s gorgeous environment with your tagalong Premier Clark, we thought you’d like to know that at this very moment the Peace River valley in northern B.C. is being destroyed for a megadam authorized by the provincial and federal governments.

The Site C dam — still being challenged in court by First Nations — would flood more than 100 kilometres of river valley, including farmland and First Nations hunting and fishing areas. Worse, the chair of the government’s own panel says it isn’t needed.

So why is Clark pushing ahead with its construction? Inertia basically. She has a story and she’s sticking to it. And jobs, right? Jobs funded with our own taxpayer dollars (to the tune of $9 billion), but jobs nonetheless.

4) Speaking of people who’ve been sharing your photo ops, your new buddy Justin Trudeau just approved a giant natural gas export terminal in critical salmon habitat on Tuesday.

If it gets built, it could be the single largest emitter of greenhouse gases in Canada. And it makes meeting our climate targets virtually impossible. We don’t think Prince Charles would be too pleased about that.

While Trudeau has been talking a good talk on the global stage, he’s yet to walk the walk at home.

British Columbia is already facing intense wild fire seasons and our forests have been ravaged by pine beetles because our winters don’t get cold enough any more.

So for all the beautiful photo ops, please know the truth is much more complicated.

You, like millions of visitors a year, come here to see what B.C. is known for: untarnished nature, wild beaches, free-flowing rivers, intact indigenous cultures. Let’s keep it that way.  

Image: Province of B.C. via Flickr

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“First Nations save us again.”

That was the message of a text I received from a friend after they heard of the Federal Court of Appeal’s decision to overturn the Harper government’s approval of the Enbridge Northern Gateway pipeline.

And it’s true: First Nations have borne the social burden once again of calling out undemocratic, law-breaking government actions that threaten the climate, the environment and human health.

Alongside the many First Nations that brought a legal challenge against the Northern Gateway pipeline approval were several environmental organizations that brought attention to the ways the project threatened endangered species and marine life.

But it was the former government’s tragic lack of First Nations consultation that caught the court’s attention.

In their ruling, two of the three judges said the government failed to meet even a basic standard for First Nations consultation. In fact, the government all but closed their eyes and stopped up their ears to some of the most basic aspects of First Nations existence.

From the ruling: “The inadequacies — more than just a handful and more than mere imperfections — left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.”

“Many impacts of the project — some identified in the Report of the Joint Review Panel, some not — were left undisclosed, undiscussed and unconsidered.”

“Ignored.” “Undiscussed and unconsidered.”

It’s extraordinary that some of the most disenfranchised participants in this system were left to fight a major energy infrastructure project — and the undemocratic process that granted its approval — in the courts.

In fact, the mere existence of First Nations people in British Columbia is extraordinary.

That these unique traditional cultures and ways of life have survived the onslaught of Western, industrial, imperial and racist governments and policies in this province is extraordinary.

That they have done so mostly outside a treaty framework, and upon almost entirely unceeded territories, is extraordinary.

That these communities, these individuals, have preserved a cherished, land-based way of life that seems in part the antidote to the poisonous, destructive and extractive impulse of modernity — all while fighting precedent-setting court cases to maintain their right to that life — is extraordinary.

And let’s not forget: the very way First Nations rights and title is enshrined within our constitution is extraordinary.

And the fact that today, in the face of a government that has systematically neglected, silenced and oppressed them, these First Nations have secured a legal victory that will likely benefit us all, is extraordinary.

Legal commentators are already pointing to how this ruling exposes the fundamental inadequacy of our pipeline review process. That is the very same process currently in place for the Kinder Morgan Trans Mountain pipeline — another project local First Nations have been forced to fight in court.

The same failures and inadequacies of consultation have also plague this province’s approval of fracking operations, industrial water use, species at risk management, environmental assessments and the oversight of a nascent LNG export empire.

