In a 6-3 decision, the Supreme Court of Canada has ruled that the federal government’s national price on carbon pollution is entirely constitutional, putting an end to a two-year battle with conservative premiers over the policy. 

In the 405-page decision, Chief Justice Richard Wagner, speaking on behalf of the majority, found the Trudeau government’s 2018 Greenhouse Gas Pollution Pricing Act — which requires provinces to meet minimum national standards to reduce greenhouse gas emissions by applying a price on the use of fossil fuels by large industries or consumers fueling their cars — “is critical to our response to an existential threat to human life in Canada and around the world.”

The decision found that the federal carbon pricing plan would ensure greenhouse gas emissions are addressed effectively across the country. “The provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions,” Wagner wrote. “While the provinces could choose to cooperatively establish a uniform carbon pricing scheme doing so would not assure a sustained approach …”

The majority ruling spoke about climate change in the strongest possible terms, noting that all parties involved in the case, including the provinces who challenged the law, agreed that climate change was “an existential challenge.” Wagner went one step further to describe climate change as “a threat of the highest order to the country, and indeed the world” that will cause “significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, in coastal regions and on Indigenous Peoples.” The ruling added that “the undisputed existence of a threat to the future of humanity cannot be ignored.” 

This matter came before the Supreme Court after Alberta, Ontario and Saskatchewan independently asked their provincial appeal courts to rule on the constitutionality of the climate law. Over two days of hearings last September, these three provinces argued the carbon pricing legislation gave Ottawa too much decision-making power over almost everything, as virtually all human activity has an impact on climate. To make the point, the lawyer representing Saskatchewan called it “Big Brother legislation.” The provinces collectively said they are best able to manage their own emissions with policies tailored to their economies and consumer habits. 

The Supreme Court was tasked with determining whether the federal government has the authority to implement a national carbon pricing program — or if doing so unlawfully overruled the independent powers provinces have to make decisions about the climate. At issue is section 91 of Canada’s 1867 Constitution, which gives the federal government the power to make laws on issues of national concern that are not outlined in the constitution. (This power is referred to as the “Peace, Order, and Good Government, or POGG, power.) Climate change is not addressed by the 154-year-old document.  

While this is just a reference case where the decision is purely advisory, it does validate the federal government’s price on pollution. Conservative premiers expressed disappointment in the decision, but there were also early signs of cooperation. Saskatchewan Premier Scott Moe announced a new climate plan and said he would work with Ottawa to implement a provincial carbon pricing scheme. 

What the Supreme Court ruling actually says about climate change and carbon pricing

The majority decision finds that the federal carbon pricing legislation doesn’t limit provincial authority to manage their emissions, as has been argued by six provinces (New Brunswick, Manitoba and Quebec supported this argument as intervenors), but considers “the adequacy of existing provincial regulations” in reducing greenhouse gas emissions.

The legislation functions “only to address the risk of increased GHG emissions that would otherwise ‘slip through the cracks’ as a result of one province’s failure to implement a sufficiently stringent pricing mechanism,” Chief Justice Wagner writes. 

He notes that between 2005 and 2016, Canada’s total emissions fell “by only 3.8 per cent;” while Ontario, Quebec and British Columbia made significant decreases, these were “largely offset by increases of 14 per cent in Alberta and 10.7 per cent in Saskatchewan.” Because of this, Canada “failed to honour its commitment” to international treaties like the Kyoto Protocol. 

Wagner also highlighted that provinces like Saskatchewan, Ontario and Alberta, which together account for 71 per cent of Canada’s total emissions in 2016, withdrew from the 2016 Pan Canadian Framework on Clean Growth and Climate Change, a commitment by all provinces to adhere to a national carbon price to reduce GHG emissions. Their decision to opt out of the cooperative agreement “illustrates the stark limitations of a non-binding cooperative approach” and would have “grave consequences,” he wrote. For one, it doesn’t guarantee a decrease in national emissions, “as businesses could simply relocate to non-cooperating provinces.” 

As a result, Wagner, speaking for the majority in favour, says the legislation is constitutional as it serves to ensure every province is acting effectively to reduce emissions. “If each province designed its own pricing system and all the provincial systems met the federal pricing standards, the [Greenhouse Gas Pollution Pricing Act] would achieve its purpose without operating to directly price GHG emissions in the country,” he wrote. 

The majority ruling stressed that the price on pollution was not a “carbon tax,” the term that has been made popular by dissenting premiers and policymakers. It is instead a constitutionally valid regulatory charge.

Which Supreme Court justices didn’t agree with the carbon price ruling and why?

Wagner’s remarks make sure to define the government’s POGG power in this case very carefully, restricting his comments to only the carbon pricing plan and how it can be used if a province fails to produce an effective one of its own. Not everyone agreed with his measured decision: Justice Malcolm Rowe and Justice Russell Brown wrote lengthy dissents, arguing the majority decision would give Ottawa precedent to set minimum national standards in other areas of provincial jurisdiction, “including intra-provincial trade and commerce, health, and the management of natural resources.” 

“This is a model of federalism that rejects our Constitution and rewrites the rules of Confederation,” Brown wrote. “It is bound to lead to serious tensions in the federation.”

Justice Suzanne Cote dissented in part. She agreed that climate change is an issue of national concern but questioned the “unlimited power” the federal government was using to impose the national price on pollution across provinces. 

How Canadian leaders and stakeholders are reacting to the carbon price ruling

The decision comes three months after the federal government extended its carbon pricing plans up to 2030, when the price will increase to $170 per tonne. On April 1, the price for consumers is set to increase to $40 per tonne. Rebates to taxpayers will increase in kind, and will be paid quarterly by direct deposit beginning in 2022. Industry would see a similar increase through a separate output-based pricing system. 

Lawyers and climate experts alike hope that the Supreme Court’s decision will end the longstanding political football and stay the power of carbon pricing across the country, however, much remains to be seen. 

Lisa Demarco, a senior partner and CEO at Resilient LLP who intervened in this case on behalf of the International Emissions Trading Association, told The Narwhal the decision “ends any looming business uncertainty around carbon pricing in Canada and thereby requires corporations to diligently respond to the threat of climate change.” Demarco said the majority ruling was “a fairly ringing endorsement that carbon pricing is a valid mechanism to address climate change” that will be relied upon across the world.  

Ecojustice’s Josh Ginsberg, who intervened on behalf of the David Suzuki Foundation, told The Narwhal the decision delivered “the strongest language we have seen on climate emergency from any court in Canada or any court around the world” and solidified carbon pricing as “an integral part of the solution, not just a policy tool.” 

“I really hope provinces don’t view this as a loss or a defeat but as an opportunity to take a breath and fight this existential challenge together as one country,” Ginsberg said. “This decision could indicate to the world that Canada has a serious plan for climate change.” 

Others are less certain that this changes anything. Aaron Wudrik, federal director of the Canadian Taxpayers Federation, which intervened against the carbon price, told The Narwhal while they accept the mechanism is constitutional, “we will continue to oppose it because it’s bad policy.” Wudrik said “just because it’s legal doesn’t mean it’s the right thing to do.” 

Conservative provincial leaders across the country conveyed a similar sentiment. While all acknowledged the validity of the decision, they remained undeterred in their opposition to the carbon price and highlighted the three dissenting opinions. The premiers continued to use the term “carbon tax” despite the Supreme Court’s advice against it.

But the winds may have shifted a little. Saskatchewan Premier Scott Moe told reporters he was still resolved in his conviction “that the federal carbon tax is bad environmental policy, bad economic policy, and simply wrong.” But he also released details of a new made-in-Saskatchewan climate plan that includes a carbon pricing regime for fuel similar to the one in New Brunswick, which has been approved by Ottawa. 

Moe also said he would be working with the federal government to comply with the carbon price act. He asked Ottawa to deliver the province’s share of any revenue coming from low-carbon economy initiatives “in the spirit of collaboration,” which he said would be reinvested in green projects. “This was certainly the right fight to have,” Moe said, “and it will certainly precipitate some further discussion. 

“I think this is a good thing that we have a system in place to question policies by the federal government,” Moe added. “I’m not going to spend time arguing with a referee when the game is done.”

Moe invoked the 2016 Vancouver Declaration in his comments — the last time all provinces agreed to a climate strategy — and asked the federal government to “have a real hard look at the dissenting opinions” and take steps to “reassess how they engage with the provinces and how they enacted a policy in a really divisive way and not do that in the future.”

Alberta Premier Jason Kenney told reporters he was “obviously disappointed” that the Alberta Court of Appeal’s decision did not bear more weight in the decision. “To me, it’s inconceivable that a court would allow the federal government to pull a rabbit out of the constitutional hat to say that the clear meaning of the Constitution over provincial jurisdiction on resources does not exist.” When asked if he would consider a provincial carbon tax in the wake of the ruling, Kenney didn’t dismiss the idea outright, saying he would consider whatever approach “imposes the least damage on jobs and Alberta’s economy.” 

Manitoba Premier Brian Pallister told reporters he was encouraged to see the federal government didn’t have unlimited power to impose “Ottawa’s will” on the province.  Pallister vowed to push ahead with the province’s separate legal challenge currently making its way through the courts.

Ontario Environment Minister Jeff Yurek responded by lauding elements of the province’s environment plan, including increasing renewable content in gasoline and a low-carbon hydrogen budget. It does not include a pricing scheme.

Federal Environment Minister Jonathan Wilkinson issued an immediate statement celebrating the decision as “a win for the millions of Canadians who believe we must build a prosperous economy that fights climate change.” 

“The question is whether this decision will put an end to the efforts of Conservative politicians fighting climate action in court, and whether they will join Canadians in fighting climate change,” he told reporters. 

Federal Conservative leader Erin O’Toole repeated his promise to repeal the carbon tax on consumers, but has indicated he’ll create a pricing system for large industrial emitters. He may face an uphill battle though, as Conservative Party members voted down a resolution recognizing “climate change is real” at the party’s annual convention last week.  

“We need to have an opposition party in government that is serious about climate change,” Wilkinson told reporters.

Andrew Brander, a former federal and provincial Conservative staffer and consultant with Crestview Strategy, told The Narwhal the Supreme Court ruling forces the dissenting premiers’ hands. They will now “want to control what [the carbon price] looks like in their own province, come up with their own solutions for their respective industries and find a way to control their portion of the revenue.” 

