Space-age pipes loom over me, two-pronged fingers jutting straight up at the sky.

They plunge into the earth under our feet, where, like a steampunk Lovecraftian nightmare, the pipes full of carbon dioxide freeze a quarter-million tonnes of deadly arsenic trioxide dust to keep it dormant in perpetuity.

The size of an office building, the test chamber below is the first, and the smallest, of 15; there’s a long way to go before all of the dust is contained.

This is the future of what was for 60 years the crown jewel of Yellowknife, the economic driver of the North, until it finally closed in 2004.

This is just one part of a billion-dollar cleanup that will take another generation, and, even then, require supervision and maintenance forever lest it break down and poison us again.

This is a 900-hectare maze of dusty tailings ponds, yawning open pits, poisoned water, toxic soil and decaying buildings full of arsenic.

This is Giant Mine.

Photos by Matt Jacques.

A lump in the bay

Yellowknife’s history, and its destiny, has always been tied to one mineral or another, even drawing its name from the copper tools preferred by the Yellowknives Dene who inhabit the region. It’s situated where the slow-moving Yellowknife River drains into Great Slave Lake, almost exactly 1,000 km north of Edmonton.

In the early 1930s, what is now Yellowknife was a backwater compared to the nearby Hudson’s Bay Company trading post at Fort Rae. But a young Dene woman named Mary Fishbone would have encountered plenty of white Canadians as they passed through, prospecting or preaching. When she found a lump of shiny rock in the bay, while she was out foraging on her First Nation’s territory, she gave it to her priest — or, as some versions of the story have it, traded it to an unscrupulous prospector for a stovepipe. Mary Fishbone’s name is forgotten in the history of the mines, except by her descendants, who keep photos of her on their walls and readily tell her story to visitors.

The story is possibly apocryphal; searches in the NWT Archives and the Geological Survey of Canada came up empty, (“there’s a story like this for every find,” an archivist tells me over the phone) though that alone doesn’t mean it’s untrue, and there had been some gold discovered by a prospector near the turn of the century. But regardless of who initially discovered the gold, the ensuing years would be devastating to the Yellowknives Dene.

By 1934, prospectors had arrived and found more gold in the region, opened the Burwash mine across Yellowknife Bay, and things began moving quickly. On the south end of Yellowknife, overlooking Great Slave Lake, Con Mine poured its first gold brick in 1938. The same deposit would soon give rise to three other new mines: north of the city, the Ptarmigan and Tom mines. Right next to Con, the Negus mine operated for 13 years before its neighbour acquired it.

The population swelled, and when men returned from the war in 1944, the extent of the potential development at Giant Mine ramped the excitement up further. Digging through the bedrock for gold, the mines themselves became the bedrock of the city.

But there was one huge catch to all the feverish development, which wouldn’t become obvious until at least one child had died and many more been sickened by the air and water around them.

Giant consequences

The gold found at Giant Mine is microscopic, contained in rocks that need to be physically crushed then heated to extremely high temperatures to free the tiny specks of gold. But there isn’t just gold in the rock — there’s another notable mineral lurking inside, and that’s where the billion-dollar problem began.

Arsenopyrite is a mineral often found alongside gold, silver, lead and other valuable minerals. It’s common across the Yellowknife landscape, folded into the bedrock. In crystalline form, it’s a beautiful silver or white mineral. Worn down, it looks like any other rock. And when it’s crushed, melted and blasted into the sky, the arsenic trioxide dust, as fine as baby powder, is deadly.

The Materials Safety Data Sheet for arsenic trioxide classifies it as a confirmed carcinogen that may cause damage to blood, kidneys, liver, the cardiovascular system and the central nervous system, and cautions, “Keep locked up. Do not ingest. Do not breathe dust. Wear suitable protective clothing. If ingested, seek medical advice immediately.” Until 1958, Giant Mine was pumping as much as 7,400 kg of arsenic trioxide dust into the air every day, and as the mine produced more and more gold, the byproduct floated through the sky and precipitated onto the earth, coating the landscape and poisoning the water.

Yellowknife Bay used to be a prime fishing spot, and its surrounding lands used for hunting, trapping and foraging for berries and medicines like Labrador tea or spruce gum. Baker Creek was reserved for hunting moose and picking the blueberries that carpeted the land. Today, after 70 years of heavy industrial use, the creek is only just starting to recover, with grayling spawning in its water.

In 1951, a toddler died from eating snow.

The toddler was a relative of Elder Muriel Betsina, who today lives in Ndilo, a Yellowknives Dene community across Back Bay from Giant Mine. Though she only arrived in Yellowknife in 1962 after she left residential school, she immediately saw the effect the arsenic was having on the community.

“We got so scared,” Betsina recalls. Children were getting rashes from wearing clothes washed in the same lake water that had always been a clean source for the community.

“‘One day all this arsenic will kill you’ — nobody ever explained that to us,” she says.

On the way out of Ndilo from Betsina’s house, I pass K’alemi Dene School, where VICE News’ Hilary Beaumont reported in December that the soil has been tested at nearly three times the safe exposure limit for arsenic. Children play on a fenced Astroturf field.

Meanwhile, researchers from the University of Ottawa have begun taking fingernail clippings and urine samples from locals to measure how much arsenic remains in the people who live here.

The government has never compensated the Yellowknives Dene for the loss of their land, or the health impacts of the arsenic on their health. A letter the territory sent to the federal government to demand compensation and an apology for the First Nation was met with a simple acknowledgment, but no promises.

By 1960, the mine had drastically cut back its arsenic emissions with the installation of new technologies. But it didn’t stop the gold-smelting process from producing the poison, only from emitting it out the stack. That’s where the 237,000 tonnes of arsenic came from; it was caught, gathered up and air-pumped back underground for safekeeping. That left Indigenous and Northern Affairs Canada with a seemingly impossible task: to secure, for at least 100 years, chamber upon chamber of fine deadly dust.

The committee reviewing 56 possible options to store the arsenic trioxide considered freezing the best among them. That’s why, today, the pronged carbon dioxide-filled tubes act to essentially siphon heat out of the dust, day and night, with no power input required. It’s not a final solution, but it’s stable.

“We don’t know what the solution could be,” says Natalie Plato, deputy director of the Giant Mine Remediation Project. “We’ve noticed there’s a fungus growing on one of our chambers, so there’s a fungus that’s thriving in the highly arsenic-ridden environment. So perhaps there’s a superbug that could eat this in place. We don’t know; it’s strictly science-fiction.”

She, like most professionals involved in the Giant Mine cleanup can’t help but roll her eyes a little at the oft-repeated suggestion that this much arsenic trioxide could kill every human on the planet.

“A tanker truck, actually, could kill every person on the planet if you put it in water and everyone drank it,” she says — what’s buried at Giant is much, much more than a tanker truck. It’s just a matter of keeping it in.

Scrubbing water

Plato stops her vehicle at an overlook on our tour of the Giant Mine site. She tells me she arrived here seeking a greater technical challenge, having begun her government career remediating relatively “boring” Cold War-era Distant Early Warning sites across the High Arctic.

Standing between the remains of the roaster — sequestered in 360 shipping containers in neat rows awaiting burial in the mine — and the cracked bed of a contaminated tailings pond, it’s clear that challenge is something in abundant supply at Giant Mine. The cleanup effort encompasses water treatment, deconstruction of 100 contaminated buildings, extensive underground operations and, of course, freezing an unimaginable quantity of arsenic trioxide — all within a few kilometres of a major city.

Workers will cover the tailings ponds with sheeting and then with gravel, instead of replanting them with grasses and trees. This is at the request of the Yellowknives Dene, Plato says; the First Nation didn’t want the remnants of the toxic ponds to look inviting to future wildlife or foragers.