Treaty 8 First Nations in the Peace Region have also been forced to take the province to court over violations of treaty rights in the face of the destructive Site C dam. There are more violations occurring there than local First Nations have the time or capacity to legally challenge.

Legal battles like the one won for B.C. First Nations today are costly. They drain First Nations of the energies and resources that would otherwise be invested in their communities.

The decision for the Enbridge Northern Gateway pipeline now rests in the hands of the federal government and Prime Minister Trudeau, who recently signed Canada onto the UN Declaration on the Rights of Indigenous Peoples.

Let’s hope, moving forward, First Nations consultation as well as all constitutional and treaty rights, will be made part of this government’s decision-making process rather than a shameful afterthought.

Heaven knows it will benefit us all.

Image: Pipeline opponents rally against the Enbridge Northern Gateway pipeline in Vancouver. Photo: Zack Embree

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Enbridge will have to secure an environmental assessment certificate from the B.C. government if it wants to proceed with its Northern Gateway oil pipeline according to an order issued by B.C.’s Environmental Assessment Office on Friday.   Early on in the Northern Gateway process, the B.C. government signed an “equivalency agreement” with the federal government, giving Ottawa the responsibility for the environmental assessment.   However, a Supreme Court of B.C. decision this January found that the B.C. government acted improperly and that the province must still make its own decision about issuing an environmental assessment certificate.

In a letter to Enbridge posted last week, B.C.’s Environmental Assessment Office states that it will accept the National Energy Board’s (NEB) joint review panel report as the assessment report, but it will carry out its own consultation with Aboriginal groups — if and when Enbridge indicates it’s ready to proceed (it’s clear Enbridge must make a move here).

“The big open questions are what does consultation look like and how will that impact their decision?” said Eugene Kung, staff counsel at West Coast Environmental Law. “Are they just going through the motions to issue a certificate?”   The B.C. government formally opposed the project in its final argument to the NEB panel.   “How do they incorporate their own previously stated opposition to the project?” Kung asked. “It seems hard to imagine them issuing a certificate given their previously stated positions.”   The province’s letter states that no decisions will be made on any permit applications related to the construction or operation of Northern Gateway until a decision on the environmental assessment certificate has been made.   That calls into question the project’s existing federal environmental assessment certificate, which has several conditions attached including one that stipulates that Northern Gateway must have proven firm supply contracts accounting for 60 per cent of capacity by July 1, 2016. Further to that, Northern Gateway’s certificate will expire by December 31, 2016, unless it begins construction.     While the Enbridge Northern Gateway project is widely seen as dead — with Prime Minister Justin Trudeau promising to legislate a ban on oil tankers on B.C.’s north coast — the latest news raises questions about Kinder Morgan’s Trans Mountain pipeline proposal.   The province of B.C. signed the same equivalency agreement for the review of Trans Mountain, but will now need to make a decision on issuing its own provincial environmental assessment certificate and needs to consult with affected First Nations on that decision.   The province also opposed the Trans Mountain project in its final argument to the joint review panel.   Enbridge Northern Gateway would transport 525,000 barrels of bitumen per day from Alberta to Kitimat, where it would be loaded onto tankers bound for Asia.   Kinder Morgan’s Trans Mountain expansion would triple the capacity of that pipeline, allowing for the transport of 590,000 barrels of oil per day from Alberta to Burnaby, where it would also be loaded onto tankers bound primarily for Asia.

Image: Mack Male/Flickr

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At an estimated 2,700 litres, the bunker fuel spill in English Bay was relatively small — yet the stakes of that spill couldn’t be much higher.

With Enbridge and Kinder Morgan both hoping to build oil pipelines to B.C., which would significantly increase oil tanker traffic in the province’s inside coastal waters, a dramatically mishandled marine oil spill raises all sorts of questions — questions the federal government does not appear well-positioned to answer, despite its aggressive push for West Coast oil exports.

“Obviously, from the oil industry’s perspective, you couldn’t have picked a worse place to have an oil spill,” Jim Stanford, economist at Unifor and founder of the Progressive Economics Forum, told DeSmog Canada.