“This issue has been so politically charged for the last decade that it’s impossible to expect this final court ruling to settle it immediately,” Brander said. “I don’t think the premiers are going to change their tone about how unfair this is … This decision will become a poster child they can put up to make their case about their independence to make policy moving forward.” 

Meanwhile, in the U.S., the American Petroleum Institute endorsed carbon pricing for the first time, marking a major shift in the oil and gas sector. 

Merran Smith, executive director at Clean Energy Canada, said “any serious climate plan needs a backbone that does the heavy lifting, and carbon pricing is widely considered the most cost-effective way to reduce emissions. It’s the intersection of climate ambition and smart economic policy.”

Canada’s carbon price: how did we get here? 

The carbon price is the centrepiece of the Liberal government’s 2018 Greenhouse Gas Pollution Pricing Act, which aims to exceed Canada’s 2030 emission-reduction commitments under the Paris Agreement. The levy is a Nobel-Prize winning idea that is widely acknowledged as the most effective and economical way to reduce emissions. 

The government’s legislation asked provinces to establish pricing mechanisms that met the minimum conditions set out by the federal government. If they didn’t, Ottawa would impose a pricing scheme of its own known as a “backstop,” the revenues of which would be returning through tax rebates to residents of those provinces. 

The carbon price had broad national support when it was first discussed as a key climate-change tool two years before the legislation was formally introduced, with 11 of 13 provinces agreeing to adopt some version of it at the Pan Canadian Framework. However, this near-consensus unravelled in 2018, with the carbon price becoming a point of contention between Liberals and Conservatives across the country. 

In July of 2018, Ontario’s newly-elected Progressive Conservative government (illegally) withdrew from its cap and trade system with Quebec and California; (that carbon pricing scheme allowed industries in these jurisdictions to buy and sell emissions permits depending on the amount of pollution they produced. In October, Manitoba refused to meet the federal conditions for carbon pricing. In November, Ottawa rejected New Brunswick’s carbon-pricing plan. In April 2019, the federal government applied the carbon price to the provinces whose carbon pricing plans didn’t meet its minimum standards: Ontario, Alberta, Manitoba and Saskatchewan, which has Canada’s highest per-capita carbon emissions and has opposed any price on carbon emissions for years. 

The federal government responded by implementing a carbon price in Saskatchewan, Manitoba, Ontario and New Brunswick in April 2019. A month later, newly-elected Alberta Premier Jason Kenney pledged to get rid of the carbon pricing program, arguing it would devastate the province’s oil and gas economy. 

This matter came before the Supreme Court after Alberta, Ontario and Saskatchewan independently asked their provincial appeal courts to rule on the constitutionality of the climate law. 

Ontario’s top court upheld the federal law in a 4-1 decision. Saskatchewan’s top court also ruled in favour of the federal law, 3-2. In judicial firsts, both courts recognized that climate change was an emergency that presented “a genuine threat to Canada” and recognized the federal government’s jurisdiction to tackle it through carbon pricing.

Only Alberta’s top court ruled against the federal carbon pricing scheme, calling it “a constitutional Trojan horse” that would give Ottawa the power to regulate almost everything, because almost everything produces greenhouse gas emissions. 

Appeals against the pricing plan by Quebec (which wants to maintain and expand its own cap and trade system), Manitoba (which has its own flat carbon pricing regime), and New Brunswick (which wants to create an alternative framework for large emitters) also pushed the issue to the Supreme Court. Only British Columbia, which has had a carbon levy in place since 2008, intervened in support of the federal government. 

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Despite the federal government’s commitment to exceed its 2030 climate targets, British Columbians say it’s not doing enough to tackle the climate crisis.

A new survey found that 41 per cent of British Columbians think the federal government is not paying enough attention to the environment. And when asked about 10 specific environmental issues, at least three in five British Columbians said they are personally concerned about five of them: the pollution of rivers, lakes and reservoirs; air pollution; the pollution of drinking water; climate change and the contamination of soil and water by toxic waste. 

“The federal government absolutely needs to do more,” Nikki Skuce, director of Smithers-based Northern Confluence, told The Narwhal. “British Columbians really care about water, particularly those of us who live close to some of these freshwater systems in places where salmon are an integral part of the culture and communities.”

Mario Canseco, president of Research Co., the company that conducted the survey, said a key takeaway from the poll is how climate change is becoming a more front-of-mind issue, with 63 per cent of British Columbians saying it’s a personal concern.

Prime Minister Justin Trudeau makes an announcement in June 2019. According to a new survey, 41 per cent of British Columbians think the Liberal government is not paying enough attention to the environment. Photo: Adam Scotti / Prime Minister’s Office

“We usually see the problems that can have an immediate impact in our lives getting a higher rating,” he said, adding that issues that are perceived as not affecting us yet, such as deforestation and overfishing, typically get a lower rating. “But now we have global warming at a level that is similar to what we see for pollution.”

Pollution and toxic waste from industrial activity a key concern 

Around 65 per cent of respondents said they were personally concerned about the pollution of rivers, lakes, reservoirs and drinking water, and 60 per cent said they were concerned about the contamination of soil and water by toxic waste. In northern B.C., where many of the province’s industrial projects take place, those numbers were even higher, with at least 80 per cent of people saying they’re concerned about water pollution and toxic waste. 

“When you live near it, you want to protect it,” Skuce said. “We need to do a better job of taking care of our rivers and lakes and creeks because they really are the veins that travel through this region.” 

It’s no surprise that British Columbians — and particularly northern British Columbians — care about water and the effects of industrial contamination. In 2014, B.C. made international headlines when the tailings dam at the Mount Polley mine in the central interior broke and spilled 24 million cubic metres of contaminated waste into the surrounding water systems. Since the disaster, the provincial government has done little to improve the laws and regulations to prevent similar disasters. 

Mount Polley mine’s tailings pond and tailings pile. Production was ramped up at the Mount Polley mine before a tailings pond breached in 2014, causing one of B.C.’s worst environmental disasters. Photo: Louis Bockner / The Narwhal

Skuce said the federal government’s role in protecting water lies in legislation and policies that guide provincial decisions on resource extraction and development. 

Last year, the federal government modernized its Fisheries Act to strengthen protection of fish habitat and support restoration work, including rebuilding depleted fish populations. This follows a previous commitment to protect Pacific salmon through the wild salmon policy, which was developed in 2005 to address declining salmon populations. But according to Skuce, the federal government has yet to fully implement the policy and subpopulations of species like sockeye are on the brink of extinction throughout the province.

“As somebody who works on salmon conservation, I think it’s really important that the federal government actually steps up and implements the Fisheries Act that it updated last year and follows through on a bunch of its commitments to restore and protect habitat,” she said. “And within that, there’s the outstanding commitment to implement the wild salmon policy.” 

In 2019, the federal government modernized its Fisheries Act to rebuild depleted fish populations, such as sockeye salmon, pictured here. However, according to Nikki Skuce, director of Smithers-based Northern Confluence, the government has yet to fully implement the policy. Photo: J Armstrong / University of Washington

Aaron Hill, executive director of Watershed Watch Salmon Society, said the Fisheries Act can help address the concerns of British Columbians reflected in the survey, but it has to actually be followed. “We need both levels of government to step up and, at the very minimum, fully implement the laws and policies that they already have on the books.”

He also said the BC NDP’s commitment to develop a water security strategy, which would protect watersheds throughout the province, will require collaboration and buy-in from the federal government. “It’s really important that the prime minister and Premier Horgan support that work.”

Skuce agreed and added that protecting water from pollution also requires legal reforms at both the provincial and federal levels. Despite federal mandates to protect salmon habitat, for example, provincial laws permit mining activity in salmon watersheds. 

“There’s a need to enforce our existing laws and close some loopholes on some of them,” said Skuce. 

Green and NDP voters more likely than BC Liberal voters to care about climate change 

The poll was conducted just after last month’s provincial election and respondents were asked how they voted. Nearly three-quarters of voters who supported the BC Greens or the BC NDP said climate change was a personal concern, but for BC Liberal voters, it was about half. 

“If you take a couple of Liberal party voters, one of them is going to say, ‘Oh, I don’t care about global warming.’ That’s pretty shocking,” Canseco said.

He found that divide particularly interesting because it was the Liberal government that created the provincial carbon tax in 2008. 

More than a third of British Columbians surveyed, and more than half of northern British Columbians, believe the introduction of the carbon tax has made people more mindful of their carbon consumption and led to a change in behaviour. Photo: Deb Rousseau

“It’s been 12 years that we’ve had the tax and now you have the BC Liberal voter becoming decidedly less environmentally friendly,” he said. “It’s definitely something that is troublesome. I think they’ve been moving too far to the side of industry in many ways and forgetting that this is about the future of the planet as a whole.”

More than a third of British Columbians surveyed believe the introduction of the carbon tax has made people more mindful of their carbon consumption and led them to change their behaviour, a proportion that rose to more than half of respondents from northern B.C. Almost two-thirds of British Columbians said the tax has not negatively impacted their finances.    

For Skuce, government action on climate change means more than implementing carbon taxes and protecting watersheds. 

“We need to stop subsidizing pipelines and fossil fuels at both the federal and provincial level,” she said.

British Columbians give provincial, municipal governments higher rating 

When asked how they felt about the provincial government, 35 per cent of British Columbians said they thought the province was not focusing as much it should on environmental issues and 38 per cent said their municipal governments also weren’t doing enough. 

“British Columbians perceive their municipal and provincial governments in a more positive light than Ottawa, especially with all of the commitments that have been announced,” Canseco said, referring to the NDP election promises to strengthen environmental protections in B.C. “We’ll have to wait and see if they get a better rating in the future, and also if the B.C. government keeps this seemingly high rating now that the Greens are no longer as influential in their policies.”

Hill and Skuce said given British Columbians’ concerns about water pollution, the NDP’s promise to create a water security strategy likely contributed to the public perception that the province is doing more than the federal government to protect the environment.

When asked about the provincial government, led by Premier John Horgan, 35 per cent of British Columbians said they thought the province was not focusing as much as it should on environmental issues. Photo: BC NDP / Flickr

But both conservationists said this perception may be somewhat skewed in part due to a lack of education. Skuce called it “jurisdictional illiteracy.” 