While that work is happening, the current challenge is water. Between 100 and 400 million litres of water are pumped up from 230 metres below ground each year, and it all needs to be treated to remove the arsenic before it can be discharged into Baker Creek, which empties into Great Slave Lake. For now, the water just needs to meet industrial levels of arsenic, but soon, the water will need to be cleaned to a much higher standard. That will require an entirely new treatment plant, all for a mine that went out of operation nearly 15 years ago.

“We need to up our game,” she explains, if the water is to be treated to the point of being drinkable.

The water licence today is the same as it was when the mine was operational. It doesn’t allow for a landfill on the site (and, as Plato explains, at least some of the garbage generated on site would have been dumped in the tailings ponds) so for now, equipment, decaying buildings, cables  mine carts and other detritus litters the ground.

Underground, it’s even worse; chambers that the various owners should have backfilled as the mining moved around remain empty, a stability hazard for the mass of toxic dust waiting to be kicked up by a collapse. Now the workers are mixing old tailings with cement to reinforce the gaping holes underground.

The federal government recently awarded U.S. contractor Parsons Inc. a $32 million contract to monitor the site for the next two years while it works out the final cost to actually finish the cleanup. It’s expected to be up to $900 million; $356 million has already been spent just warding off catastrophe.

Lessons not learned

There’s a model the size of a large coffee table inside an innocuous storefront on Yellowknife’s main drag.

The storefront is the office of the Giant Mine Oversight Board, an independent body set up in 2015 to act as a watchdog, observing the process of remediating the mine from start to finish. The model depicts the underground extent of both the Giant and Con mines, which bookend the city to the north and south, respectively. The two mines combined look like they make up easily more road underground than there is in the city itself — in the case of Con Mine, stretching under Yellowknife’s roads, schools and homes.

The aboveground impacts of the Giant, Negus and Con mines extend further than the eye can see as well. Prevailing easterly winds blew the arsenic dust across the landscape to the west of the site, creating a cone of contamination that only fades 25 kilometres away from the former roaster. That left the landscape around Yellowknife, a Swiss cheese pattern of lakes and ponds, burdened with high levels of arsenic. Even on Frame Lake — which, in the middle of the city, borders the legislature, City Hall, welcome centre, two parks, museum and swimming pool — signs prohibit fishing, swimming and drinking the water, and the same goes for most of the lakes in and around the city.

There is currently no plan to clean all of them up. Neither the city, federal, nor provincial government has yet taken responsibility for contamination outside of the actual mine site, and the oversight board has criticized the remediation project in its first two reports for failing to figure that out.

Giant Mine may not be the last of its kind. The mine became the taxpayers’ problem when its final owner, Royal Oak Mines, went bankrupt. That has happened again and again, with remediation costs for mines like the Jericho, Colomac and Terra mines all falling on taxpayers.

“It’s a troubling pattern and it hasn’t been fixed,” MLA Kevin O’Reilly told The Narwhal. “In fact, we continue to see mines that go down without adequate financial security [to pay for cleanup].”

The result of decades of loose requirements for upfront security is the Northern Contaminated Sites Program, a federally funded program that as of 2014 is responsible for $2.369 billion worth of cleanup projects — mostly mines that have gone bust as their owners walked away. The Giant and Faro mines occupy the bulk of that funding.

Today in the Northwest Territories, mining and oil and gas remain by far the single largest industry, though diamonds have taken over for gold. The oil and gas industry is sputtering out; in Norman Wells, the only major oil play in the territory, Imperial Oil is winding down. The day I visit Giant Mine, Imperial representatives are also visiting, to get tips on how they can clean up their own sites as they pack up for good.

Now there are rumblings of a new mine: the TerraX City Gold project, which has already staked the last remaining claims surrounding the city, even including islands in Great Slave Lake. It would dive deep into the area’s “greenstone belt” in search of the same plentiful gold that made Giant so giant.

At the same time, the government is developing new legislation to govern mining. That legislation, in its current form, would have the same department that advocates for mining also be responsible for regulating it.

“That’s a conflict of interest,” says O’Reilly. “You can’t have the promoter being the regulator.”

One day about three years ago, Muriel Betsina looked out across Back Bay and saw a black cloud of dust moving across the water. Dust sensors located around the site today give reassuringly low readings of dangerous chemicals, but, terrified by her years of living in the shadow of the mine, she later went out and scrubbed down her entire house and driveway.

The arsenic dust hasn’t just coated the landscape; it still swirls around in the minds of the people who remember babies with full body rashes, fish with lesions on their livers and Labrador tea pots ringed with mysterious chemicals.

Sitting in her home, in full view of the long overdue cleanup, she doesn’t mince words.

“We’ll never recover.”

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

As pipeline politics dominate headlines, British Columbia is poised to overhaul the process that guides how major resource and development projects proceed.

The review now underway of the environmental assessment process has the potential to restore public confidence in the system that evaluates large developments — from open-pit coal mines to pipelines to hydro dams — by considering the combined effects of multiple projects in a single region and instituting other sweeping changes that critics say are long overdue.

“We had this ridiculous situation in northern B.C. where we had 18 LNG projects, five different pipelines and an oil export project all proposed at the same time here,” said Greg Knox, executive director of the SkeenaWild Conservation Trust.

“People were asking ‘can Kitimat handle these LNG facilities, plus [the] Enbridge [Northern Gateway pipeline], plus [the] Rio Tinto’ [Alcan aluminum smelter], and wondering how it would all impact the environment and people’s health.”

The projects would have affected local air quality at a time when the B.C. government had already granted a permit to the Rio Tinto Alcan smelter allowing the company to increase sulphur dioxide pollution in the Kitimat airshed by more than 50 per cent.

Under B.C.’s current regulations, each resource project is assessed separately, as though the others do not exist. There is no mechanism to study the cumulative impact of various projects on, for example, a single caribou herd, or on overall water or air quality in a community like Kitimat.

Concern about additional air pollution from LNG plants prompted the Kitimat community to ask the B.C. government to conduct a regional environmental assessment to address the combined impact of all the projects and figure out how to proceed with fewer ecological and community impacts.

“We had pipelines going everywhere when it would have made sense to have a pipeline corridor,” Knox said.

But the request was ignored, Knox said.

“They refused. They basically sent some form letter. They rejected doing a regional environmental assessment. It was a boilerplate response.”

The Elk Valley coal mines in southeastern B.C. are another case in point when it comes to the cumulative impacts of resource projects. The valley, which is part of one of North America’s most important wildlife corridors, is home to five operating coal mines.

More than 100 years of coal mining has polluted the Elk River with worrisome contaminants such as selenium, a heavy metal highly toxic to fish and birds. Yet each new mining proposal is examined as though it is the only project polluting the river.

B.C. Auditor General Carol Bellringer flagged the government’s failure to manage the cumulative impacts of the Elk Valley mines as a cause for concern, pointing to the environment ministry’s failure to address known environmental issues and the “lack of sufficient and effective regulatory oversight and action” that has allowed the degradation of water quality.

B.C. Environment Minister George Heyman has said the review of the environmental assessment process is designed to restore public confidence in the system.

But how far must the changes go to examine the impacts of a proposed project like a coal mine expansion in the context of other significant resource projects in the same watershed or airshed? Or to prevent projects staunchly opposed by First Nations from advancing through the system at considerable cost to taxpayers?

Decisions currently made in ‘black box’

West Coast Environmental Law lawyer Gavin Smith and other experts say the overhaul of B.C.’s environmental assessment regime must address the lack of a clear rationale behind government decisions to grant certificates to projects with grievous impacts on First Nations and the environment — projects such as the $10.7 billion Site C dam.

“What’s been happening is that the environmental assessment regime goes into a black box,” Smith told DeSmog Canada.

“All of this work on the assessment happens, and it goes to ministers and they just make a decision. Communities are left feeling like all the time and effort they’ve put into the process has been totally ignored. It’s not actually even clear on what basis the decision was made.”

The B.C. government issued an environmental assessment certificate for the Site C dam in 2014, even though First Nations are fighting the project in court and the dam will cause more ecological damage than any project ever examined in the history of Canada’s Environmental Assessment Act, according to more than 200 leading Canadian scholars.

