The National Energy Board (NEB), the federal regulator responsible for inter-provincial pipelines, appears to have jumped the gun on TransCanada’s Energy East pipeline proposal by releasing a 'list of issues' to be considered for the project's approval, before the company submitted an official application for the project. If approved, Energy East will transport 1.1 million barrels of oil and oilsands bitumen 4,600 kilometres across the country from Hardisty, Alberta to Saint John, New Brunswick each day.

“It is highly irregular and, as far as I know, unprecedented," Jason MacLean, an assistant professor of law, and specialist in environmental law, at Lakehead University, said. "Releasing the list of issues in advance is acting impermissibly in favour of the proponent of the pipeline project.”

MacLean is also acting counsel for a legal challenge announced Thursday against the NEB as a result of the 'list of issues' release. In the past the NEB has waited for pipeline companies to apply for projects before deciding what issues are relevant to their approval.

“The NEB is acting in bad faith and demonstrating how biased it is in favour of the oil industry by tailoring the list of issues to be considered to the company’s advantage,” Andrea Harden-Donahue, Energy and Climate Justice Campaigner with the Council of Canadians, said. The Council of Canadians – one of Canada’s largest civil society organizations – is spearheading the legal challenge.

The legal challenge states the NEB rigged the list of issues to favour TransCanada and the oil industry. According to the suit, issues disadvantageous to the project, such as impacts to climate change and First Nations living downstream from the oilsands, are absent from the list.

“This raises serious concerns of how under the Harper government the NEB, a federal body with a history of ruling in favour of industry, has been given more authority to limit the public’s voice in major pipeline decisions,” Harden-Donahue told DeSmog Canada. 

The NEB claims it “does not have regulatory authority over upstream or downstream activities associated with the development of oilsands, or the end use of the oil to be transported by the Project. Therefore, the Board will not consider these issues.”

MacLean argues the NEB's position is "hypocritical" since the board will consider upstream (how it affects the oil industry) and downstream (how it affects oil refineries) economic impacts of the Energy East pipeline project.

“It is inconsistent, improper, and to a certain extent, hypocritical to consider the upstream and downstream economic and commercial impacts of a pipeline – which should definitely be considered – and then ignore the upstream and downstream environmental impacts,” MacLean told DeSmog Canada.

MacLean also points out that by not considering environmental issues connected to pipelines the Board is in contravention of its own mandate. According to the NEB, the Board exists to promote “safety and security, environmental protection and economic efficiency in the Canadian public interest within the mandate set by the Parliament of Canada.”

“It's impossible to square it – that it is not 'in the public interest' to consider the adverse effects of climate change. The relationship between increased greenhouse gas emissions and climate change is quite clear,” MacLean said from Thunder Bay, Ontario.

When polled last November 84 per cent of Canadians said they wanted action on climate change. It is estimated the greenhouse gas emissions associated with the Energy East pipeline project will be the equivalent of Ontario deciding to maintain all their coal-fired power plants instead of shutting them down. Ontario’s successful phase out of coal plants has been heralded as the single most significant GHG emissions reduction initiative in North America.

“Canadians believe the federal government and its federal pipeline regulator should act neutrally and in the public interest, not govern for special interests,” MacLean told DeSmog Canada.

The Federal Court of Appeal will decide after the NEB and federal government respond to the legal challenge whether the it will move through to appeals court. This is the second legal challenge in less than year against an NEB list of issues for a pipeline project. ForestEthics Advocacy also has an ongoing case against the Line 9 pipeline project.

ForestEthics argues limiting the Line 9 issues the public can comment on and restricting members of the public from participating in the decision making process is a violation of freedom of expression under the Canadian Charter of Rights and Freedoms. The NEB approved Line 9 last March. 

Image Credit: University of Alberta

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The Chippewas of the Thames First Nation have launched a legal challenge against the National Energy Board’s (NEB) decision to approve Enbridge’s Line 9 oil pipeline project in southern Ontario and southern Quebec. The NEB – Canada’s independent energy regulator – approved the project to ship 300,000 barrels a day of oil and oilsands bitumen last month with soft conditions.

“This 40-year old pipe is subject to corrosion and heavy crude is going to be shipped through in higher volumes. We feel that this raises the possibility of new impacts beyond the right-of-way and we are concerned about our water resources and the environment,” says Chief Joe Miskokomon of the Chippewas of the Thames or Deshkaan Ziibing* in the Anishinaabe (Ojibwe) language.

Deshkaan Ziibing is one of fourteen Anishinaabe, Haudenosaunee (Six Nations), and Lenape (Delaware) First Nations living along or near the 38-year old Line 9 pipeline. DeSmog Canada reported last November that the federal government’s failure to fulfill its legal duty to consult with all of these First Nations could land the federal government and the Line 9 project in court.

The legal challenge was filed last Monday with the Federal Court of Appeal on the grounds the NEB approved Line 9 without the federal government “conducting any meaningful consultation” with Deshkaan Ziibing.

“The federal government has to consider our treaty and aboriginal rights enshrined within the constitution,” states Miskokomon in a press release. 

Federal Government Has Legal Duty to Consult on Line 9

“We still need to be consulted and we are willing to listen,” Myeengun Henry, a band councilor with Deshkaan Ziibing said in an interview with DeSmog Canada the night of Line 9’s approval.

The federal government did not attempt to consult any of the First Nations along the route of Line 9.