“For instance, the federal government has committed to increasing protected areas of land and water to 30 per cent by 2030, and the Government of British Columbia has been reluctant to support that,” she said, pointing out that the province failed to meet its 2020 targets of protecting 17 per cent of land and 10 per cent of marine areas. 

Similarly, the federal government has clearly defined legislation on species at risk, but as The Narwhal reported last year, B.C. still hasn’t enacted provincial legislation to protect threatened and endangered species like caribou.

Hill said governments at all levels need to step up and start working harder, collaboratively, to address the concerns of the public.

“Even though water licensing and specific on-the-ground management of water falls to provincial and local governments, the federal government approves things that affect water like pipelines and hydropower projects and they have a lot of regulatory authority as well,” he said. 

Updating federal legislation could lead to better environmental protection

Skuce said one of the ways the federal government could strengthen its commitment to protect the environment is by updating the Canadian Environmental Protection Act, which regulates the use of toxic substances and is meant to prevent pollution and protect the environment and human health. The act was legislated in 1999 and has had minor amendments over the years.

Early this year, the environmental watchdog Ecojustice called on the Trudeau government to overhaul the act to reflect current science and “reduce our exposure to pollution and toxic chemicals.” 

Skuce said the act could provide the federal government with the “tools to help protect our watersheds through environmental and climate action.”

The federal government has released new legally binding legislation that commits Canada to reaching net-zero emissions by 2050. Photo: Justin Trudeau / Flickr

Hill said the federal government made significant commitments to environmental protection last year when it promised to create a new Canada Water Agency in its mandate letter to the minister of Environment and Climate Change Canada. The letter also promised to strengthen the Canadian Environmental Protection Act and introduce new greenhouse gas emissions reduction programs. Earlier this month, the Trudeau government introduced a bill to support its goal of reaching net-zero emissions by 2050. The legislation would require the minister of environment to set five-year emissions reduction targets starting in 2030, along with a plan for meeting those targets.  

Hill said that in addition to the commitment to create a Canada Water Agency, governments already have the means to strengthen environmental protection.

“The premier and the prime minister [need] to give their cabinet ministers and their staff a clear mandate and adequate resources to actually do their jobs and implement the laws that are already on the books,” he said. “Whether it’s mining or fracking or clear-cut logging or extraction of water for various purposes, there’s a whole lot of room for improvement. And people are right to expect that the government will do better.”

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Environmental groups welcomed the introduction of climate accountability legislation in the House of Commons Thursday but warned the bill as written doesn’t have the teeth needed to ensure Canada meets its climate targets. 

Bill C-12 requires the Minister of the Environment to set five-year emissions reductions targets starting in 2030 in order to reach net-zero emissions by 2050 and to develop plans for meeting each goal. 

But if the government fails to meet one of its legislated targets, the minister is only required to explain why and describe the actions the government is taking or will take to meet it.

While the public reporting requirements could add pressure on the government to take needed climate action, “to be truly accountable, the bill needs to go one step further and actually require the minister to ensure that those plans will meet the specific targets,” said Anna Johnston, a staff lawyer with West Coast Environmental Law.

Lawyer wants legal requirement to meet targets made clear in legislation

Canada has so far failed to meet its international climate targets and the federal government’s own data shows the country is currently on track to miss its 2030 target as well.

Prime Minister Justin Trudeau reiterated his commitment Thursday that Canada would not only meet, but exceed its existing 2030 emissions reductions targets and said “ultimately the accountability for government’s actions or inaction is from Canadians themselves.”

Canada has failed to meet its international emissions target and also appears to be on track to miss its 2030 target. In response to the federal government’s new net-zero emissions legislation, experts are calling for more near-term targets and accountability measures. Photo: Garth Lenz / The Narwhal

Johnston, however, said “Canadians shouldn’t bear the burden of making sure their elected representatives do what they say they will do.”

Accountability for establishing targets and meeting them should be enshrined in the legislation so the government can be held to account in the courts, she said.

As it stands, the proposed bill doesn’t quite meet the standards set by the United Kingdom’s climate accountability legislation, which, according to Johnston, sets clearer requirements for the government to follow expert advice, establish carbon budgets and achieve targeted emissions reductions.

“It is a good first step,” Johnston said, but she and others hope the legislation will be strengthened before it becomes law.

Environmental groups call for 2025 climate target

Catherine Abreu, executive director of Climate Action Network Canada, was among those who called for the government to add a 2025 emissions reduction target to the bill and to set a more ambitious target for 2030.

“If this piece of legislation is going to drive climate ambition — and that’s what we need it to do — it needs to do that in the near-term, not just in the long-term,” she said.

If the bill passes as written, the federal government will have up to nine months after the legislation is enshrined to establish a 2030 target and to develop a plan to meet that goal.

But the Trudeau government would not have to report on its own progress toward meeting that goal during its current term, as the first progress report would only be required by the beginning of 2028.

The government’s plans to meet its emissions reductions goals will have to include a description of the key measures the government will undertake to reduce emissions and a description of relevant sector-specific strategies.

The bill also requires the government to report publicly on its progress towards each five-year target and further requires the Commissioner of the Environment and Sustainable Development to assess and report on the government’s progress at least once every five years.

The legislation will also establish an expert advisory body to advise the minister on measures to reach net zero emissions. 

While Abreu is happy to see the creation of an expert committee included in the bill, she noted that expert advice is needed to inform the establishment of interim targets and development of plans to reach those targets as well as the government’s ultimate 2050 net-zero emissions goal.

Dale Marshall, national climate program manager at Environmental Defence, also raised concerns that the bill doesn’t require regular assessment of the government’s progress by independent experts.

“The climate accountability legislation introduced today unfortunately has major deficiencies that will, at best, hold future federal governments accountable for Canada’s climate commitments,” Marshall said in a statement. 

Meeting Canada’s climate targets requires support from provinces, territories

Experts say there is an urgent need to address the role provinces and territories have to play in meeting Canada’s legislated climate targets.

“That’s a big barrier to progress on climate change in this country and something that we are going to need to confront,” Abreu said.

She noted there’s a “huge variation” in the climate ambition of different provinces.

“Figuring out how we balance the level of effort fairly across the country is not an easy conversation to have but it is a conversation we are going to have to have if Canada is going to be a good global player,” she said.

But shifts in the global economy could make the prospect of major emissions reductions more palatable across the country. 

According to the United Nations, 120 countries, more than 1,000 businesses and 45 of the largest investors have so far committed to achieving net-zero emissions by 2050.

Sara Hastings-Simon, a research fellow at the University of Calgary’s school of public policy, said that reality could shift the tone of the conversation in Canada.

“If the world is net-zero in 2050, then it’s not a burden to have an economy that is aligned with that net-zero world,” she said.

“It’s really a requirement in order to have a successful, vibrant and prosperous economy.”

Gas flaring in Alberta. The new legislation would require support from all provinces and territories. However, there is currently a lot of variation between each jurisdiction’s climate ambitions. For instance, Alberta, Saskatchewan and Ontario have long opposed the federal carbon tax. Photo: Jasonwoodhead23 / Flickr

In Alberta for instance, which accounts for the largest share of greenhouse gas emissions amongst the provinces, the conversation may shift from the need to reduce oil production to meet Canada’s climate targets because demand for the product may decline naturally as the world moves towards its 2050 target, Hastings-Simon explained.

Alberta, along with Saskatchewan and Ontario, have long resisted the federal carbon tax, one of Trudeau’s key climate measures. The provinces challenged the constitutionality of the tax in a legal battle that reached the Supreme Court of Canada in September. The court has yet to issue a ruling on the matter.

But Alberta Premier Jason Kenney has also recognized that climate action is becoming more important for oil and gas companies to access capital, The Western Producer and CBC reported in October.

Climate accountability legislation provides certainty for businesses

Canada’s climate accountability legislation will provide certainty for businesses that greenhouse gas emissions reductions will remain on the agenda in Ottawa regardless of a change in government, some observers said.

Isabelle Turcotte, the federal policy director at the Pembina Institute, said Bill C-12 will enable businesses  “to confidently make investments needed today to create jobs in the competitive economy of tomorrow.”

“Nations are racing to attract billions of dollars in global capital that are being mobilized to generate a safe, low-carbon economy,” she said. “ [The] bill ensures that Canada will have a place at the starting line by eliminating business concern that policies put in place by a government today might be scrapped tomorrow.”

Bank of Canada Governor Tiff Macklem warned this week that Canada needs to move quickly to both minimize the threat climate change poses and to take hold of the business opportunities it presents.

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In his acceptance speech in the early hours of Monday morning, new federal Conservative Leader Erin O’Toole promised his party would be ready for an election as early as this fall. What he didn’t say is that the party’s fate in a federal contest could hinge at least in part on a plan to combat climate change. 

“If Conservatives want to win another national government they are going to have to find ways to win critical seats in the suburban belt around Toronto – the 905,” Ken Boessenkool, a former senior advisor to Stephen Harper, wrote in Maclean’s back in February.

Boessenkool pointed to a Leger poll sponsored by non-profit Clean Prosperity, which found climate change was the top issue for swing voters in the 905 considering the Conservative Party in the 2019 election. While the Conservatives have held O’Toole’s Durham riding since 2004, several other ridings in the Greater Toronto Area were key battlegrounds last year. 

The online survey of 3,013 respondents in the region surrounding Toronto found 28 per cent of voters who did not vote Conservative, but are either likely to or would consider voting Conservative, would be “more likely to support the party if it had a more credible climate plan, while only 11 per cent said they’d be less likely.”

“This suggests that one path for the Conservative Party in the 905: to make climate change a higher priority, and to present a plan to do so,” Boessenkool wrote.

While the COVID-19 pandemic and ensuing economic crisis have since taken hold, climate change remains a top concern for many Canadians.

“Our data suggests even today that the same number of people say climate change is a crisis that did prior to the pandemic and I don’t think this issue is going away,” David Coletto, CEO of Abacus Data, said in an interview with The Narwhal.

The Conservative climate challenge

The challenge for the new Conservative leader is “how do you at once speak to the fears and anxieties of people living in oil-producing parts of the country, while at the same time, make appeals to Quebec and large parts of Ontario that don’t rely on that industry for their well-being and in fact believe we need to be moving faster away from it,” Coletto said. 