Only three projects ever rejected in B.C.

No matter how environmentally egregious a project is, or how intense the opposition from First Nations and other local communities, when a major resource project exits B.C.’s current environmental assessment process it is almost certain to be stamped “approved.”

“Even projects which, according to federal law, have been found to have unjustifiable impacts on the environment and on Indigenous culture and governance have been approved through the provincial system,” Smith said.

“It’s a pretty strong indication that the system is built to facilitate getting to yes.”

Only three projects have ever been refused a B.C. environmental assessment certificate, according to an email from the provincial environment ministry.

The Ajax mine, a 1,700-hectare open-pit gold and copper mine proposed for the outskirts of Kamloops by Polish mining giant KGHM, is the only project to be rejected in the past seven years.

A proposed landfill for Metro Vancouver garbage, on the Ashcroft Ranch near Cache Creek, was turned down in 2011, while the Kemess North gold and copper mine north of Smithers was rejected in 2008 — but then approved last year.

Rejected projects often return

Smith said there must be mechanisms built into the revamped environmental assessment process to ensure rejected projects can’t simply be tweaked and re-tendered.

Lawyer Sean Nixon vividly remembers his reaction on the day he heard Taseko Mines had submitted a new plan to extract gold and copper from the area around Fish Lake in B.C.’s interior, a lake sacred to the Tsilhqot’in Nation.

“The first response was incredulity,” recalled Nixon, who had represented the Tsilhqot’in National Government several years earlier during the environmental assessment for Taseko’s project, dubbed the “Prosperity” mine.

The B.C. government granted Taseko a provincial environmental assessment certificate in 2010.

But Ottawa refused to issue a federal certificate, largely because the mine would drain Fish Lake — known as Teztan Biny to the Tsilhqot’in Nation — and turn part of it into a toxic tailings pond that would destroy rainbow trout habitat and wetlands.

That was supposed to be the end of the matter.

But then the project was back again. This time, when Nixon heard about it in 2011, it had a different name: Taseko called it the “New Prosperity” mine.

The project was virtually the same, with one major exception. The company said it would move the tailings pond upstream from Fish Lake — enough of a change to spark a second federal environmental assessment review, at an unknown cost to Canadian taxpayers.

In B.C., the process the company went through was a breeze by comparison. Taseko merely requested an amendment to its environmental assessment certificate, which was duly approved by the provincial government even though Taseko lacked a clear plan to keep tailings pond contaminants out of Fish Lake.

“The province didn’t need details about how the company planned to keep chemical contaminants from destroying the lake,” Nixon told DeSmog Canada. “The mining company said it would work out the details later. And B.C. accepted that claim at face value.”

As with the Prosperity mine, there’s nothing to stop the Ajax project from being re-submitted to the B.C. Environmental Assessment Office with modifications and a new name.

The KGHM website still lists Ajax as a project “under development,” and the company has said it is considering its options.

Early-planning phase would axe non-starter projects

Smith says the revamped system needs to include the ability for the B.C government to say “this project doesn’t stand a reasonable likelihood of success so we’re not wasting taxpayer money doing, for example, a third assessment on a project that’s already been rejected.”

Sustainability criteria — such as targets for maintaining air and water quality – need to be built into the law, and decision-makers need to justify their decisions based on these criteria, Smith said.

To deal with projects as controversial and destructive as the Site C dam or the New Prosperity mine, Smith said B.C.’s environmental assessment process needs to include an “early planning phase,” during which the views of First Nations and other local communities are taken into account well before the project advances through the system.

Perhaps the project is “a total non-starter from the get-go,” said Smith, in which case communities should be able to say “there’s no way this project is going to happen.”

In the case of Taseko, the former B.C. Liberal government approved exploration permits for the New Prosperity project last summer during its final days in office, while Tsilhqot’in members were under a wildfire evacuation notice, even though the federal government had also refused to grant the project an environmental assessment certificate the second time around.

The company subsequently took the federal government to court and lost in December.

Yet Taseko’s website still lists the New Prosperity mine as one of the company’s five properties, while noting “there is considerable uncertainty with respect to successful permitting of the project.”

Smith said he would be surprised if the company submitted a third iteration of the project to the B.C. Environmental Assessment Office. But until B.C.’s environmental assessment process changes, he said, “on paper, Taseko’s New Prosperity project still exists and is still a risk.”

A 12-member advisory committee, led by ecologist Bruce Fraser and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council, is due to release a discussion paper on the review process in May, including feedback from the Environmental Assessment Office.

After a public comment period, the government will introduce reforms in the late fall.

The federal government is simultaneously overhauling its environmental assessment process with Bill C-69, but the bill has been criticized for falling short in several key areas.

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

There are so many problems with B.C.’s current environmental assessment process that a review, announced Wednesday by Environment Minister George Heyman, will almost certainly mean improvements, say environmental groups.

Heyman said it is clear that the public has lost trust in the process, leading to conflict and uncertainty and government’s priorities are working with First Nations and ensuring the process is science-based.

“We’ll be working with Indigenous groups at every step of the revitalization process,” Heyman said.

“Our government wants to ensure we have a process that’s transparent, science-based, timely and provides early indications of the likelihood of success. This work will also contribute to our government’s commitment to fully implement the United Nations Declaration on the Rights of Indigenous Peoples,” he said.

An overhaul of the process that decides whether major resource and development projects should proceed, will be spearheaded by a 12-member advisory committee, led by ecologist Bruce Fraser, former chair of the Forest Practices Board and the provincial Task Force on Species at Risk, and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council.

Other committee members include First Nations, industry and union representatives and specialists in impact assessment, climate change and renewable energy.

The committee will release a discussion paper in May, including feedback from the Environmental Assessment Office, which will be holding government-to-government meetings with First Nations and meeting with industry, local governments and non-governmental organizations.

After a public comment period, the government will introduce reforms late fall. Priorities include enhancing public confidence, transparency and “protecting the environment while supporting sustainable economic development,” says a government news release.

Assessments already underway will continue under the current system.

“There have been too many instances where development has failed to ensure the health and safety of our local communities. This has left communities and First Nations with no choice but to use the courts to advocate for their own protection.” https://t.co/rjovpT4fuO

— DeSmog Canada (@DeSmogCanada) March 8, 2018

B.C.’s environmental assessment process brewing controversy

Controversies over environmental assessments in B.C., combined with the previous Liberal government’s increasing reliance on industry professionals for advice — something now under review by the province — have included the Site C dam, the Mount Polley tailings dam collapse and approval of the Woodfibre LNG facility on Howe Sound.

A high-profile conflict erupted after approval of a contaminated soil dump near Shawnigan Lake, a battle that pitted the community against the former B.C. Liberal government and revealed deep flaws in the assessment process, such as the “independent” engineering company being paid by the proponent.

B.C. Green Party MLA for Cowichan Valley Sonia Furstenau, who was at the heart of the fight against the soil dump, said the review is a first step in restoring public trust in the environmental assessment process.

ICYMI: Embattled Taskeo Mine Permits Show Why B.C. Needs an Environmental Assessment Overhaul

“There have been too many instances where development has failed to ensure the health and safety of our local communities. This has left communities and First Nations with no choice but to use the courts to advocate for their own protection,” she said in a statement.

“A robust environmental assessment process that includes adequate consultation and thorough scientific, evidence-based analysis will avoid costly legal challenges and save government from dealing with expensive clean-ups when projects go awry.”

A strong process will also provide greater certainty for industry, Furstenau said.

Ecosystems, cumulative effects should be considered in assessments

Gavin Smith, West Coast Environmental Law staff lawyer, said the move to overhaul the system is sorely needed as the current model is not working.

“It’s time for a new approach, one that safeguards ecosystems, recognizes indigenous jurisdiction, helps B.C. meet its climate commitments and responds to community voices,” he said.