While the federal government insisted its response was “world-class,” a former commander of the shuttered Kits Coast Guard station blamed the six-hour delay in even deploying a boom to contain the oil on the closure of that station in 2013 — a move that is reported to have saved the federal government at estimated $700,000 a year.

The English Bay spill, beyond being a systemic failure, has been a total PR disaster.

“It’s a very dramatic indication of the failure of our environmental safeguards around transportation and energy,” Stanford said.

Will The Real Energy Superpower Please Stand Up

Canada’s aggressive “energy superpower” push — a Harper government priority that has been accompanied by the elimination of environmental laws— has drawn criticism from all corners, and not just domestically.

The Obama administration indicated the fate of TransCanada’s Keystone XL pipeline, which has been caught in a protracted review process for six years, was intrinsically tied up with the oilsands’ growing greenhouse gas emissions. The European Union came close to labelling oilsand’s crude as high-carbon due to its energy-intensive extraction and refining process (that move was thwarted by intensive lobbying by the Canadian and Albertan governments). 

Back at home, the undercutting of environmental reviews and elimination of environmental laws has resulting in growing citizen concern about Canada’s oilsands development and record on climate change, as demonstrated by recent climate and pipeline protests.

Martha Hall Findlay, former Liberal MP and executive fellow at the University of Calgary’s School of Public Policy, says the federal government has blown the environmental file.

“You don’t poke people in the eye when the rest of the world is saying there are significant environmental concerns,” she said.

“I think it’s smart to acknowledge that and address it. Our current federal government has done the opposite in many ways. And, importantly, have been seen to be doing the opposite. There’s no doubt in anyone’s mind that it was a factor in Obama’s decision on Keystone.”

With Friends Like These Who Needs Protesters?

What’s become clearer is that such a myopic approach to policymaking has created difficult conditions for the extractive industries.

“The Harper government’s bloody-mindedness on environmental issues has actually done more to bog down large resource projects than anything the environmental movement could have done,” Rick Smith, executive director of the Broadbent Institute, said.

“What it’s done is make First Nations, local communities and environmentalists feel marginalized and angry.”

Keith Stewart of Greenpeace Canada echoed the sentiment, saying complaints are now likely to emerge from beyond the protest crowd: “If the government won’t listen to Canadians about it, they’re soon going to have to listen to our would-be customers.”

While there’s some significant progress occurring on the provincial front on the climate change file, that can’t make up for the lack of federal leadership.

“People outside Canada don’t necessarily understand the nuances of the different levels of governance within the country,” notes Anthony Heyes, University of Ottawa economics professor and Canada Research Chair in Environmental Economics. “Outsiders see it as a country that has a relatively disappointing record in not just greenhouse gas emissions in an absolute way, but also against international commitments..”

Hall Findlay added that if the federal government had followed the lead of the provinces, Keystone XL might have been approved. But at this point, piecemeal climate commitments from the provinces might not be enough.

An associated problem is the fact that Harper bet the economy on the success of the oil and gas sector (Thomas Walkom put it nicely in a piece for the Toronto Star: “Harper has his own unspoken industrial policy. It can be summed up in a word: pipelines.”)

Stanford suggests that such infatuation has come at the cost of other industries — manufacturing, tourism, transportation — due to the high dollar being pegged to an extremely volatile resource.

“You would have needed a government with the foresight and courage to actively push against that in order to protect our environment, obviously, but also our economic diversity and long-run prosperity instead of riding the bandwagon as they did,” he said.

Stanford notes that the employment rate is currently as low as it was in the summer of 2009, the worst moment of the global recession. That’s got to sting for a party that advertises its leader as a trained economist — not an elitist lawyer or under-qualified teacher.

Ultimately, Harper’s mismanagement of the energy and environment file — and most importantly the nexus of those two things — might be more of a gift than a burden for those who want to see progress on climate change.