“In a way, the Conservative Party is probably the best able to do that if it really wants to because it has a level of trust and an affinity with Canadians who live in those regions,” he said.

O’Toole has been a member of Parliament since 2012 but as a new leader, and a relatively unknown entity outside of Ottawa, he has an opportunity to introduce himself to voters. On climate change, Coletto said it will be important for O’Toole to do what former leader Andrew Scheer couldn’t: convince Canadians it’s an issue he cares about.

“We can as a country debate which policies are going to best get us there, but if at the start people don’t feel he’s committed to solving the problem, then nothing he says, no policy he puts forward, is going to be taken seriously,” Coletto said.

Experts say Erin O’Toole will need to put forward a stronger climate plan than predecessor Andrew Scheer if he wants to win over swing voters. Photo: Andrew Scheer / Flickr

Erin O’Toole’s climate commitments

O’Toole, who framed himself as the “true blue” candidate in the leadership race, is so far toeing the party line of the last election and vowing to “fight the carbon tax with every last breath” — at least when it comes to the Liberals’ broad-based tax as it applies to individuals.

The tax has been a major source of contention between the federal government and several provinces, including Alberta, Saskatchewan and Ontario, each of which went to court to argue that Ottawa is acting outside its jurisdiction. 

While O’Toole opposes a carbon tax, he does call for a price on industrial pollution.

O’Toole has promised to build a climate policy that uses market-based principles to incentivize economic change and invests in mitigation to protect communities while making industry — rather than individual Canadians — foot the bill for emissions. 

“If provinces want to use market mechanisms, other forms of carbon pricing, or regulatory measures, that is up to them. The federal government will be there to support them,” his platform reads.

At the same time, he says Canada has the potential to help lower greenhouse gas emissions globally by exporting nuclear technology and liquefied natural gas and investing in carbon capture and storage. He did not, however, include any specific emissions-reduction targets or commit to upholding Canada’s existing pledges.

O’Toole’s platform points to the potential of conservation initiatives, including incentivizing landowners to protect lands that play a critical role in sequestering carbon. 

The Narwhal requested an interview with O’Toole but was told the new leader would not be available before publication.

Erin O’Toole, Jason Kenney and Alberta’s oilsands

O’Toole, who was endorsed by Alberta Premier Jason Kenney in the leadership race, has made it clear that a Conservative government would continue to support the oil and gas sector while working with industry to develop a plan to reach net-zero emissions.

Kenney’s backing was seen as a significant boost for O’Toole, but it could make it more difficult for the new leader to implement robust environmental policies.

“Right now, standing up for Alberta, to many Albertans, is basically equivalent to not fighting hard to transition away from the fossil fuel industry,” Coletto said.

Alberta Premier Jason Kenney greets workers in Oyen, Alta., on July 3, after announcing the provincial government’s financial support of Keystone XL. Photo: Chris Schwarz / Government of Alberta / Flickr

O’Toole committed in his leadership platform to repeal Bill C-69 (the bill that enacted both the Impact Assessment Act and the Canadian Energy Regulator Act), pass a National Strategic Pipelines Act that would speed up environmental reviews for projects deemed “nationally strategic” and scrap the tanker ban on B.C.’s north coast — an environmental protection measure that was seen to play a role in the death of the Enbridge Northern Gateway pipeline project in 2016.

O’Toole, who was highly critical of blockades set up across the country last winter in support of Wet’suwet’en land defenders opposed to the Coastal GasLink pipeline, has also said he would criminalize rail blockades. 

His Freedom of Movement Act would make it illegal to block a railway, airport, port or the entrance to a business or household “to prevent radicals from shutting down the economy.” That echoes a law enacted by Kenney’s United Conservative Party government in June — legislation that is now facing a constitutional challenge.

Erin O’Toole ‘not a fan’ of UNDRIP

On Indigenous rights, O’Toole said he doesn’t support legislation to fully implement the United Nations Declarations on the Rights of Indigenous Peoples. 

Speaking to Assembly of First Nations National Chief Perry Bellegarde on his Ahkameyimok Podcast earlier this month, O’Toole said: “I’m not a fan of UNDRIP and here’s the reason: our Supreme Court of Canada developed the duty to consult and Indigenous engagement far before the UN did any work on this topic and I’m a bit of a UN reform-minded person.”

“I don’t want us waiting for somebody in New York to say we need to do better and we need better outcomes in terms of reconciliation,” he said.

In his platform, O’Toole says, “improving the relationship between the government and Indigenous communities must be a top priority.”

He says a Conservative government under his leadership would promote economic development for Indigenous peoples by holding a summit aimed at increasing the benefits and revenues Indigenous communities get from resource development.

O’Toole also commits to “break the logjam holding back land claim settlements and agreements on land title issues across Canada.”

Erin O’Toole’s emphasis on LNG

Sarah Burch, the Canada research chair in sustainability governance and innovation based at the University of Waterloo, said she’s “heartened” to see O’Toole acknowledge the urgent challenge the world is facing due to climate change.

But she is concerned about a number of the new leader’s platform planks — including O’Toole’s promotion of LNG as an alternative to coal.

O’Toole’s platform says, “we need to stop building new coal-fired power plants and accept that natural gas is the most realistic interim step that cuts emissions in half.”

While Burch said the combustion of natural gas may produce about half the emissions of coal combustion, that doesn’t consider the lifecycle emissions from the production and transportation of natural gas, which releases methane, a much more powerful greenhouse gas than carbon dioxide.

“Unless we grapple with the lifecycle emissions of natural gas and deal with methane fugitive emissions, it’s not going to be a huge improvement. And even more important in my mind is that it also then locks us into decades of still a fairly high carbon energy system,” she said.

Fact check: are B.C.’s LNG ambitions compatible with its climate goals?

As for his commitment to scrap the carbon tax, Burch said she appreciates that O’Toole’s focus is on reducing pollution from industrial sources and ensuring those responsible pay for their emissions. But she doesn’t think Canada will be able to reach its goals without consumers being part of the equation. 

“That’s part of what a carbon tax does,” she said.

Burch added that she’s surprised O’Toole didn’t emphasize the potential to produce renewable energy in Canada.

“Alberta in particular is well endowed with renewable energy resources,” she said. “There’s so much potential there that could really fuel or power a renewable or lower carbon energy transition in Canada and could create good, well-paying jobs, but he dismisses those pretty much outright as not a feasible or desirable solution.”

The risk of the climate policy u-turn 

At this early stage, there remains a level of uncertainty about what climate policies O’Toole’s Conservative Party will prioritize.

Andrew Leach, an energy and environmental economist at the University of Alberta, said “the platform that he ran on … was the vision to become leader of the party and what matters to all of us is what he would do as prime minister.” 

Leach did caution, though, that it’s the “jerk back and forth” on climate policies that can be really costly for the economy.

You don’t want one government to commit to phasing out coal, the next government to say “oh, just kidding” and a third government to flip back to phasing out coal, he explained.

“If we have broad agreement about where Canada is heading and differences about the nuts and bolts of getting there in terms of greenhouse gas emissions then we’re probably going to have better and more cost-effective environmental policy,” he said.

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As communities across the country braced for the worst of the COVID-19 pandemic, Canada’s oil and gas lobby was pushing the federal government to suspend pollution monitoring requirements and delay forthcoming measures to fight climate change in an effort to prop up the flagging industry.

In a 13-page letter to cabinet ministers late last month, the Canadian Association of Petroleum Producers (CAPP) asked the government to “adopt a do no harm principle with respect to regulations and the costs they impose on industry.”

But some observers say the proposed measures could in fact cause serious harm to Indigenous communities, the environment and public health.

“I was gobsmacked,” said Dale Marshall, the national climate program manager with Environmental Defence, which posted a leaked copy of the letter online last week. It has since been posted on CAPP’s website. 

While Marshall said some of the requests, such as a recommendation to defer greenhouse gas emissions reporting by a few months, are more reasonable given the challenges posed by the pandemic, he said others are “quite frankly, ludicrous.”

Among more than 30 recommendations, CAPP asked the federal government to suspend methane leak detection surveys for the duration of the COVID-19 crisis, defer monitoring required under the Fisheries Act for 2020 and suspend stack testing until non-essential workers return to work sites. 

The association also requested the federal government defer legislation on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), hold off on changes to the Canadian Environmental Protection Act, defer increases to the carbon tax until the recovery is underway, postpone additional climate measures, defer implementation of the clean fuel standard for three years, and exclude offshore exploration drilling and in-situ oil sands projects from federal environmental assessments.

A number of these requests “have little to do with the COVID crisis, aren’t imminent and are really offensive,” said Marshall.

Some could pose a health risk. 

“When they ask for a suspension of monitoring pollution that’s coming from smokestacks or a suspension of leak detection for methane, those are public health issues,” he said.

In a statement, CAPP said oil and gas companies have postponed non-essential work to limit the number of people at work sites and ensure social distancing to prevent the spread of COVID-19 and protect their workers.

“With fewer people on-site, it has been a challenge to meet all of the existing regulatory requirements in order to be compliant,” the association said. “Implementing temporary changes for certain low-risk regulatory requirements allows companies to focus on critical areas of operations and continue to ensure effective protection of the environment and our neighbours.”

CAPP added that it’s asking the government to “suspend, delay or reconsider” regulations or policies that could increase costs to industry.

For the oil industry, which has struggled under depressed prices for the last few years, 2020 brought another major hit. Oil prices plunged to record lows, at one point dropping below $0, driven by a decline in demand due to the COVID-19 pandemic and a price war that led to a glut in supply.

“Increasing the costs of operating will inflict further damage to our economy as we struggle to weather this crisis,” CAPP’s statement said. “Support for the industry now can position us to be a part of the foundation of recovery and the long-term rebuild of Canada’s social and economic structure.”

Why we’re seeing negative oil prices in Alberta and across North America

Observers expressed major concerns, however, that the industry association’s approach to economic recovery runs contrary to Canada’s commitments on climate change and Indigenous rights. 

Mary Ellen Turpel-Lafond, director of the Indian Residential School History and Dialogue Centre at the University of British Columbia, said the organization’s letter was “very disturbing.”