A recent paper by WCEL examined flaws in the system such as weak public participation, the failure to consider the cumulative effects of development and the failure to recognize First Nations as decision-makers in their territories.

The review has the potential to ensure better decisions about projects such as mines and pipelines and to protect against “death by a thousand cuts” from the combined effects of may developments in a region, Smith said.

Peter McCartney, Wilderness Committee climate campaigner, echoed the long overdue theme and pointed to the Woodfibre decision as an example of valid concerns being ignored.

Bringing First Nations into the process and transparency around how public comment is taken into account should be priorities, McCartney said.

“And there needs to be a route to ‘no’ in this process,” he said.

Instead of looking at mitigation for problems such as putting a gravel mine in a salmon spawning area, there needs to be a clear ultimatum, early in the process, that says the project will not go ahead, he said.

ICYMI: B.C. Urged to Review Industry-Funded Science Behind Approval of Gravel Mine

Jens Wieting, Sierra Club B.C. Forest and Climate Campaigner, is cautiously optimistic that the plethora of problems with environmental assessments can be fixed.

“First, we need a climate test as part of environmental assessments because that will show us that some of the projects are inconsistent with our goals to stabilize the climate. That is true for LNG terminals and the Kinder Morgan pipeline,” he said.

Also, the entire ecosystem must be considered when a project is proposed.

“Ecosystems and endangered species are already under pressure and industrial development can be the tipping point. Look at the southern resident orcas — we know the Kinder Morgan tanker traffic would lead to extinction,” Wieting said.

Science-based decisions are needed and, if a project leads to extinction or the collapse of an ecosystem, it must be rejected, he said.

The overhaul of the provincial environmental assessment process comes after an announcement that the federal process is being streamlined.

A new Impact Assessment Agency will be tasked with carrying out reviews of all major projects, with a mandate to include health and social impacts and long-term effects on Indigenous people. Simultaneously the National Energy Board will be replaced by the Canadian Energy Regulator.

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

The Alberta government and an unlikely crew of allies — including Greenpeace, an oil lobbying firm, Ecojustice and attorneys general of four different provinces — are squaring off with ATB Financial in a Supreme Court case that could let polluters off the hook when they go bankrupt.

The question being tried is whether creditors, like banks, can pick and choose the best assets an oil company owns when it goes bust, or whether governments can use a company’s good assets to pay to clean up its messes before the banks get paid.

At the granular level, the specific case at issue began when Redwater Energy went under in 2015. Its bank, ATB Financial, turned its nose up at nearly 80 per cent of its assets instead of taking the lot.

“Of the 97 or so properties owned by Redwater energy, [ATB] purported to accept only 20 wells — the profitable wells — and leave behind the unprofitable wells and a pipeline,” says Ecojustice lawyer Kurt Stillwell.

“The Alberta Energy Regulator ordered the trustee to properly abandon the wells. It refused.”

That attempt to ditch the bad assets kicked off a series of court cases and appeals, the most recent of which was argued before the Supreme Court in mid-February. The verdict isn’t expected for several months.

In an odd twist of fate, the case has the Canadian Association of Petroleum Producers fighting on the same side as Ecojustice and Greenpeace.

“It’s unusual…we didn’t have necessarily the same arguments,” said Keith Stewart, climate and energy campaigner at Greenpeace. “They’re trying to make sure solvent companies shouldn’t have to pay for these costs; we’re trying to make sure the environment doesn’t bear the cost.”

Ramifications for Other Sectors

The Alberta Energy Regulator’s CEO Jim Ellis put out a statement emphasizing the potential scope of the case.

“We can’t emphasize this enough: this is not an Alberta problem,” Ellis wrote. “This is not an oil and gas problem. It can be applied to industrial sites left behind by companies in other industries, allowing receivers to take and sell for the benefit of creditors the good assets and walk away from the bad ones and the end-of-life obligations associated with them.”

Greenpeace echoes the energy regulator; Stewart says the result could affect the way a whole swath of resource extraction companies are regulated.

“This case is really important because it’s not just oil and gas,” Stewart says. “The precedent it’s setting could apply to mines or forestry companies — boom and bust industries.”

The case could also determine how other sectors — like forestry or mining — manage their own environmental cleanup https://t.co/hjwmehsQHn

— DeSmog Canada (@DeSmogCanada) February 23, 2018

Spike in Orphan Wells

Ellis blames the original ruling (in favour of the bank) for causing a jump in the number of oil wells that have been “disclaimed” or not remediated (“abandoned,” in industry-speak, is actually a good thing, meaning the well has been capped and is ready for remediation).

For the oil industry, this means an extra financial burden for the companies that haven’t gone bankrupt — and in a financial downturn, that is usually smaller players, not the Exxons and BPs of the world — via the Orphan Well Association, an industry-funded organization that manages wells that haven’t been properly abandoned and reclaimed. The number of wells on the Orphan Well Association’s books has shot up more than threefold since the Redwater ruling, from 1,200 to 3,700.

Since funding is collected from well owners depending on their estimated liabilities, a crash in oil prices, like in 2014, and a series of bankruptcies like that of Redwater Energy, can mean provincial taxpayers are left holding the bag for cleanups.

Tony Bruder has experienced that firsthand on his own land. Two inactive sour gas wells on his property were left idle for decades before the Alberta Energy Regulator ordered its owners to clean up the mess, and when the company failed to comply, the regulator did the job itself.

“There’s no doubt in my mind that the companies have to be held responsible,” says Bruder. “And in order for that to happen properly, the Alberta government, which gave those companies the right to drill…they have to be willing to stand behind the decisions they’ve made, and hold those companies accountable.”

But the Redwater case could mean the provincial government loses its authority to hold companies responsible. The deciding factor will be whether the government’s jurisdiction over environmental regulation means it can overrule federal bankruptcy laws.

The case is being anxiously watched by all sides. In an emailed statement, ATB Financial said the ruling will provide certainty to a law that has been on the books for over 25 years.

“Whatever the decision of the Supreme Court, the clarity and certainty it will provide is important to all parties in the oil and gas sector and financial institutions who lend to those companies,” it said.

“We, and all the other creditors to the industry, are interested observers in the outcome.”

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

When it comes to the rights of Indigenous peoples, Prime Minister Justin Trudeau talks a really good talk. A close look at new laws that will dictate how major resource projects are reviewed, however, suggest he wants to leave himself a lot of wiggle room when it comes to walking the walk.

The week before Trudeau was lauded for a speech in the House of Commons that promised of a new legal framework for Indigenous people, his government released two long-awaited pieces of environmental legislation.

Initial reactions were cautiously optimistic. But now that the dust has settled,  it’s clear that matching words to action is often an exercise in optimistic romanticism.

Bill C-69 — which will overhaul the Canadian Environmental Assessment Act, National Energy Board Act and Navigable Waters Act — mostly restores protections to how they were before the Harper Conservatives decimated them in 2012, but little has been done to truly modernize processes.

It’s “abundantly clear that the architects…have no transformative aspirations,” wrote University of Victoria law professor Chris Tollefson in an article for Policy Options.

Unfortunately, the same appears to be true about what the new legislation means for how Indigenous peoples and communities will be included in future environmental assessments and protection planning: rather than tightening the rules to make ministers more accountable for upholding First Nations’ rights, the new laws give them broad discretion at every turn.

“Looking at the bill itself, we don’t really see the robust impact-assessment, sustainability framework that was promised,” said Sara Mainville, partner at OKT Law and former chief of northwest Ontario’s Couchiching First Nation.

Requirements to integrate Indigenous knowledge, governments

To be sure, there were some new developments on how governments plan to engage with Indigenous people.

The revised acts require that Indigenous traditional knowledge be used to inform decision-making, require that such knowledge is protected from public disclosure, and create new abilities for Canada to enter into management agreements with Indigenous governing bodies (rather than just provinces and territories).

In the case of impact assessments, the revised bill also explicitly requires that adverse impacts on Indigenous rights need to be considered — a significant shift from the current legislation.