“In a way, the fact that Stephen Harper has burned any semblance of federal environmental regulation to the ground is an opportunity for Canadians to rebuild something at the federal level that’s new, truly modern and forward thinking,” Smith says.

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The release of a University of Victoria study calling for updates to Canadian charitable law created quite a stir last week.

The study, prepared for DeSmog Canada, was covered by the Toronto Star, Vancouver Sun, Victoria Times Colonist, Canadian Press, Macleans, The Tyee, Yahoo! News and CFAX.

The report called for the Canada Revenue Agency (CRA) to clarify rules around “political activities” — defined as any activity that seeks to change, oppose or retain laws or policies — and to provide a more generous limit on allowable policy advocacy in line with other common law jurisdictions such as Australia and New Zealand. It also called for the creation of a politically independent charities commission to remove the potential for political interference in audits.

The findings were raised in the House of Commons by Victoria NDP MP Murray Rankin, who stated the report “analyzes the alarming lack of clarity in the rules governing political activities for charities.”

Tim Gray, executive director of Environmental Defence, said the recommendations put “what’s going on in Canada in the context of what’s going on in other common law and western countries … It gives a sense of how far Canada is behind on these things.”

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Environmental Defence was one of 18 Canadian charities that called on the country’s politicians to enhance the ability for charities to engage in public policy debates earlier this month.

“The lack of a level playing field between business and citizens around public policy is particularly evident in the debate around climate and tar sands,” Gray told DeSmog Canada. “There’s massive spending going on by the oil sector to influence public policy and every dollar they spend on lobbyists in Ottawa or on television ads, they deduct from their gross income and therefore reduce the income tax that they pay to build roads and run hospitals.”[view:in_this_series=block_1]

Citizens who donate money to a charity only receive a 17 per cent tax benefit and charities are limited to spending 10 per cent of their resources on policy advocacy work, described as “political activity” by the CRA.

Fifity-two charities have been audited for their “political activities” under a $13.4 million audit program launched by the federal government in the 2012 budget.

“It’s already unfair and the rhetoric that’s out there right now is to say that that level of unfairness should be enhanced,” Gray said. “It would be a huge move to favouring involvement by corporations in public policy at the expense of citizens.”

Gray also said citizens are confused by the current talk around “political activities,” which many assume to mean “partisan activities,” which charities are banned from taking part in.

Bill Schaper, director of public policy and community engagement for Imagine Canada — which advocates for the charitable sector — said his group has been hearing more and more about re-thinking how we define charity over the last couple of years.

“It’s something that’s been percolating,” Schaper told DeSmog Canada.

But he also noted that there are risks associated with opening up charitable law for major changes. National Post columnist Andrew Coyne, for instance, has argued that we should get rid of charitable status altogether.

“As much as the grey zones are causing issues right now, sometimes grey zones are better than too much clarity because you might not like the clarity you get,” Schaper said.  

He noted that the charitable sector can do a better job of educating itself in terms of what constitutes “political activity” and said there would need to be much more discussion before Imagine Canada would push for specific changes to the law.

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A report released today by the University of Victoria’s Environmental Law Centre calls for sweeping reform of Canadian charitable law in line with other jurisdictions such as the U.S., Australia, New Zealand and England.

Current rules around “political activity” — defined by the Canada Revenue Agency (CRA) as any activity that seeks to change, oppose or retain laws or policies — are confusing and create an “intolerable state of uncertainty,” the report says.

“This has created a confused and anxious charitable sector and detracts from them carrying out their important work,” Calvin Sandborn, legal director of the Environmental Law Centre, said.

The report — prepared for DeSmog Canada — comes as 52 charities are being targeted in a $13.4 million audit program launched by the federal government in 2012 to determine whether any are violating a rule that limits spending on political activities to 10 per cent of resources. Those charities include Environmental Defence, the David Suzuki Foundation, Canada Without Poverty, Ecology Action Centre and Equiterre.