In particular, CAPP’s recommendation that the federal government delay legislation on UNDRIP is both “unwise” and “very aggressive,” she said.

CAPP said there needs to be a full understanding of how UNDRIP fits with Canada’s economic recovery “to ensure alignment with the do no harm principle” and asked the federal government to hold off on legislation until “meaningful consultation” is possible.

But Turpel-Lafond said “it’s not going to be possible to rebuild the economy if it means that you do not respect that Indigenous people on their territory have significant rights that need to be appropriately respected.” 

“We need to make significant progress on supporting First Nations governments, addressing land issues, making some fundamental shifts in Canadian society to make it a more fair and just society, and to say that that’s a project that we can’t do because of a pandemic is really a concern.”

Dayna Scott, an environmental law professor at York University, noted the irony in CAPP urging the federal government “to adopt this do no harm principle.”

“Certainly, I think Indigenous people experience harm when projects are approved over their objections and without their consent,” she said.

The industry association is using the COVID-19 crisis as cover to push forward longstanding demands, Scott added.

“The most blatant example is they took a shot at getting the offshore exploration drilling and the in-situ oilsands (projects) taken out of the environmental assessment regime and they don’t even offer a COVID-related rational,” she said. 

CAPP argues in-situ projects, which involve injecting steam through horizontal wells to pump oil to the surface, are already subject to provincial legislation and makes the case that offshore exploratory drilling is “routine” and the risks and mitigations are well known.

“I don’t think people want to see oil companies using the excuse of the pandemic to be able to have projects approved without public input,” Scott said.

“If anything, I think people have come to see this period of shut down as an opportunity for us to pause and think carefully about what kinds of activities we want to continue once it’s finished,” she said.

People don’t want to see a return to “a ramped-up version of an oil-based economy” coming out of the COVID-19 crisis, Scott added.

On the same day the federal government announced $1.7 billion to help clean up oil and gas wells and create thousands of jobs, Global News asked Prime Minister Justin Trudeau about CAPP’s letter.

In response, he said “just because we are in one crisis right now doesn’t mean we can forget about the other crisis, the climate crisis that we are also facing as a world, as a country.”

The federal government remains committed to exceeding its 2030 emissions targets and reaching net zero by 2050, added Moira Kelly, a spokesperson for Environment and Climate Change Minister Jonathan Wilkinson, in a statement to The Narwhal. 

11 things you need to know as Trudeau announces $1.7 billion to clean up ‘festering’ orphan and inactive wells

While Scott said Trudeau’s comments offer some comfort that the government won’t compromise on its high-profile commitments, such as the carbon tax, she worries about concessions on some of the more complex, lower-profile issues CAPP raised.

It’s a concern Marshall shares. “We’re going to have to keep an eye on a lot of these,” he said.

As it stands, Canada is projected to miss its 2030 target by 77 million tonnes — roughly the emissions produced by 16.6 million cars in a year ­— without new measures to reduce greenhouse gases. 

“The (Intergovernmental Panel on Climate Change) has made it crystal clear major GHG reductions are needed before this decade concludes or the world will find it exceedingly difficult, if not impossible to keep warming to 1.5 C,” said Jeffrey Brook, the scientific director of the Canadian Urban Environmental Health Research Consortium, in an email to The Narwhal.

He noted Canadians are already experiencing the consequences of climate change at the current level of warming. 

“It seems a shame that CAPP would thus try to gain three years of time in meeting critical clean fuel objectives and also weigh in on national carbon pricing plans,” said Brook, who is the lead author of a paper published last year that found some oilsands air emissions are underestimated. 

“This is three years we don’t have.”

‘Nowhere else to turn’: First Nations inundated by oilsands projects face impossible choices

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According to a new International Monetary Fund (IMF) report, Canada subsidized the fossil fuel industry to the tune of almost $60 billion in 2015 — approximately $1,650 per Canadian.  

Yet subsidizing one of the world’s wealthiest industries is folly.

Such subsidies not only hurt Canadian taxpayers and the economy — they also exacerbate the climate emergency.

Indeed, the G20 countries have already agreed that subsidizing fossil fuels is irrational in a warming world — and have called for action to eliminate inefficient fossil fuel subsidies that distort markets.

The problem is that subsidies encourage the production and wasteful consumption of fossil fuels all while impeding the shift to cleaner renewables. 

For these reasons, during the last election campaign Justin Trudeau sensibly committed to “phase out inefficient fossil fuel subsidies.”   

The problem is that government has not yet delivered on this promise.  

A new 2019 report by Canada’s Auditor General reveals government’s review of such subsidies is “incomplete and not rigorous,” is “not based on all relevant and reliable information” and “did not consider economic, social and environmental sustainability over the long term.”

Canada continues to subsidize the fossil fuel industry in myriad ways. First, it provides tax breaks under the federal Income Tax Act. For example, in 2015 the federal government introduced a new accelerated depreciation rate for equipment used in LNG facilities, which was a change proposed by the Canadian Association of Petroleum Producers.

A natural gas well pad with numerous wells for fracking near Farmington, B.C. The LNG industry in British Columbia is the recipient of numerous tax breaks and exemptions. Photo: Garth Lenz / The Narwhal

Second, government provides funding to the fossil fuel industry at favourable rates through direct financing and loan guarantees. A recent example is Export Development Canada’s administration of a nearly $5 billion loan to support the government’s controversial purchase and operation of the Trans Mountain pipeline.  

Ottawa has no plan to recoup that principal cost from industry — and is also subsidizing half the interest expense with taxpayer dollars.

Third, Canada provides direct funding to the fossil fuel industry through research, development and other services provided by federal agencies. 

For example, the federal government is paying $1.5 billion for the Oceans Protection Plan, an initiative to safeguard bitumen transport through the Port of Vancouver. This plan was necessitated by new oil tanker traffic — and should be paid for by oil shippers. 

Prime Minister Justin Trudeau visited Victoria in April of 2018 to reiterate the federal government’s support for the Trans Mountain pipeline and commitment to the Oceans Protection Plan. Photo: Carol Linnitt / The Narwhal

Yet now, taxpayers will pay up to $6 billion for the plan over the next 20 years.

Finally, there is the $60 billion subsidy that the IMF focused on — the “social costs” of carbon that governments pay, instead of fuel producers. 

Lacking adequate carbon taxes, governments continue to pick up the tab for the impacts of climate change — for example, repairing damage from extreme weather events, building new levees, sea walls and storm sewers and paying for wildfire control and increased health costs. 

The Fort McMurray wildfire in northern Alberta. MacEwan University estimated the cost of the 2016 wildfire, nicknamed “the beast” for its unpredictability, to be around $9 billion. Photo: pilotbiologist / Flickr

Fortunately, implementing carbon taxes and eliminating fossil fuel subsidies will pay off in the long run. 

The IMF estimates that elimination of global fossil fuel subsidies would reduce CO2 emissions by 28 per cent and reduce premature air pollution deaths by 46 per cent.

Equally important, the IMF concluded that elimination of subsidies would actually result in a net economic gain. Eliminating fossil fuel subsidies will be a win for the environment and for the economy.

In sum, Canada needs to implement robust carbon taxes to pay for the massive climate change costs that society now confronts.

Just as important, Canada must finally follow through on its specific promise to phase out inefficient fossil fuel subsidies.  

After all, claiming to fight climate change while subsidizing fossil fuels is as crazy as brushing your teeth while eating Oreos. It may make you feel virtuous, but it isn’t going to work.

Erin Gray and Calvin Sandborn QC are lawyers with the University of Victoria Environmental Law Centre, where Emilie Benoit and Sydney Hamilton are both law students.

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Hans Matthews spent much of 2012 criss-crossing Alberta and B.C. as a member of the federal-provincial panel conducting hearings on the contentious Enbridge Northern Gateway pipeline.

Those emotional hearings eventually overshadowed the proposal itself, leading then-natural resources minister Joe Oliver to accuse “environmental and other radical groups” of hijacking the process to “stop any major project, no matter what the cost to Canadian families in lost jobs and economic growth.”

Central to the controversy was opposition from First Nations along the route, many of whom felt they hadn’t been properly consulted during the development of the proposal. It was a social and political mess, all for a project that eventually died anyway. But Matthews, now the president of the Canadian Aboriginal Minerals Association, says it didn’t need to be that way.

“By embracing aboriginal knowledge, communities’ knowledge, it would have been a more balanced and fair process,” Matthews told The Narwhal.

Indigenous ways of life not contemplated by current system

That idea has come to the fore yet again with the Federal Court of Appeal’s rejection of the permits that allowed Kinder Morgan to proceed with its expansion of the Trans Mountain pipeline. In its decision, the court cited a lack of meaningful two-way consultation with First Nations in the planning process, along with other factors.

“Canada was required to do more than receive and understand the concerns of the Indigenous applicants,” wrote judge Eleanor Dawson in the court’s written decision. “Canada was required to engage in a considered, meaningful two-way dialogue.”

In other words, Canada pushed ahead with its own process, pausing only now and then to collect some feedback from First Nations. For the sake of those affected, the governments in charge, and even the project itself, it is now clear that that was not the right approach. But it didn’t have to be that way.

A new concept is emerging in the world of environmental decision-making: that it’s not enough for governments to loop Indigenous groups into their environmental assessments, and that instead Indigenous peoples should be able to conduct their own processes that run parallel to the non-Indigenous-led assessments.

A recent report by the Firelight Group, a consultancy founded to support the rights and interests of Indigenous communities, found Indigenous environmental assessments “rely on and protect Indigenous culture, language, and way of life in ways existing government legislated systems have either never contemplated or are still not accommodating.”

How is Indigenous assessment different?

In a traditional assessment, Indigenous peoples have some opportunity to contribute to the process and to be heard. But the decision is ultimately up to a government that may not share the worldview of the affected Indigenous communities.

“That means that people are engaged, but if they are busy on another file, or not meaningfully engaged or unable to get their point heard, then they are not able to be equal decision-makers or use their own set of values, worldview and Indigenous law to drive the process forward,” author of the Firelight report, Ginger Gibson, told The Narwhal.

“Indigenous EA [environmental assessment] means Indigenous governments are setting the terms, they’re conducting the review with their worldview and their Indigenous laws — they’re making decisions about the project themselves.”

“It’s a fundamental difference,” Gibson added.