“What the present Act requires is that potential impacts to the current use of lands for traditional purposes be assessed,” said Jeff Langlois, lawyer at JFK Law and recently counsel for Gwich’in Tribal Council in the Peel Watershed case.

“It lets proponents and the government in these formal environmental assessment processes just focus on the use of the land today. Like ‘Have you hunted in the last couple of years? Is it going on right now?’ It’s made these environmental assessments very narrow in scope.”

The proposed legislation expands the review criteria. But here’s the catch — it only needs to be considered by the minister and can always be ignored in the name of “public interest.”

“All that cabinet has to do is say in its reasons that, ‘We took Indigenous impacts and interests into account,’ ” said Jason Maclean, environmental law professor at the University of Saskatchewan. “It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.”

“It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.” https://t.co/2ZDqesKoPc

— DeSmog Canada (@DeSmogCanada) February 20, 2018

Regional impact assessments only required if minister wants

The issue of ministerial discretion also plagues many other elements of the bills.

For example, Bill C-69 suggests the use of regional impact assessments and strategic impact assessments. Such tools can be used to provide baseline data or plans for an entire area such as the oilsands-dominated Lower Athabasca Region of northeast Alberta in order to help track cumulative impacts — whether they be on the local environment, Indigenous rights or ability to meet climate targets.

Langlois said that a big problem with the current approach is that every proponent and government will argue that you can’t blame any one project for infringement on Aboriginal and treaty rights, meaning none are ever stopped on those grounds.

But once again, the rules are soft: the  bill is worded carefully to say that the Minister “may” order a regional or strategic assessment.

“If you want to take these strategic and regional assessments as effective tools, you should be putting some trigger in place to say, ‘What’s going to make you do that assessment?’” Langlois said. “Right now, it’s still just totally discretionary, as is all decision-making under the act still.”

Bill falls short of expert recommendations

It’s also a fundamental undermining of recommendations made by the government’s expert review panel in its comprehensive April 2017 report, which specifically recommended that legislation “require” such tools to be used in any area where cumulative impacts may occur or already exist and to “guide” the entire impact assessment.

It’s one of the panel’s many key suggestions that has been weakened in the bills.

“I often look at the expert panel report as a recipe, not as a menu,” Mainville said. “You can’t really pick and choose different pieces of it.”

A central ingredient in that recipe was dealing with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which contains the principle of “free, prior, and informed consent.” But there wasn’t a single mention of UNDRIP in the bill.

Instead, Trudeau’s Environment and Climate Change Minister Catherine McKenna pledged to “try really hard” to gain consent from Indigenous communities.

Further complicating the situation was McKenna’s assurance that the Kinder Morgan Trans Mountain pipeline would have been approved under the new environmental assessment legislation — despite many Indigenous communities vehemently opposing its construction.

“Bill C-69’s really obvious failures to mention, let alone implement, UNDRIP or [free, prior and informed consent] is a failure for the government to take a step forward towards shared governance with Indigenous peoples,” Maclean said. “Instead, it retains the same colonial top-down model that reposes all the decision-making power with the federal cabinet under a very broad and highly discretionary ‘national interest’ test.”

Liberals recently supported UNDRIP bill, pledged new legal framework

In addition to finalizing the legislation, the government will have to craft a wide range of regulations, policies and programs. Such tools could provide more insights into how the Liberals expect to integrate their support of MP Romeo Saganash’s recent private member’s bill to fully implement UNDRIP, as well as Prime Minister Justin Trudeau’s pledge to establish a new legal framework for Indigenous peoples.

“This staged approach is the silver lining to all this,” Mainville said. “But the wait-and-see is wearing First Nations’ patience a little thin.”

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

The B.C. government tried to steer clear of controversy over liquefied natural gas exports, the Site C dam and fish farms in the Speech from the Throne Tuesday. The speech laid out the NDP’s “affordability” agenda and unveiled plans to revitalize the environment assessment process and address fugitive emissions in the oil and gas sector.

“As B.C. develops its abundant natural resources, we must do so in a way that meets our obligations to the environment, First Nations and the public interest,” read the speech, presented by Lieutenant Governor Judith Guichon to mark the start of a new legislative session.

“This year, government is taking important steps to restore public trust in B.C.’s environmental stewardship.”

Those steps include new efforts to meet B.C.’s climate action targets, increasing the carbon tax to position B.C. to meet the federally mandated price of $50 per tonne by 2022, investing in parks and protected areas and hiring more conservation officers.

More details about how the government plans to move forward with these priorities will come on Feb. 20 when the budget is unveiled.

“It’s time to get B.C. back on track,” the throne speech stated, noting B.C. “has fallen behind on its climate obligations” and that the previous BC Liberal government failed to achieve its own greenhouse gas reduction targets.

The NDP government also pledged to develop a cross-ministry framework to meet its stated commitment to the United Nations Declaration on the Rights of Indigenous Peoples, the calls to action of the Truth and Reconciliation Commission and the Tsilhqot’in decision.

The rights and needs of B.C.’s Indigenous peoples “have been set aside for far too long,” said the throne speech.

“This government understands the enormous responsibility it has to Indigenous peoples in the wake of inaction by government after government.”

Site C dam a sore spot for Indigenous rights

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, called the government’s commitment to reconciliation with Indigenous peoples “encouraging,” but said he has still not forgiven Premier John Horgan “and his inner circle” for “completely violating the rights of Treaty 8 people” by greenlighting the $10.7 billion Site C dam in December.

“I find it highly hypocritical that they can talk about the need to acknowledge the principles and intent of the UN Declaration on the Rights of Indigenous Peoples and at the same time make such an egregious decision in complete violation of those same rights,” Grand Chief Phillip told DeSmog Canada.

“I’m finding it very hard to get beyond that colossal hypocrisy.”

Grand Chief Phillip also said he has heard scores of throne speeches during more than four decades of his involvement in B.C. political issues and that generally there is only a “passing reference” to Indigenous peoples.

“I’ve never heard a throne speech that has been so explicit in its acknowledgment of the responsibilities of the government of British Columbia to act on the rights enshrined in UN Declaration on the Rights of Indigenous Peoples and the multitude of court decisions” handed down by the Supreme Court of Canada and other levels of court, he said.

“But again they have to walk the walk. They completely and utterly failed in regard to the Site C dam decision. You only get one chance to do the right thing and in regard to Site C they completely blew it.”

Site C, the most expensive publicly funded project in B.C.’s history, was not mentioned in the 20-page speech. Nor were fish farms, which have been in the news recently over the discharge of contaminated bloodwater.

In January, West Moberly First Nations and Prophet River First Nation filed notices of civil action claiming that the Site C dam — along with two existing dams on the Peace River — infringes on rights guaranteed to them in Treaty 8, which promised they can continue their traditional way of life.

A third Treaty 8 nation, Blueberry River First Nations, has launched a civil lawsuit claiming that the cumulative impact of industrial development in their homeland, including the Site C dam, means they can no longer continue traditional practices guaranteed to them in the treaty.

The grand chief said an important first step to realizing commitments outlined in the throne speech would be for the B.C. government to bring forward legislation that “enshrines” the UN declaration in the government’s legislative agenda, “as opposed to simply paying lip service to it in the context of throne speeches.”

Premier John Horgan told press he would not be provoked into a trade war with Alberta. Photo: Chad Hipolito | The Canadian Press

Fracking, fugitive emissions on the agenda

The throne speech said little about the government’s plan to address fugitive emissions in the oil and gas sector, and from slash burning, noting only that “research is underway.” A recent investigation by registered professional biologist John Werring found that B.C. is vastly underreporting its “fugitive emissions” — emissions vented or leaked during the natural gas extraction process.

Environment Minister George Heyman told DeSmog Canada that the NDP will work with the Green caucus “on a variety of measures to deal with fugitive emissions.” He said the finance ministry is working on taxation measures and that the issue will also be considered by B.C.’s new climate solutions and clean growth advisory council.