Both the Canadian Constitution and the Supreme Court have made clear the federal government’s legal duty to consult indigenous peoples in Canada (First Nations, Metis, Inuit) if a decision under contemplation may have adverse impacts on their constitutionally-protected indigenous and treaty rights:

“The honour of the Crown requires that these (indigenous) rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests” – Supreme Court’s ruling in Haida First Nation v. British Columbia (2004).

Proposed Changes to Line 9 Triggers the Duty to Consult

The NEB approved changes for Line 9 – increasing the capacity of the pipeline by 20 per cent to transport oilsands bitumen – carry with them new risks and new potential impacts on Deshkaan Ziibing and other First Nations in Ontario and Quebec. According to a pipeline safety expert who spoke with DeSmog last October the odds of a Line 9 rupture, given proposed changes, are 90 per cent.

“This is not an issue of inadequate or improper consultation with First Nations. No consultation by the federal government has taken place whatsoever,” lawyer Scott Smith told DeSmog Canada in an interview last November. Smith represented Deshkaan Ziibing and Aamjiwnaang First Nation in the Line 9 hearings. Deshkaan Ziibing and Aamjiwnaang are both in southwestern Ontario.

The federal government is expected to contest that changes to the pipeline give rise to new potential risks and impacts.

“We are being denied the dialogue to be included in solutions where Aboriginal and treaty rights are impacted by significant economic proposals put forward by industry and backed by the Canadian government,” says Chief Miskokomon. “We are not going away and part of our fate rests with this appeal.”

Deshkaan Ziibing provided evidence during the Line 9 hearings by means of a traditional land use study demonstrating to the NEB that the members of Deshkaan Ziibing still exercise their “aboriginal and treaty rights within the same territory occupied by Line 9.” Hunting, trapping, fishing, and collecting medicinal plants are just some of the traditional practices and rights still exercised by members of Deshkaan Ziibing in the Thames River valley. Line 9 crosses through the river.

Public Challenges Against the Line 9 Project

This is the second legal challenge against the Line 9 project. Last summer ForestEthics Advocacy launched a lawsuit against the federal government’s restrictions on public participation in pipeline project hearings. During the Line 9 hearings, participating citizens were prevented from commenting on the impacts the pipeline would have on climate change and the expansion of the oilsands in Alberta. ForestEthics argues this is a violation of the freedom expression under the Canadian Charter of Rights and Freedoms.

Two Ontario municipalities – Toronto and Whitby – have passed motions demanding the provincial government conduct an environmental assessment of the Line 9 project. The NEB-ordered environmental assessment of Line 9 was only conducted on the pipeline’s pumping stations, not on the pipeline itself. Surprisingly, the assessment failed to take in consideration what would happen if the pipeline ruptured.

*Anishinaabe, Haudenosaunee, and Lenape are the names for the “Ojibwe,” “Six Nations” or “Iroquois,” and “Delaware” in their respective languages. Deshkaan Ziibing is the Anishinaabe name for “Chippewas of the Thames.”

Image Credits: Chief Joe Miskokomon by Greg Plain | Line 9 map from Enbridge

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According to a recent poll commissioned by four environmental groups, nearly two-thirds (64 per cent) of residents in British Columbia oppose Enbridge's plan to transport crude oil through B.C. using the proposed Northern Gateway pipeline and oil tankers.

The hybrid telephone-online poll, conducted by Justason Market Intelligence, found that 50 per cent of B.C. residents strongly oppose the Enbridge proposal, compared to 12 per cent who strongly support it.

The poll was commissioned by Dogwood Initiative, ForestEthics Advocacy, Northwest Institute for Bioregional Research and West Coast Environmental Law. Six hundred adult British Columbians were surveyed from January 13 to January 19, 2014 through random telephone sampling and Justason's online panel.

"When British Columbians actually get the facts about oil tanker and pipeline proposals, their opposition is overwhelming," said Will Horter, executive director of Dogwood Initiative. "Other polls in the past few months have only talked about pipelines, with no mention of the crude oil supertankers that would inevitably come with them."

Image: Oil Tanker Traffic in B.C.: The B.C. Outlook Omnibus / Justason Market Intelligence

This is the first poll released about Enbridge's oil tanker and pipeline proposal since the National Review Board's controversial joint review panel (JRP) report recommended conditional approval of the project in December.

When asked whether they trust the review process, 51 per cent of B.C. residents said they distrust the process, 32 per cent said they trust it, and 17 per cent were unsure.

"These polling results bring home why the Enbridge tanker and pipeline proposal is going nowhere fast — despite the JRP recommendation," said Jessica Clogg of the West Coast Environmental Law Association. "Residents of B.C. continue to withhold 'social licence' for the project, while multiple First Nations lawsuits threaten to derail it and the government of B.C. formally opposed the Enbridge project."

According to the poll, a significant majority of British Columbians (79 per cent) feel that decisions about projects like the Enbridge Northern Gateway proposal should be made with public participation, while only 13 per cent feel that such decisions should be made solely by government.

"British Columbians simply do not accept closed door decision-making and know they deserve a say. Any politicians thinking of cutting a backroom deal do so at their peril," Horter said.

A March 2012 Justason Market Intelligence poll had nearly identical results with 66 per cent of B.C. residents opposing the Enbridge proposal, and 50 per cent strongly opposed.

"For all the millions of dollars Enbridge has spent in advertising over the past two years, opposition to this proposal hasn't budged," said Sven Biggs of ForestEthics Advocacy.

Image Credit: Travis Blanston / Flickr

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Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Image Credit: Heather / Flickr

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