The result is an assessment that from the get-go is steeped in the ideas that are not as well recognized in Eurocentric processes.

“You’re probably going to get a more realistic, pragmatic approach,” Matthews said.

“It would be a community-driven process from the very beginning.”

Indigenous assessment isn’t brand new

The report, which includes three case studies, highlights one example of a fully independent Indigenous impact assessment of a proposed LNG plant that was conducted by the Squamish First Nation in B.C.

The First Nation conducted the assessment after determining the scope themselves.

As opposed to the British Columbia government process, which only allowed submission of archaeological evidence, Indigenous law was incorporated throughout the Squamish-led assessment, as well as the First Nation’s knowledge and culture.

Eventually the First Nation-led process ruled in favour of the project, attaching 25 conditions including some that would mitigate the impacts on cultural practices such as hunting and fishing.

“This more holistic approach is much more conducive to — and reflective of — the type of communal decision-making of many Indigenous people,” the report concluded.

Matthews says this approach allows Indigenous communities to feel their values are being respected by potential developments.

“It’s also a matter of showing respect for the people that have occupied and used the land since time immemorial,” he said.

Gibson says no matter what the outcome of the assessments, the result is a more robust look at the proposed project.

“They are sometimes reaching similar decisions, sometimes reaching different decisions,” she says. For example, both the Tłı̨chǫ government, in the Northwest Territories, and federal government reached the same conclusion, to approve a proposed cobalt-gold-bismuth mine in the First Nation’s territory.

“Our finding from our research is that each process is always better because of the parallel review. There’s more information, there’s more known about the project, there’s more unearthed about the impact on Indigenous people — and there’s a stronger buy-in to the outcome of the process.”

What would this mean for Indigenous-Canada relations?

The history of Canada and its dealings with Indigenous communities on resource issues is fraught with missed opportunities for fulsome conversations.

The Gwich’in of the Northwest Territories and Yukon are a prime example of this lack of engagement.

“There was a lot of oil and gas development and we really didn’t have a say in what was happening,” said Jordan Peterson, deputy Grand Chief of the Gwich’in Tribal Council, which commissioned the report from the Firelight Group.

“We haven’t always been fully consulted or engaged or involved in these processes.”

The Gwich’in Tribal Council is particularly concerned about the Porcupine caribou herd, a vital cultural and economic resource that, like all caribou, is sensitive to the kind of habitat fragmentation and disturbance oil and gas development can create on the landscape.

Peterson and Matthews agree that Indigenous-led environmental assessments would be one way to bring Canada and First Nations, Métis and Inuit closer together, and undo some of the impacts of colonial processes.

“By engaging communities in the assessment process, you’re meeting the goals of free, prior and informed consent,” Matthews says, contributing to the federal government’s stated goal of complying with UNDRIP and the Truth and Reconciliation Commission’s calls to action.

“Ninety-nine per cent of the time it’s an aboriginal community that will have some impact from a resource project.”

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Politicians and industry have long boasted of the ability for an expanded Trans Mountain pipeline to get oil to lucrative Asian markets from Burnaby’s Westridge terminal.

But experts in Washington State are increasingly concerned that the twinning of the Edmonton-to-Burnaby pipeline may in fact lead to an expansion of the Puget Sound Pipeline, a 111-kilometre “spur line” from Trans Mountain that branches southward at Abbotsford to carry oil to four large refineries in the Puget Sound region.

If Kinder Morgan shareholders vote to approve the deal, Canada will purchase the Puget Sound Pipeline as part of the $4.5 billion deal for the existing Trans Mountain line — meaning the decision to expand the spur line would eventually fall to Ottawa.

Trump may use Puget Sound Pipeline to punish Canada for trade conflict

According to a recent analysis from the Cleveland-based Institute for Energy Economics and Financial Analysis, the presence of the Puget Sound Pipeline in the $4.5 billion sale to Canada may end up being the very thing that scuttles the deal.

That’s because the U.S. government is required to approve the purchase as it crosses the border, including review by both the Committee on Foreign Investment in the United States and State Department.

President Donald Trump would ultimately decide the verdict of the deal — which he may oppose given his erratic approach to addressing ever-growing trade tensions between the two countries.

The reports authors conclude the Puget Sound Pipeline could theoretically be removed from the deal, but it’s no easy task.

“It would probably further delay this,” Kathy Hipple, financial analyst at the institute and co-author of the report, told The Narwhal.

“They would have to work again, re-draft the contract. Lawyers would have to be involved, new documents drawn up, a new price tag put on the deal,” she said, adding the change would raise a new tranche of questions: “what is the valuation of [the Puget Sound Pipeline] and how does that reduce the price from the $4.5 billion if it’s not included?”

“It’s not as simple as an eraser on a pencil and taking the price down,” she said.

Despite the potential challenges of the transaction, others say there is an appetite for an expanded pipeline south of the border.

“I could see it happening very easily,” Mike Priaro, a Calgary-based independent oil and gas consultant, said in an interview with The Narwhal.

“Those refineries in Puget Sound would want to get the cheapest crude they could get their hands on. Sending it by pipeline from the oilsands directly to the refinery is the cheapest way to get crude there.”

The Trans Mountain pipeline meets the Puget Sound pipeline in Abbotsford, where the oil can be carried south into Washington State. Graphic: Carol Linnitt / The Narwhal

A report by Morningstar Commodities Research in January 2017 concluded that “some if not all Washington State refiners are very keen to get their hands on Canadian crude” and that the Trans Mountain expansion “will end concerns about limited crude supply for Puget Sound refineries.”

Kinder Morgan Canada’s prospectus for an initial public offering a few months later, in May of 2017, referenced the possibility of a Puget Sound Pipeline expansion — five times.

Specifically, it reported that the Puget Sound pipeline system is capable of being expanded from approximately 240,000 barrels per day to approximately 500,000 barrels per day.

Two-thirds of oil shipped on Trans Mountain ends up in Washington State

Most of the oil transported on the existing Trans Mountain pipeline already ends up going to refineries in Washington — either by pipeline or tanker.

According to data from the National Energy Board, an average of 295,600 barrels of oil per day was transported on the Trans Mountain pipeline in March 2018, the most recent month of reporting.

About 62 per cent of the oil went to Washington State via the Puget Sound Pipeline.

Another 21 per cent went to the Westridge terminal, while the remaining 17 per cent was transported to Burnaby for distribution, refining or storage. The Burnaby refinery, recently sold to Parkland Fuel by Chevron, has long complained about lack of supply because most of the oil is designated for exports.

Washington State’s Department of Ecology reported that between January and June 2018, an average of 163,500 barrels per day of oil was transported from Alberta via the Puget Sound Pipeline.

All of the oil that made it to Westridge was “domestic heavy,” or diluted raw bitumen from Alberta.

That’s opposed to “domestic light,” which includes conventional oil and bitumen upgraded into high-quality synthetic crude — and is primarily shipped to Washington refineries via the Puget Sound Pipeline. Some diluted bitumen also arrives at Washington refineries by tanker or barge from Westridge, with more shipped to California. Some oil is also transported from Alberta to Washington by rail.

Between January and June 2018, 1.55 million tonnes of crude oil (the Port of Vancouver measures oil in tonnes rather than barrels) was shipped from Westridge on tankers and barges. Of that, 92 per cent went to the United States (while 4.8 per cent went to South Korea in April and three per cent went to China in May).

This is an overall increase from previous years. For comparison, only 1.77 million tonnes of crude oil was shipped out of Westridge in all of 2017.

Washington State has limited ability to process heavy oil — but that could change

Historically, Washington refineries have relied on oil from the Alaska North Slope.

But production has collapsed in recent decades, down to only 525,000 barrels per day (bpd) in 2018 from over two million barrels per day in 1988. About a quarter of Alaska Slope supply was replaced by oil from the North Dakota shale boom, transported by rail.

Imports from Canada almost doubled in that time, from an average of 110,000 bpd in 2009 to 195,000 bpd in 2016 via the Puget Sound Pipeline.

Only two of the five refineries in Washington State have “coker units” that are required to process non-upgraded bitumen from Alberta. Combined, the two refineries have 83,000 bpd in coking capacity, which limits the amount of heavy oil the region can process. As a result, most of the Alberta oil imported to the region has been conventional or synthetic crude (already upgraded in Alberta).

Morningstar advised the two other refineries to upgrade their facilities to accept heavy oil.

Alberta oil processed by a coking refinery was much more profitable than other types of oil in 2016 at Puget Sound refineries: $24 per barrel, compared to $10 per barrel for Bakken oil and $6 per barrel for Alaska oil.

Washington ports deeper than Vancouver’s, allowing bigger tankers

If there’s not currently much demand for heavy oil in Washington State, what’s the concern?

For starters, an expanded Puget Sound Pipeline would allow refineries to rely far more heavily on Alberta oil, encouraging them to invest in coking units that maximize returns. The future of Alaska North Slope oil is currently uncertain compared to oilsands imports, which offer a stable long-term option.

This alone could justify an eventual and significant increase in capacity.

But there’s also speculation that Puget Sound could become an export terminal of its own.

The Westridge terminal in Burnaby — which will soon belong to the Canadian government, pending approval from Kinder Morgan shareholders — has serious depth restrictions that limit loading to Aframax-size tankers, which can only be partially filled with about 500,000 barrels.

Comparatively, BP’s Cherry Point terminal in Washington State’s Whatcom County can receive Very Large Crude Carriers (VLCC), with tankers docking in late 2017 carrying 900,000 barrels — almost double the capacity of Westridge.

“The reality is those Aframax boats are not great for international shipping,” Clark Williams-Derry, director of energy finance at Sightline Institute, told The Narwhal.

“Westridge is always going to be a crummy place for the Government of Canada to be shipping oil out of because you’re going to boost the cost by a few bucks a barrel, at least.”

A BP spokesperson recently told The Seattle Times that it “plans to process any additional Canadian crude coming to the Cherry Point refinery within the facility.” However, the refinery only has 57,500 bpd in coking capacity, so it’s unclear how it could process a significant increase in imports.

Either way, the idea of increased availability of various products from the Alberta oilsands would likely appeal to both producers and refiners.

Considerable opposition to fossil fuel expansion in Washington State

But a doubling of the Puget Sound Pipeline wouldn’t be an easy thing to pull off.