Heyman said the government will be announcing a timeframe for revitalizing the environmental assessment process “in the coming weeks.”

The throne speech also reiterated that the potential of a diluted bitumen spill in B.C.’s coastal waters “poses a significant risk to our economy and our environment.”

Alberta Premier Rachel Notley announced a B.C. wine boycott last week after B.C. said it would set up an independent scientific advisory panel to look at how diluted bitumen can be safely transported and cleaned up, if spilled.

But the throne speech made no mention of an inter-provincial spat over the Kinder Morgan pipeline, in keeping with Horgan’s statement that he refuses to be provoked into a trade war with Alberta.

Following the throne speech, Horgan reiterated to the media that the risk of transporting raw or diluted bitumen through B.C.’s inland waters and along the coast is “a risk too great” for British Columbians.

“We will continue our discussions with the federal government any anyone else who wants to talk to us about how we can ensure that British Columbia’s environment and economy are not affected by any movement of this product through our territory.”

Nor did the speech from the throne mention Liquefied Natural Gas (LNG), an issue over which B.C. Green Party leader Andrew Weaver has threatened to bring down the government.

“We cannot pretend that a market exists when a market doesn’t exist,” Weaver told the media following the throne speech. “For year after year after year I’ve been saying it is folly for us to try to chase a falling star.”

“They [the NDP] were cautious. I think they did the right thing. And I think that people are sick and tired of being promised unicorns.”

On a recent Asian trade mission, Horgan met with Korean, Japanese and Chinese partners in LNG Canada, a Shell-backed project near Kitimat that is in the planning stages.

Weaver pointed out that B.C. will not be able to meet its climate targets if any major LNG project goes ahead, telling Desmog Canada in a previous interview that, “I am not standing by and watching us give away the farm yet again to land an industry we’re not competitive in. That’s my line in the sand.”

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

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

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

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

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

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

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

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

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

There are some good signs

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

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

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

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

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

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

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

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

— DeSmog Canada (@DeSmogCanada) February 9, 2018

Ah yes, balancing the ol’ environment and economy

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

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

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

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

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

Could be a game-changer.

Weeding out bad ideas

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

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

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

Let’s get regional

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

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

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

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

Yet those region specific impacts assessments are discretionary.

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

Much mystery remains …

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

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

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

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

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

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

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

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

Clear as mud

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

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

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

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

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

— With files from Jimmy Thomson

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

When a Canadian federal-provincial environmental review panel ruled in 2007 that a proposed quarry would go against community core values and would threaten right whales and other marine life in the Bay of Fundy, groups that had fought against the project believed that was the end of the story.

But, that is not how the system works under the North American Free Trade Agreement (NAFTA), which has dispute settlement provisions allowing corporations to sue governments for compensation when they feel the local environmental approvals process has interfered with expected profits.

Instead of abandoning efforts to build a quarry and marine terminal on Digby Neck, Delaware-based Bilcon headed for the NAFTA Investor-State Dispute Settlement tribunal and, in 2015, the three-person panel ruled two-to-one that the environmental assessment panel had violated Canadian law by using the criterion of core community values.

Bilcon has claimed $300-$500 million in damages.

Bilcon project included shipping path in endangered whale nursery

The Bilcon NAFTA ruling was inexplicable to Nova Scotia residents as the company planned to blast within 50 metres of the Bay of Fundy and build a 600 foot pier with nearly 50 45,000 tonne vessels a year carrying quarried basalt to the U.S. through waters that serves as a nursery for severely endangered right whales.

ICYMI: 3% of the World’s Endangered Right Whales Died This Summer, Mostly in Canada’s Unprotected Waters

This week, the federal government and environmental organizations are in federal court arguing the NAFTA arbitration panel overstepped its bounds and, with NAFTA renegotiations underway, the case is being watched closely.

Ecojustice, working with Sierra Club Canada Foundation and East Coast Environmental Law, is arguing that Bilcon had the opportunity to ask a Canadian court to rule on the alleged breach of federal law, but, instead, went through NAFTA, which is supposed to decide only on questions of NAFTA law, meaning the tribunal stepped outside its legal expertise.

“If this decision stands it will send a chilling message that even when the Canadian government makes good decisions to protect our environment, there’s a chance that a NAFTA tribunal could swoop in, decide our environmental laws are unfair and force Canada to cough up hundreds of millions of dollars — leaving Canadian taxpayers on the hook,” Ecojustice said in a news release.

“We can’t let that happen.”

A local battle to protect a community and its environment “has turned into a broader fight to ensure international trade agreements do not supersede Canada’s environmental laws,” the release said.

The Bilcon case is under the legal microscope, but it is not the only case where Canada has been financially dinged after losing a NAFTA investor-state dispute.

The company is seeking $300 to $500 million in damages. https://t.co/8O8bRjNi4s

— DeSmog Canada (@DeSmogCanada) January 30, 2018

Canada dinged $220 million in NAFTA losses, faces half a billion more

A report by the Canadian Centre for Policy Alternatives found that, as of January 1, 2018, Canada has paid out nearly $220 million in NAFTA losses and settlements — all to U.S. investors.

Those claims often targeted legitimate, non-discriminatory environmental protection, public health and resource management decisions made by Canadian governments, according to the report.

Canada currently faces eight claims with investors demanding about half a billion dollars, including Omnitrax’s claim relating to its broken rail line to Churchill, Manitoba and Lone Pine’s challenge to Quebec’s fracking moratorium, the report found.

In addition, the federal government has spent more than $95 million in legal fees defending the ballooning number of investor-state lawsuits.

The information was compiled by CCPA senior research fellow Scott Sinclair, through access to information requests, and Sinclair would like to see the federal government grasping the opportunity to remove the process from NAFTA — something suggested by the U.S.  

But, instead, Canada’s position is to retain the dispute process as it helps Canadian resource companies investing in developing countries.

Canada is the most-sued country under NAFTA’s Chapter 11 which gives companies the right to sue governments.

Since 2010, Canada has been sued twice as many times as Mexico and the U.S. combined, which is a worrying trend, Sinclair said.

“The Trudeau government has more than enough reasons to remove the undemocratic investor-state dispute settlement process from NAFTA during the current renegotiations, as proposed recently by the U.S. administration,” he said in a news release.

Canada could gain leverage by withdrawing its opposition to allowing countries to opt out of the process, Sinclair said.

“This could help negotiators advance other key Canadian interests, such as safeguarding affordable access to medicines or securing meaningful continental labour standards.”

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

A controversial proposal for a gravel mine at the mouth of a salmon-bearing creek on Howe Sound is a graphic illustration of a broken environmental assessment process — one that relies on science paid for by the proponent, say opponents of the Burnco Aggregate Project on McNab Creek.

“This project is going to impact one of only three estuaries in Howe Sound and it’s critical for salmon spawning habitat, but there is no independent data even on how many salmon are in the creek,” Tracey Saxby, marine scientist and volunteer executive director of the environmental organization My Sea to Sky, told DeSmog Canada.

The company plans to extract up to 1.6 million tonnes of gravel a year for 16 years, which would be shipped from a marine barge loading facility to company operations in Burnaby and Langley.

But Saxby says that since estuaries are vital for wild salmon it makes no sense to consider such a project without independent data, pointing out that residents are also concerned about noise, dust and barges travelling to and from the facility every other day.

Saxby is spearheading a campaign that has bombard Environment Minister George Heyman and Energy and Mines Minister Michelle Mungall with more than 2,600 letters asking them to stop the Burnco gravel mine and to rethink the environmental assessment process.

The group is calling for the government to undertake a review of the environmental assessment process for the gravel mine and for a “robust and fully independent baseline assessment of wild salmon populations in McNab Creek.”

Industry-Funded Science at Heart of Brunco Controversy

The Burnco gravel mine, which has been wending its way through the system for six years, is a clear example of what is wrong with the professional reliance model, Saxby said.

