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

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

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

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

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

Federal Government Has Legal Duty to Consult on Line 9

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

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

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

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

Proposed Changes to Line 9 Triggers the Duty to Consult

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

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

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

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

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

Public Challenges Against the Line 9 Project

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

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

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

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

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Last week’s approval of the Line 9 pipeline project by the National Energy Board (NEB) hinges on thirty conditions being met by the pipeline’s operator, Enbridge. The conditions are meant to enhance the safety of the project that involves shipping 300,000 barrels of crude oil and oilsands bitumen everyday from Sarnia to Montreal. Critics of the project say the requirements are not “meaningful conditions” and do not protect communities living along the 38-year old pipeline.

"By giving the green light without actually imposing conditions, the NEB is complacent towards the oilsands industry and demonstrates its inability to protect [our] health, public safety and our environment," Sidney Ribaux, executive director of Équiterre, says of Line 9’s approval in a statement from Montreal.

“The NEB may pretend to have put adequate safeguards in place but it has only safeguarded the profits of pipeline companies and externalized the risks associated with pipelines onto landowners as the Board always does,” says Dave Core, president of the Canadian Association of Energy Pipeline Landowners Associations (CAEPLA).

The conditions largely require Enbridge to provide the NEB – Canada’s independent energy regulator – with the most recent information about the Line 9 project. This includes information regarding the current state of the pipeline, revised emergency response plans and the pipeline company’s updated pipeline leak detection system manual.

Why this information was not required before the NEB decided the Line 9 project was in “the public’s interest” has baffled critics. The difficulties of participating in the eighteen-month decision-making process frustrated participants who were unable to review and comment on the most recent and relevant information about the project.

“The decision and its conditions do not reflect the concerns raised by the public about Line 9 and shipping tar sands bitumen through their communities,” Adam Scott, climate and energy program manager for Environmental Defence Canada told DeSmog.

Public’s Concerns Absent from Decision

Scott points to a hydrostatic test of Line 9 as the one condition the governments of Ontario and Quebec, environmental groups, and landowners asked for, but the Board chose not to impose:

“The Board elects to make no order at this time regarding hydrotesting of the pre-existing portions of Line 9,” reads page 49 of the NEB’s 140-page document on the Line 9 decision.

A hydrostatic test or hydrotest involves flushing a pipeline with high-pressure water to determine if it can safely operate at maximum pressure.

Line 9 has not operated at its maximum pressure in recent years. Evidence submitted to the NEB by an international pipeline safety expert indicated the best way to ensure the existing cracks on Line 9 do not turn into a rupture is to conduct a hydrotest.

Protests London, Ontario against Line 9's approval 

“Enbridge needs to conduct a hydrostatic test on Line 9. It is the gold standard for pipeline integrity and safety. Canada has a well-established history of hydrotesting its pipelines,” Richard Kuprewicz, pipeline safety expert told DeSmog Canada in an interview last October.

The Board did not disagree with the argument for a hydrotest, but appears to have sided with Enbridge’s view the test could have “detrimental effects” or damage the pipeline. The decision to order a hydrotest was punted to a later time and date. 

Safety Tests to be 'Revisited'

“The Board has imposed Condition 11…[and]… may revisit the issue of requiring hydrotesting prior to granting LTO (leave-to-operate),” concludes the Board.

Before ordering a hydrotest the Board wants to review Enbridge’s approach to hydrotesting (Condition 11) and the company’s updated engineering assessment of Line 9’s state (Condition 9). The assessment must include a reliability study of the inline pipeline inspection tool Enbridge uses to evaluate the threat of cracks and corrosion to the line.

The engineering assessment Enbridge submitted during the Line 9 hearings is primarily based on the pipeline's condition ten years ago.

Two other conditions strongly recommended by critics of the project and the government of Ontario – a third party independent review of Enbridge’s data on Line 9 and the requirement of $1 billion in liability insurance in the event of a spill – were also absent from the Board’s conditions.

“There’s nothing of substance [in the conditions]. It’s pretty basic stuff that’s already required in legislation that already exists, like how you’re going to mitigate the damage you’re going to do to water crossings when you dig up a pipeline,” said Adam Scott of Environmental Defence in an interview with NOW Magazine.

Canadians Need To Determine Their Energy Future Outside of the NEB

“With these conditions, the Board is of the view that the IMP (integrity management plan) which Enbridge has implemented to date, and proposed steps going forward, sufficiently protect the facilities from cracking to enable safe operation of Line 9,” the NEB decision reads.

Although Line 9’s approval surprised no one, critics of the project held out hope for stronger conditions.

Dave Core, president of the Canadian Association of Energy Pipeline Landowners Associations (CAEPLA), has been dealing with pipelines, and the NEB for over twenty years and thinks Canadians need to rethink the regulator.

“Canadians need to realize the NEB is doing exactly what it was designed to do over sixty years ago – protect pipeline company shareholder profits and protect politicians from the public. The Board cannot be relied on to protect the public, the environment, or landowners’ rights,” says Core, who is originally a farmer from southwestern Ontario where Line 9 lies.

"We need to have a discussion about the future of the NEB and whether there even ought to be a future for the Board. It is only through ironclad contracts with the discipline of the courts and insurance that our safety, the environment and landowner stewardship responsibilities will be protected," Core told DeSmog Canada from Vancouver. 

The fate of Line 9 now depends on the NEB deciding whether Enbridge has met all imposed conditions on Line 9’s approval. Because Line 9 is an existing pipeline the project does not require approval from the federal government. 