The owner — soon to be Canada — would have to twin the pipeline, add some additional pumping stations and build a tank farm at a refinery.

“It would be one of the most unpopular things you could do in Whatcom County,” Alex Ramel, extreme oil field director with the environmental advocacy group Stand.earth, said of the prospect.

Washington Governor Jay Inslee has condemned the Trans Mountain expansion but as Victoria Leistman of Sierra Club points out, he hasn’t specifically addressed the potential of a Puget Sound Pipeline also being widened or twinned.

“If there’s any risk for this to be expanded, we need him to explicitly put that to bed,” she said.

Tara Lee, deputy communications director of Governor Inslee, said the Puget Sound Pipeline is on his radar.

“We have concerns about that expansion that mirror the concerns the governor has expressed about the Trans Mountain Expansion,” Lee told The Narwhal in an e-mailed statement.

“If there is a change in operations with the Puget Sound Pipeline expansion, then they must work with our state Department of Ecology spills program.”

Williams-Derry said it would be complicated given a recently renewed six-month temporary moratorium by Whatcom County Council on exports of unrefined oil from Cherry Point, which may eventually lead to a permanent ban.

And there’s precedent for activism stopping fossil fuel export projects in the area. In 2016, the local Lummi Nation successfully fought a proposed coal export terminal.

But Williams-Derry emphasized there are still potential profits on the table: “Just because there’s political opposition here — there may actually be a bunch of people in the oil industry who really want to make that happen.”

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B.C. Premier John Horgan took the call from Prime Minister Justin Trudeau at 6 a.m. Tuesday, “before the coffee had made its way through,” as Horgan told the media four hours later. Horgan had risen at 5:45 a.m. to await significant news about the Kinder Morgan Trans Mountain Pipeline project his government came to power determined to stop.

Trudeau’s big news — that the federal government has arranged to purchase the pipeline outright  — places Kinder Morgan Canada on smooth financial seas, Ottawa in the captain’s seat and Canadians on the hook for a $4.5 billion pipeline purchase that many view as a needless subsidy to the fossil fuel industry.

“This decision represents both a colossal failure of the Trudeau government to enforce the law of the land, and a massive, unnecessary financial burden on Canadian taxpayers,” Aaron Wudrick, federal director of the Canadian Taxpayers Federation, said in a statement.

Kinder Morgan, a Texas-based corporation with $80 billion in assets whose Canadian directors earned millions last year, called it a “great day” for the company and Canadians.

Canada pledged to end ‘inefficient fossil fuel subsidies’

But while the celebratory corks might be popping out of the bubbly in the prime minister’s oak-panelled office two days ahead of Kinder Morgan’s controversial deadline for resolving the pipeline impasse, Trudeau will have to answer to his global counterparts when Canada hosts the G7 summit late next week in Charlevoix, Quebec.

At a G7 gathering two years ago this month in Japan, Trudeau and leaders for the first time set a deadline for terminating most fossil fuel subsidies, saying government support for coal, oil and gas should be discontinued by 2025. Canada and other G7 nations encouraged other countries to join them in eliminating what they referred to as “inefficient fossil fuel subsidies.”

“Given the fact that energy production and use account for around two-thirds of global greenhouse gas emissions, we recognise the crucial role that the energy sector has to play in combatting climate change,” the leaders’ declaration said.

Trudeau’s Kinder Morgan announcement is an “embarrassment” for the country in light of that commitment, said Alex Doukas, a spokesperson for Oil Change International, a Washington-based organization focused on exposing the true costs of fossil fuels and facilitating a transition to clean energy.

“Other governments are going to be coming to the table expecting to see leadership from Canada on this file and just days before the summit Canada is plonking down a massive subsidy for the oil industry,” Doukas told The Narwhal.

“And that’s not acceptable. That’s not climate leadership. It would never be a good time for the Canadian government to take on massive risk on the shoulders of Canadian taxpayers, but to do so days before they’re hosting the G7 and trying to wear the mantle of climate leadership is absurd.”

Calling the Kinder Morgan purchase “the great Canadian bailout,” B.C. Green Party leader Andrew Weaver said as a climate scientist he longs for the days when federal Conservative leader Stephen Harper was in power because at least Harper — notorious for his lackadaisical efforts to address global warming — was  consistent on climate change policy.

“Today will be remembered as Trudeau’s legacy,” Weaver told reporters.

“He came into office claiming that he was there as an inspiration for the next generation, claiming he was going to deal with climate change, claiming he was going to be there for the future. He betrayed that today.”

Weaver added: “Mr. Trudeau says one thing and does another and frankly should be ashamed of himself today.”

Major banks end oilsands financing

Doukas said while the entire pipeline purchase might not be a subsidy, the fact that Ottawa felt compelled to purchase the project suggests that “they’re taking risks and liabilities that the private sector is not willing to take on” and means that there’s “some degree of subsidy.”

Federal Finance Minister Bill Morneau said Ottawa is willing to provide the same type of indemnification against political risk to a future owner of the project that the federal government offered to Kinder Morgan.

“So they’re still going to indemnify any future potential component of the project against political risk resulting from actions at the provincial level,” Doukas said. “And that’s a form of subsidy. They’ve clearly indicated interest in continuing to provide a government backstop for the project.”

Doukas also pointed out that on the very same day Trudeau announced the pipeline buyout, the Royal Bank of Scotland (RBS) joined other major institutions — including HSBC, ING and BNP Paribas — by announcing it would no longer directly finance oilsands projects. The bank also tightened restrictions on lending to Arctic oil projects, thermal coal mines and coal-fired power stations.

Horgan said he viewed Canada’s G7 commitment as a “difficult target to realize based on today’s decision,” noting that the B.C. government will carry on with its climate action plan currently under development.

“We’re a sub national government that feels obliged to meet the national targets set by the federal government and it’s business as usual on that front as far as I’m concerned.”

“Mr. Morneau will have to answer to taxpayers, federal taxpayers, who also happen to be British Columbians and Newfoundlanders and people from the Yukon, about how he’s disposing of their hard fought tax dollars,” Horgan said.

Ownership of Trans Mountain pipeline not traditional subsidy: expert

Werner Antweiler, an associate professor at UBC’s Sauder School of Business, told The Narwhal that subsidies to the oil and gas sector in Canada consist mainly of tax write-offs. One study by four major environmental and policy groups, including the International Institute for Sustainable Development, pegs annual Canadian subsidies to the fossil fuel industry at $3.3 billion.

“The ownership of these [Kinder Morgan] assets itself isn’t really a subsidy,” said Antweiler, chair of the school’s strategy and business economics division. “But politically maybe it’s not the right signal to send that the government is getting into that sector when our long-term trajectory is to depart from fossil fuels and move towards forms of renewable energy. So the optics are certainly less appealing.”

Antweiler said demand exists for the diluted bitumen that will be shipped through the Kinder Morgan pipeline expansion, and that Canadian taxpayers are unlikely to be on the hook for a failed business model or a stranded asset.

“Honestly if these were stranded assets you would see the stock prices of these companies collapse and they’re not. The oil business is still going strong.”

“That is not what environmentalists would like to hear and I consider myself on that side of the spectrum but the reality is we all still continue to use fossil fuels. The demand is there and it won’t go away for the next decades while we are transitioning to other types of fuel,” he said, adding that he would prefer a faster transition to renewable energy.

“That process is a lot slower than we would like it to be and what we can do about it is to put a price on carbon and other emissions related to these fuels so that helps this transition. The pipeline here is a very small piece of the puzzle and it’s not what’s going to decide the outcomes in terms of climate change. That depends on many other policies, in particular whether or not we really price carbon.”

Horgan pointed out that the federal government is now fully responsible for the pipeline “from wellhead to tidewater and beyond,” saying “that’s probably a good thing.”

“That allows me to have candid discussions with the owners of the pipeline that I wouldn’t have been able to when they were shareholders in a Texas-based oil company,” Horgan said.

“So the good news is that the government of Canada needs to be accountable for a protection plan, and if there are gaps in that plan I’ll be able to speak directly to the owners of the pipeline.”

Horgan also said that the B.C. government’s court reference case against the pipeline expansion will continue, reiterating an earlier pledge to do everything possible to avoid “the catastrophic consequences” of a diluted bitumen spill.

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Amongst all the hooting and hollering over the Kinder Morgan Trans Mountain pipeline, it’s easy to lose track of how on earth we ended up in this place of dysfunction.

But Canadians didn’t become deeply divided about oil pipelines overnight. Indeed, much of the current tension can be traced back to the federal review of Trans Mountain, which the National Energy Board (NEB) began in early 2014.

“The reality is that there are huge gaping flaws in the Canadian environmental review process that have been known about for decades and have never been fixed,” David Boyd, an environmental lawyer and associate professor at UBC, told DeSmog Canada.

“The process that was carried out to review the Kinder Morgan pipeline was full of holes.”

Those holes, according to Boyd, include a “complete failure” to consider the cumulative effects of projects, Canada’s international climate change commitments and the constitutional rights of Indigenous people.

“Even countries like the United States have a stronger approach to environmental assessment than Canada,” Boyd said. “It’s just completely greenwash to say that Canada has a rigorous review process.”

And yet, that hasn’t stopped politicians and the oil industry from claiming Canada has one of the most rigorous reviews in the world.

Despite promising to reform the review process while running for office, when Prime Minister Justin Trudeau approved Trans Mountain, he said: “This is a decision based on rigorous debate on science and evidence.”

One of the major critiques of the NEB process that approved Trans Mountain was that the panel refused to consider the most recent peer-reviewed science on spills of diluted bitumen.

“How can you ignore the leading scientific evidence and then say you’ve conducted a rigorous review? It’s just a preposterous affront to reason,” Boyd said.

Pipeline debate taps into deeper challenges

“I think it’s fair to say that there’s a big transparency problem in Canadian environmental law,” Jocelyn Stacey, assistant professor at UBC’s Peter A. Allard School of Law, told DeSmog Canada.

“What we’re seeing with this project is that it taps into two really deep, deep challenges that Canada faces at the moment.”

Those questions are: how do we move to a low-carbon future in light of the fact we have tremendous oil and gas resources in this country? And: how do we reconcile with Indigenous peoples?