B.C.’s professional reliance system allows private companies and project proponents to hire biologists, engineers, geoscientists and other experts to assess environmental risks, instead of the work being done by government professionals or independent contractors hired by government.

It is a controversial self-regulating model, used extensively by the former BC Liberal government after cuts to the civil service, and has come under increasing scrutiny since the 2014 collapse of the Mount Polley tailings pond and a community battle over government approval of a contaminated soil facility above Shawnigan Lake.

Last month, Heyman ordered a review of the province’s professional reliance system, with a final report expected next spring.

Green Party MLA Sonia Furstenau, who was at the centre of the Shawnigan Lake contaminated soil battle, has received 2,300 emails on the Burnco application in less than 24 hours.

That reaction to the proposal is an example of how professional reliance has undermined public trust, Furstenau said in an interview.

“This [gravel mine] is such a clearcut example,” she said.

A controversial gravel mine at the mouth of a #salmon-bearing creek in #HoweSound is an illustration of a broken environmental assessment process — one that relies on science paid for by the proponent, says @MySea2Sky https://t.co/gwHY0LZ91h #bcpoli @SoniaFurstenau

— DeSmog Canada (@DeSmogCanada) November 28, 2017

Review of B.C.’s Environmental Assessment Process Needed: Green Party MLA

“The review [of professional reliance] is necessary because, when people do not trust the government's process, it creates economic uncertainty and the impacts on the community are huge and sometimes devastating,” Furstenau told DeSmog Canada.

When the review recommendations are submitted, government must take them extremely seriously in an effort to address the profound lack of public trust, Furstenau said.

Saxby pointed out that the only information on salmon in McNab Creek came from a citizen scientist and, because of that, the Department of Fisheries and Oceans previously refused permits for a gravel mine.

“This is just one example of what happens and you have to question all the other decisions made by the Environmental Assessment Office,” Saxby said. “There’s a real lack of trust in the integrity of the process.”

“Public engagement is nothing more than a checkbox on a form and the process relies on science that is bought and paid for by the proponent,” she said. “It’s a clear conflict of interest.”

“There is no point engaging in this broken process so we decided to bypass the process and email the ministers directly…We need the province to press pause until it restores public trust in the process.”

A 30-day public comment period on the Burnco application ended this week and the Canadian Environmental Assessment Agency will release a report next month, followed by another public comment period.

Illustration: Carol Linnitt

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

For decades, Kevin Taft has served as a thorn in the side of Alberta’s provincial government.

In his new book, Taft, who served as a Liberal MLA between 2001 and 2012, and as leader of the Alberta Liberal Party — the province’s official opposition — between 2004 and 2008, maintains his course.

Oil’s Deep State: How the Petroleum Industry Undermines Democracy and Stops Action on Global Warming — in Alberta, and in Ottawa is a controversial read.

Notably the book implicates the Alberta NDP, which was elected in 2015 with promises to challenge the sector’s dominance over political processes. To help explain why that didn’t happen, Taft deploys concepts of institutional capture and deep state — a term used when institutional capture occurs with several different entities and is maintained for a long time.

It’s a challenging and insightful read, one that will likely spark many debates about how we talk and think about the oil and gas sector.

DeSmog Canada chatted with Taft about the book.

What inspired you to write Oil’s Deep State?

When you’re in the middle of action in politics, you don’t necessarily see the bigger picture. You’re fighting the local battles.

After I left politics in Alberta, I was invited to go to Australia to talk about the effect of the fossil fuel industry on democracy, because they have some real concerns there. That prompted me to begin reflecting on my own experience.

Essentially, the book is an account of the collision between the oil industry and global warming, and how democracy is caught in the middle of that.

What I think I bring to the discussion is a sense of how the oil industry has systematically set out to capture a whole series of supposedly independent, democratic institutions like political parties — both governing and opposition — certain components of the civil service, departments of energy and environment, regulators, universities and so on. And how by capturing these and taking a coordinated approach to managing them or overseeing them, the oil industry has actually formed a kind of state within a state when it comes to its own interests: what I call a “deep state” or “oil’s deep state” in this particular case.

Did you sense these powers while in politics?

Oh, very much. Everywhere I would turn as a leader of the opposition, I would be facing or dealing with the oil industry. Whether I was trying to raise money to pay for the political party, or walking through the lobby of the legislature and watching lobbyists for the oil industry literally sometimes hugging government officials, or when I was at the university watching millions of dollars flow from the industry into the universities, and so on.

Of course, when you’re in the middle of the battlefield, you don’t necessarily see the bigger picture.

But when I backed away, I thought ‘gee, political parties should be independent, universities are set up supposedly to be independent, regulators by their very mandate are supposed to be independent.’ And yet over and over, I saw they weren’t.

The book touches on universities quite a few times in terms of how they’ve channelled some of this influence. What is it about institutions like the University of Calgary and University of Alberta that have them serving as such key leverage points for industry?

Universities, in the public mind, are seen as independent. They’re seen as thought leaders.

If you hear comments from a corporate spokesperson, your filters are sort of up.

But if you hear similar comments from a university academic, they simply have more credibility. That makes universities, ironically, a particularly tempting target for organizations wanting credibility.

The core of the debate on global warming is science. The universities, starting in the 1960s, were the foundation of much of the scientific research underlying global warming. To win the battle and delay action on global warming, the oil industry needed to gain influence in universities to smother or distort or counter the science that was coming out. And they succeeded substantially.

In the book, I drill into a very interesting legal case: the Bruce Carson illegal lobbying trial.

Carson was senior adviser to Stephen Harper in the prime minister’s office and then he went to a very generous-paying position at the University of Calgary to set up an institute there. He was ultimately charged with illegal lobbying on behalf of the oil industry in relation to that position at the university. During the trial, all kinds of behind-the-scenes documents came forward: e-mails, minutes, bank statements, corporate plans and so on that were never meant to be public.

When you drill into those, you can see how systematic the oil industry was and how many millions of dollars they poured into pulling together federal, environment, energy and provincial officials at the highest level. Politicians, academics: all of that to try to build an energy strategy that had fossil fuels at the middle of it.

This is not happy news for me. I live in Alberta, and have lived pretty much my whole life in Alberta.

There’s no question that Alberta and Canada have prospered and done well because of oil. I’m not happy that using oil is causing a global crisis.

But it is true. It is the reality. And we need to deal with that. As long as the oil industry has so much sway over our governing institutions, we’re not going to deal with it effectively.

A lot of people had high hopes for the Alberta NDP when they were elected, seeing as they’d spent a long time talking about the need for things like increased royalties and more focus on tailings reclamation. What do you think happened? Did they have that much of a choice, or were they effectively destined to get swallowed up in this deep state?

I have a lot of sympathy for Rachel Notley. She was elected as premier when nobody, including herself, really expected it. She and her cabinet stepped right into a scene that had already been set.

Her closest advisers in the civil service were very tight with the industry. You could almost say the Alberta Energy Regulator is run by the industry: it’s financed by industry and the chairman is a former industry executive. She was surrounded by pro-oil forces.

At the same time, I would have liked a little stiffer stance on things like royalties. We’re in a situation today in Alberta where the government sells almost three million barrels of bitumen to Big Oil every day. Three million barrels every day. But the Alberta government earns more from gaming and alcohol sales than it does from bitumen royalties. That’s how far out of whack the royalty system is.

The New Democrats really did nothing to change that. I was disappointed in that. I think their move on the carbon tax is very good. I support that. But I think they’ve made an error. It’s easy for me to say from where I am. But they’ve made a mistake in turning pipeline expansion into the live-or-die priority.

Here’s the key point: the interests of the oil industry are not the same as the interests of the people of Alberta. We’ve tended to forget that in Alberta. Unfortunately, I feel like the New Democrats — who had a heroic reputation in opposition — have forgotten that.

What do oil industry interests look like in a day-to-day context?

When I was leader of the opposition, the pressure from the industry was just brutal.