Australia and New Zealand, also common law jurisdictions, have modernized their laws in recent years to allow charities to conduct more policy advocacy in carrying out their missions.

The report, Tax Audits of Environmental Groups: The Pressing Need for Law Reform, calls for Canada to establish clearer rules about what constitutes “political activity” and provide a more generous limit on allowable “political activity.”

Canada’s Charities Law Urgently Needs Update: New @ELC_UVic report http://t.co/EUj828Va94 #UpdateCharitiesLaw #cdnpoli

— DeSmog Canada (@DeSmogCanada) March 25, 2015

“U.S. charity regulation is superior to current Canadian law because it is less vague and more respectful of the value that charities bring to public policy debates,” the report states.

Many European countries place no limit at all on a charity’s political activities.

Earlier this month, 18 Canadian charities called on the country’s politicians to enhance the ability for charities to engage in public policy debates.

“Our society has evolved and our legislation hasn’t,” said Eric Hebert Daly, executive director of the Canadian Parks and Wilderness Society, a group that signed on to the letter.

The new University of Victoria report calls on Canada to modernize the definition of what qualifies as charitable to rectify instances such as the CRA’s ruling that Oxfam can not have a charitable goal of “prevention of poverty.”

“In modern society the law should recognize that a poverty-relief organization can often relieve poverty more effectively by lobbying for affordable housing laws than by operating a soup kitchen,” the report says.

In October 2014, the Broadbent Institute released a report, which raised questions about whether the recent audits have been targeted at charities critical of the Harper government. The report said several right-leaning charities are reporting zero “political” activity while engaging in work that appears to meet the CRA’s definition.

There is a direct structural chain of command from the Minister of National Revenue to the charities directorate (which audits charities), the University of Victoria report notes before calling for the removal of any potential for political interference by establishing a politically independent Charities Commission like the one in England and Wales.

“Regardless of whether the audits are targeted or not, an obvious way to address this issue would be to reform the law to eliminate the potential for political control over CRA audits,” the report reads.  “This has been done in other jurisdictions.”

“The perception that audits may be targeted at charities critical of government policies creates a chilling effect,” the report says — adding that with such vague rules, charities can end up spending an “inordinate amount of energy and resources protecting themselves from an audit.”

The report also notes the contrasting treatment of business and charities under the Income Tax Act:

Since businesses can deduct advertising expenses from their income, they can lobby the public through advertising without any imposed statutory restrictions. A recent example has been the omnipresence of the multimillion-dollar [Enbridge] Northern Gateway radio, television, internet and newspaper ad campaign favouring the project. All of these advertisements would presumably be tax deductible and therefore subsidized by general taxpayers.

In contrast to companies’ tax-deductible political advertising campaigns, charities must carefully ensure that all activities of a political nature are kept within the 10 per cent limit. This contrasting treatment of business and charities under the Income Tax Act has the effect of encouraging businesses to take political action in support of commercial and private interests — while hindering the counterbalancing efforts of charities working to protect public interests.

The report provides the example of cigarette companies fighting smoking laws to defend profits while cancer societies advocated smoking laws for the public good (to prevent cancer). The “political activities” of the cigarette companies would have been tax deductible, whereas the charities advocating tougher smoking laws would have had to follow the ten per cent rule.

“This impairment of charities’ pursuit of the public interest has been magnified by the recent spate of audits and their repercussions on the charitable sector,” the report says.

Policy advocacy by Canadian charities has resulted in measures addressing acid rain, regulations on smoking, laws against drunk driving and regulations on toxic chemicals.

Canadian charities and non-profit organizations account for more than eight per cent of Canada’s GDP. As of the end of 2013, there were more than 86,000 registered charities in Canada.

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In spite of the ink that has been devoted to arguing about how many jobs Enbridge Northern Gateway is promising to Kitimat residents, one of the most compelling bits of evidence may be an update to a community planning document produced by the District of Kitimat in 2008. 

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