“Those problems are well recognized across the country,” Stacey said. “But when it comes to making really tough, potentially divisive decisions that will realize those promises, we’re not at a place where really big steps are being made.”

What is the ‘national interest’ anyway?

The big question is how to reconcile those two big questions with the “national interest.”

“Addressing aboriginal peoples’ concerns is in the national interest,” said Hans Matthews, who was a panellist for the National Energy Board’s review of the Enbridge Northern Gateway pipeline.

“The ‘national interest’ places a greater priority on the economics of a project, whereas I think a lot of communities and impacted people are more concerned with the environmental components of the project,” he said.

“Should the people who are most impacted at the local level carry the load for…the national interest?”

Matthews is the president of the Canadian Aboriginal Mineral Association, which is advocating for an Indigenous-driven environmental assessment process.

“It would have a significant amount of involvement of the community from the get-go and it would entail a greater input and analysis and interpretation of community knowledge,” Matthews said.

Indigenous-led assessment would reduce the burden on the courts and also be in keeping with the government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples, Matthews said.

“[The government] can’t in one breath say ‘okay, we’re going to approve this resource project’ but in the other breath say ‘we’re going to adopt UNDRIP.’ ”

Matthews’ comments are in line with those made by the Assembly of First Nations’ B.C. Regional Chief Terry Teegee, who spoke last week before a House of Commons committee reviewing Bill C-69 — a bill tabled by the Liberals to improve Canada’s environmental assessment process.

“This bill falls short in terms of recognition of the core principles of the United Nations Declaration on the Rights of Indigenous Peoples,” Teegee said, noting that it fails to recognize Indigenous jurisdiction.

“We’re seeing that play out right now as it relates to Kinder Morgan, how First Nations who have made their decisions aren’t being recognized with regards to the final decisions of those major projects,” he said.

Lack of justification for decisions sows discontent

Stacey said a big part of what’s missing in the way Canada makes decisions on contentious projects is an evidence-based justification for those decisions.

In the case of the Trans Mountain pipeline, there was a federal order-in-council that constituted the reasons for the decision.

“But if you were to look at the order-in-council, you would find that there isn’t really an explanation of the decision itself,” Stacey said.

For instance, the order-in-council states that the project is not likely to have significant adverse effects.

“It’s not clear how they would reach that conclusion in light of the fact that the National Energy Board’s assessment found that there would be significant adverse effects on the endangered resident orca population,” Stacey said.

The decision also fails to reconcile further pipeline development with international climate obligations and doesn’t even reference protection of B.C.’s coast.

“That was a big part of the reason why B.C. wanted to intervene in the judicial review before the federal Court of Appeal — to make that point that the decision reasons mentions Alberta’s economy, but does not mention protection of B.C.’s coastline,” Stacey said.

Trudeau’s broken promise to re-do Trans Mountain review

Federal Green Party leader Elizabeth May says the Liberals made a huge mistake in not fulfilling their campaign promise to re-do the Trans Mountain pipeline review if elected.

“I think they don’t understand how bad the National Energy Board study was,” May said. “They seem to have forgotten.”

Instead of starting the process over, Trudeau appointed a “ministerial panel” to fill in the gaps that’d been missed by the National Energy Board process.

The 58-page report submitted in November 2016 to Minister of Natural Resources Jim Carr, concluded by posing six incisive questions to cabinet, including: “can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?” and “how might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of ‘free, prior, and informed consent’?”

“That review panel asked some thoughtful questions that they thought should be answered before the project was approved,” Boyd said. “And of course those questions were never answered.”

In a prescient moment, the panel also acknowledged the controversy likely to be created by the pipeline: “The issues raised by the Trans Mountain pipeline proposal are among the most controversial in the country, perhaps in the world, today: the rights of Indigenous peoples, the future of fossil fuel development in the face of climate change, and the health of a marine environment already burdened by a century of cumulative effects.”

The panel did not, however, make any recommendations on what to do about all those thorny issues. That got punted back to the federal government, which — rather than acknowledging the inevitable controversy of a decision of this magnitude — has chosen to ignore all that complexity in favour a single talking point: “This pipeline will be built.”

On top of that, the federal government has now entered financial negotiations with Kinder Morgan.

“I don’t think we would have seen this coming out of Harper,” May said. “This is a manipulated crisis. We’re being played for country bumpkin fools by Texas.”

Fixing environmental assessment (aka avoiding this mess in the future)

So how do we avoid this situation in the future?

“What we really need to be looking at — and what the opposition in B.C. I think is really grounded in — are these more pressing and difficult issues of Indigenous jurisdiction and reconciliation and how Canada as a resource based economy can move to a low-carbon future,” Stacey said.  

The federal government promised to reform how we assess projects like these in the future and to that end has tabled bill C-69, currently before the House of Commons. But it fails on several fronts, according to experts.

“The government of Canada spent over $1 million on a high-powered panel of environmental law experts … they held public hearings in 21 cities across Canada … they had over 1,000 submissions. They reported on what needed to be done. And Bill C-69 bears no resemblance to those recommendations,” May said.

“It doesn’t create an environmental assessment process that is credible.”

The timelines in the new bill for conducting an environmental assessment for major projects are even tighter than the timeline Kinder Morgan was subject to.

“I think that that should be a major concern,” Stacey said. “We can see very clearly from the response in B.C. that when you have controversial projects, it doesn’t do anybody any good to rush these through an assessment process.”

The bill also leaves room for oilsands projects to be exempted from federal review.

But Stacey’s biggest concern is that the bill is still focused on project-based assessment, rather than taking a larger view and looking at cumulative impacts.

“What you see bubbling up is that the really fundamental concerns about the pipeline are much bigger than the pipeline itself,” Stacey said. “By crafting a regulatory and assessment process around projects, it’s ill-suited to dealing with these bigger issues that people really want to see addressed in a meaningful way.”

What’s needed are mandatory “strategic assessments,” Stacey said.

These would look at the impacts of certain government policies, which often have much more profound environmental effects than any individual project. For instance, the federal government has committed to doing a strategic assessment of the climate impacts of existing federal government policies.

May holds out hope that Bill C-69 can be fixed in committee.

“Something went wrong somewhere,” May said. “I think we can fix it. This is so unacceptably bad.”

Image: Justin Trudeau attends the Skandinaviska Enskilda Banken (SEB) Annual Corporate Client Conference in Ottawa. Photo via PMO Photo Gallery

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With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.

Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.

“[B.C.] can enact constitutionally valid legislation when it comes to protecting the environment, as long as it’s not specifically targeted at a federal project like the Kinder Morgan pipeline,” Stacey told DeSmog Canada.

“A court’s going to have to take a look at that to make sure that that legislation is actually with respect to the environment, not in relation to a federal undertaking,” Stacey said.

“The question that arises after that is: well what happens if that provincial legislation, even if valid, conflicts or would impair the pipeline?”

This is the question the courts will try to answer with B.C.’s reference case.

“The court needs to have the actual content of those regulations so that it can discern whether those regulations are valid and then, assuming they’re in relation to the environment, being able to assess whether or not they would impair the pipeline project,” Stacey said.

The specifics of the regulations are not yet available, but in January B.C. announced a proposal to restrict the transport of diluted bitumen until a scientific inquiry into the impacts of a spill could be completed alongside a proposed new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

‘The constitution at work’

Stacey echoed comments made to DeSmog Canada last week by Jack Woodward, who drafted Section 35 of the constitution on aboriginal rights.

“They’re not getting how the constitution works,” Woodward said in response to statements by Alberta Premier Rachel Notley and Prime Minister Justin Trudeau implying B.C.’s actions are illegal or unconstitutional.

“It’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

Stacey called the debates over the pipeline “the constitution at work.”

“Every major development project is subject to both federal and provincial legislation, as well as local bylaws and in some cases Indigenous law as well,” she said.  

Most things regulated by multiple levels of government

Most things in Canadians’ daily lives are regulated by multiple levels of government and pipelines like Kinder Morgan Trans Mountain are no different.

Stacey points to pesticide use as an example of something that is regulated by all three levels of government in a compatible way.

“The most restrictive level of regulation in many cases is at the local level, where many municipalities have bylaws that prohibit the use of cosmetic pesticides,” Stacey said. “And because that doesn’t conflict with any higher level of government, all three levels of regulation are still allowed to exist and operate harmoniously.”

But what happens when different levels of governments are feeling less harmonious?

The billion-dollar question now is: what kind of regulations can B.C. come up with that don’t cross the line into “impairment” of the pipeline?

One example would be implementing additional permitting requirements.

“So in order to increase the transport of bitumen, any prospective transporter would have to submit certain documentation and fulfill certain reporting requirements about emergency response for example before the province would grant an approval,” Stacey said.

That type of legislation would build on the B.C. Supreme Court’s decision in the Coastal First Nations case against the Enbridge Northern Gateway pipeline, where the court recognized that the pipeline disproportionately affected B.C.’s interests.

In that case, the province of British Columbia and Enbridge Northern Gateway were ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations. The B.C. Supreme Court found the province erred when it signed an agreement that granted environmental decision-making authority for the pipeline to the federal government.

The concern over bitumen spills was also addressed in the National Energy Board’s conditions for the approval of Trans Mountain.

“One of the conditions … that Kinder Morgan has to comply with under the NEB approval is it has to satisfy the NEB that it can and is prepared to clean up a bitumen spill in any environment under any conditions before the pipeline is allowed to start operation,” Stacey noted.

“This isn’t something that B.C. is coming up with out of thin air. This is actually a problem that’s been recognized by the NEB and has been agreed to by Trans Mountain in moving forward with this project.”

Which leads us to the next billion-dollar question: can Kinder Morgan prove it can clean up a bitumen spill, given the lack of basic research on the issue?

“Even if B.C. can’t impair the operation of the pipeline, it might be that by moving forward with some conditions, it can access information that it doesn’t otherwise have access to that would allow B.C. to better prepare for a spill response.”

During the National Energy Board review, Kinder Morgan refused to provide its oil spill response plan to the B.C. government, citing security concerns.

“It goes back to a dissatisfaction with the NEB’s process in evaluating the pipeline and I think a concern that the NEB is not going to be a regulator that sufficiently protects B.C.’s environmental interests,” Stacey said.

“B.C. likely wants to have a little bit more control and insight over pipeline operation.”

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