Let me just preface this by saying the oil industry is filled with lots of wonderful, capable people. I don’t want to demonize the individuals. And some of them became friends and real supporters. But at the end of the day, their interest is in producing and selling oil. Oil, when it’s burned, produces carbon dioxide, which is changing our climate.

When I was in politics as leader of the opposition, I had some pretty tough, confrontational meetings where energy executives are really raked me over the coals for taking a stand on higher royalties, for example.

I’d get called into meetings. They’d pound the table at times, making the coffee cups bounce as they try to intimidate me. You feel that pressure. I’m not saying I wasn’t influenced by that. Of course you feel that pressure.

It was a little bit of a different a debate in 2008. Interestingly, while I was under that pressure, so was Ed Stelmach, who was the leader of the Progressive Conservatives. And so were the New Democrats. All three political parties took a stand in 2008 for higher royalties. I’m not a hero in this at all. You feel those pressures.

But gosh, I wish that the New Democrats hadand just taken a little bit more of an independent, arm’s-length tact from the industry when they got elected.

You conclude the book by pointing to the zero-emissions movement and the opportunity in that for people to coalesce and make bigger demands of governments. Are there examples that you look to around in Canada or around the world which give you hope that this could work?

Sure. British Columbia, when they brought in their initial carbon tax 10 or so years ago, were world leaders.

You saw a fairly rapid response: emissions began to decline for a period of time. Then, the lobbyists and oil industry got their hold on the governing party and blocked advances in the carbon tax. I take heart from the election of the Greens to their position in holding the balance of power in B.C.

Europe is miles ahead of Canada in driving down emissions.

I don’t expect change to come inside Alberta now. Change will be driven into Alberta from outside. It’s going to be very painful for this province, because we have not prepared for the obvious reality that’s coming, which is the end of the fossil fuel industry. It will be phased out.

And we will either manage that phase-out or we will fight it. And if we manage it, then there’s a healthy transition ahead. If we fight it, it’s just going to be awful here.

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

By Arie Ross for Dogwood.

Why did the BC Liberals prioritize a project that could harm local communities, the Fraser River and farmland?

On the 601 bus to my hometown of Tsawwassen, I watch as bulldozers uproot the evergreens adjacent to the farmland along Highway 99, making way for a costly ten lane bridge built in the interests of industry. I imagine dredgers forcing themselves on the river bed, scraping at the sediment and defiling the critical salmon habitat.

The colossal pet project of the BC Liberal party — the controversial $3.5 billion Massey Bridge forced upon unwilling municipalities — is just another reason why we need a corruption inquiry in B.C.

Why was this $3.5 billion project, which impacts the health of my family and my neighbours while bulldozing food producing farmland, so important to the BC Liberals? Massive donations from proponents and prospective contractors to their party could hold the answer.

While our new NDP government suggests we defer to the mayors of affected communities on the fate of this bridge — which would yield a resounding no — construction on the Massey tunnel replacement project has already begun. For residents of Delta and Richmond, it is an unwelcome hangover from the BC Liberal reign.

Experts question the usefulness and safety of this project. How is it meant to relieve congestion when it includes minimal plans for public transit? I shudder at the fact the municipalities and citizens affected asked for a comprehensive environmental review under the Canadian Environmental Assessment Act (CEAA), but the Trudeau government denied the request. Apparently residents south of the Fraser don’t deserve to know about the impacts a massive bridge would have on their health and safety.

And while those who make their home in Delta, like my family, face unknown risks from increased coal barges and LNG tankers, many companies will benefit from the removal of the Massey Tunnel.

Making Room for Tankers on the Fraser River

Unlike the tunnel, a new bridge would make room to dredge the Fraser River, allowing for larger ships to reach ports upriver and spur on further development for private gain.

Fraser Surrey Docks, the company still hoping to build a thermal coal export terminal on the Fraser River, would certainly benefit from a bridge. Maybe that is why they gave $14,575 to the provincial Liberal party while they were in control of the decision. They also lobbied the feds to have the tunnel removed so they can move full ocean-going vessels of coal down the river, past residential neighbourhoods, over fish habitat, and out to sea.

Another company with a massive stake in this bridge is Fraser River Pile and Dredge, who donated $24,876 to the BC Liberals. When the river needs to be dredged for the construction of the bridge after the tunnel is removed, this is the company for the job. They are the largest dredging company in the country and are already contracted by the Port of Vancouver to routinely clear out the Fraser.

FortisBC is looking to expand their fracked gas operations at the Tilbury LNG facility and bring more tankers up the Fraser. The removal of the tunnel would allow for larger, fuller supertankers to reach their facilities. They donated $186,024 to the BC Liberals and will spend $400 million on their expansion project in Delta.

The #MasseyBridge: A Boondoggle Bought by #BigMoney? https://t.co/h4okmfNTgA #bcpoli #corruptioninquiry @dogwoodbc

— DeSmog Canada (@DeSmogCanada) August 23, 2017

Bridge Bidders are Also Big Donors 

In October 2016, the shortlist for contractors to design and build the Massey Bridge was released, revealing Gateway Mobility Solutions, Lower Mainland Connectors and Pacific Skyway Partners as the lucky bidders:

One of the equity partners of Gateway Mobility Solutions, Aecon Group (Canada’s largest publicly traded construction company), donated $32,500 to the BC Liberals. Flatiron Constructors, one of the design-build contractors, also donated $12,800. In total, the Gateway Mobility Solutions partnership has donated $45,300 to the BC Liberals since 2009.

Together, the Lower Mainland Connectors group donated $200,895 to the BC Liberals. $111,675 of this came from Kiewit Contractors, which is headquartered in Nebraska and is one of the largest private contractors in the world. BA Blacktop, one of the design-build contractors for this team of bidders, also donated $72,170.

It should be noted that this contractor group also includes the Macquarie Group, the Australian company that owns Fraser Surrey Docks. Macquarie donated $17,050 to the Liberals to try to secure all of their interests.

The final contender for the contracts, Pacific Skyway Partners, includes SNC-Lavalin, a company that has been banned from applying for World Bank contracts and involved in corruption scandals in Quebec. They also conducted the ludicrous environmental study of the Fraser Surrey Docks coal transshipment project deemed entirely inadequate by health care providers and municipalities. This occurred after SNC-Lavalin bought a 23 per cent share in AltaLink, an electricity transmission company from Macquarie Essential Assets Partnership — a member of the Macquarie Group, again owners of Fraser Surrey Docks.

SNC-Lavalin has donated $27,647 to the BC Liberals. Their former board chairman, Gwyn Morgan, has personally donated more than $245,500. His wife, Patricia Trottier, donated $15,000 to the party. Morgan is also the founder of the oil and gas company EnCana, a company that has donated $1,243,751 to the BC Liberals. Further, Morgan was a key advisor and confidant of Christy Clark.

Big Bridge, Big Money

All this begs an important question: Is the new Massey bridge really in the interest of commuters, or industry insiders with massive pocket books and a cheque with the BC Liberals’ name on it?

For too long, it has looked like Big Money has bought political favours in this province. We need to know for certain if decisions, like building the Massey Bridge, were made under the influence of political donations. If approvals were granted to favour donors at the detriment of British Columbians’ health and safety, they need to be sent back to the drawing board and reassessed.

There is a way to develop a good transit plan without jeopardizing the safety of local communities, the health of the Fraser River and the animals that rely on it, all while protecting local farmland. No one denies the need for a new crossing of the Fraser, but there are certainly alternatives to a $3.5 billion dollar bridge wrapped in a bow for industry that taxpayers will be forced to pay for. Even certain Longshoremen have suggested that there are other options to ease congestion without removing the tunnel.

Big Money has secured its interests over those of British Columbians for long enough. Our government not only needs to act on their promise to ban Big Money fast — they need to begin a corruption inquiry to dredge up the facts and stop these harmful projects before it’s too late.

Image: Artist's rendering of the Massey Bridge. Photo: Government of B.C.

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