Image Credit: Enbridge, Robert Cory

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Canada’s National Energy Board announced on Thursday the approval of Enbridge’s request to reverse and expand a portion of the company’s Line 9 pipeline to allow for crude to flow east to Montreal, Quebec. This follows a July 2012 decision by the NEB to allow reversal of the western Line 9 segment from West Northover to Sarnia, Ontario. As a result, in the words of the NEB, “Enbridge will be permitted to operate all of Line 9 in an eastward direction in order to transport crude oil from western Canada and the U.S. Bakken region to refineries in Ontario and Quebec.”

Canadian activists urged the NEB to fully consider the high risk and small reward of reversing the pipeline, pointing to the “DilBit Disaster” — when another reversed-flow Enbridge pipeline spilled over 800,000 gallons of diluted bitumen into Michigan’s Kalamazoo River — as a warning for what could occur on the Line 9 route.

As DeSmog Canada has reported, Enbridge’s Line 9 shares the same design deficiencies as the company’s Line 6B, which burst in Michigan. Canadian environmental groups are crying foul over the agency’s non-transparent and restrictive public comment process.

“It’s pretty obvious the entire regulatory system is broken,” Adam Scott, spokesperson for Environmental Defence, told the Vancouver Observer. “They restricted the public’s ability to even participate.” Language in a 2012 budget bill allowed the NEB’s decision to be made without a comprehensive environmental assessment, and the Canadian public was forced to complete a lengthy 10-page application (and given a short two week warning to do so) to even earn the right to submit a public comment.

“There were roughly 150 folks who were actually even allowed to comment or write a letter, and this was also the first major energy project not to have to go through an environmental assessment, so it’s clear the whole system has been stacked against the public’s interest in favour of oil companies,” said Scott.

Nader Hasan of Forest Ethics agrees that the decisionmaking process was rigged.

“Our position is that the decision isn’t just wrong, it’s invalid,” said Hasan. “The rules of the game were rigged in favour of Big Oil. We believed and continue to believe this decision is fundamentally flawed because the process is fundamentally unfair.”

Forest Ethics is challenging the restrictive public comment process with a lawsuit, launched last year, which they hope will be settled in time to impact future NEB decisions. 

Impacts in the United States

Though Enbridge's Line 9 terminates near Montreal, the flow reversal is an integral part of the company's plans to move diluted bitumen and crude from the Bakken shale to Eastern ports for export.

As we first reported on DeSmogBlog in 2012, internal documents revealed how Enbridge was resuscitating an old industry plan, once called Trailbreaker, to link the pipeline system in the American Midwest, where tar sands crude already flows, to a coastal terminal in Portland, Maine. Enbridge's Line 9, traveling through Ontario and Quebec, is a crucial link.

Image: NRDC

In 2012, 19 advocacy groups including the Natural Resources Defense Council, Conservation Law Foundation, Greenpeace Canada, the National Wildlife Federation, and 350.org released a report, Going in Reverse: The Tar Sands Threat to Central Canada and New England, that laid out the then-secret plans to connect Enbridge's Line 9 with the Portland-Montreal Pipeline. 

Who runs the Portand-Montreal Pipeline system? As the “Going in Reverse” report explains:

The Portland-Montreal Pipe Line is managed by two linked companies: the Montreal Pipe Line Limited, which owns and operates the Portland-Montreal Pipe Line with its wholly owned U.S. subsidiary, the Portland Pipeline Corporation.

The Portland-Montreal Pipe Line company, as well as Enbridge Inc., have been open about their intent to move tar sands oil east through central Canada and New England.

In 2011, Portland Pipe Line Corp. expressed publicly, “We’re still very much interested in reversing the flow of one of our two pipe lines to move western Canadian crude to the eastern seaboard,” treasurer Dave Cyr was reported saying. “We’re having discussions with Enbridge on their Line 9 and what it means to us.”

And then there's this: Montreal Pipe Line Limited is owned in large part by Imperial Oil Limited and Suncor Energy; both companies have major stakes in tar sands mining and refining operations in Alberta.

For the past two years, environmental groups and activists on this side of the border have been working to ensure that the 62-year-old Portland-Montreal Pipeline is never reversed. that travels through a number of ecologically-sensitive areas and crosses hundreds of waterways through Vermont, New Hampshire, and Maine. 

On Tuesday, Vermont residents of 13 towns passed resolutions during Town Meeting to prohibit the transport of tar sands crude through the pipeline. 

“Vermonters have already loudly signaled opposition to transporting tar sands across our rivers and farms, alongside lakes, and through communities of the Northeast Kingdom,” said Jim Murphy, National Wildlife Federation Senior Counsel. “A spill would have a devastating impact on our water supplies, wildlife habitat and tourism industry. And any transport of tar sands through Vermont would encourage growth of an industry that contradicts all of our state’s leadership and hard work on moving toward cleaner sources of energy.”

In South Portland, Maine, which hosts the potential export terminal, residents worked to pass a "Waterfront Protection Ordinance" on the ballot last fall, but were outspent 6-to-1 by Big Oil interests.  

The resistance of New Englanders might already be having an impact. While Enbridge was outspoken on a 2008 earnings call about the potential of linking its proposed tar sands pipelines to the Portland-Montreal Pipeline, this week a company spokesperson told VTDigger.org that Enbridge had "no interest" in using the Portland-Montreal Pipeline to move tar sands crude. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Image Credit: Heather / Flickr

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