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

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

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

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

Email exchange personifies Canada’s growing divide over oil extraction

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

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

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

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

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

‘Extremely problematic’ for unelected Senate to veto majority will

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

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

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

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

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

Senate ‘lobbied heavily’ to reject Bill C-48

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

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

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

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

Enbridge, Imperial Oil, CAPP all lobbied senators

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

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

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

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

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

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

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

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

Coastal First Nations call lobbying ‘very concerning’

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

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

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

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

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

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

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

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

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

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

“This is something we just can’t do.”

Majority of coastal Indigenous communities support oil tanker ban

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Prime Minister Justin Trudeau’s November proposal to ban oil tanker traffic from B.C.’s north coast received kind reception on the west coast of Canada where the Heiltusk First Nation was still busy responding to a devastating diesel spill from the Nathan E. Stewart, a sunken fuel barge tug that was leaking fuel into shellfish harvest grounds near Bella Bella.

The tanker ban, however, won’t protect the coast from incidents like the Nathan E. Stewart from happening again, nor from the threat of future refined oil tankers passing through the same waters, according to a new analysis by West Coast Environmental Law.

Reviewing the tanker ban proposal, which has yet to be passed as legislation, West Coast identified numerous loopholes and exclusions that allow for the continued transport of oil on B.C.’s north coast via foreign fuel barges and even, potentially, in supertankers full of refined oil products like jet fuel.

Tanker Ban Leaves Door Wide Open for Refined Fuel Supertankers

“I would describe the bill as sort of a mixed bag,” Gavin smith, staff counsel with West Coast, told DeSmog Canada.

“It’s very positive in that it is strong enough to prevent projects like Northern Gateway from proceeding in the region, but it is not strong enough to prevent oil refinery and refined oil supertanker projects in the region.”

As it stands the proposed legislation does nothing to prevent the movement of supertankers laden with refined oil from traversing north coast waters.

And that’s of significant concern, Smith said, “because those projects are currently proposed and those applications have been submitted to the Canadian Environmental Assessment Agency.”

There are currently two major oil refinery projects proposed for the Kitimat area.

Kitimat Clean, which is undergoing review with the Canadian Environmental Assessment Agency (although that review was temporarily suspended in October), would refine 400,000 barrels of oil per day during it’s projected 50-year lifespan.

Kitimat Clean proposes to refine oil into products such as gasoline, jet fuel and propane for export in Very Large Crude Carriers or supertankers.

The Pacific Future Energy Refinery Project, proposed for 32 kilometres north of Kitimat, would refine 200,000 barrels of oil per day for a project lifespan of 60 years. The Pacific Future refinery is in the final stages of review with the Canadian Environmental Assessment Agency.

Tanker Ban Maintains Current Situation, Introduces New Risks

The tanker ban does restrict vessels larger than 12,500 tonnes from carrying crude oil products but not refined oil products.

Smith said Transport Canada was previously considering a 2,000 tonne threshold, but dramatically increased that figure to 12,500 tonnes.

“The 2,000 tonne was raised up in a Transport Canada discussion paper that was made public earlier this summer,” Smith said.

That 2,000 threshold really walks the line because it allows community shipments of fuel products to continue while not being so high as to allow for large-scale shipments of bulk oil products, he said.

West Coast has asked the federal government to provide an explanation for the increase in threshold.

“We recommend they provide a rational because from our perspective it came from nowhere.”

The 12,500 threshold is slightly higher than the highest recorded shipments in the regions, Smith said, “so they’ve tried to cap it at the highest level of shipments that have been occurring there.”

Jess Housty, council member of the Heiltsuk First Nation and responder to the sunken Nathan E. Stewart, said the current tanker ban is “simply inadequate” because it changes nothing.

“I think it’s important to note the tanker ban wouldn’t have prevented the Queen of the North from sinking and that’s still polluting waters. It wouldn’t have prevented the Nathan E. Stewart. It won’t prevent this kind of incident from happening again.”

The tanker ban as proposed is frustrating, Housty said, because Transport Minister Marc Garneau traveled to Heiltsuk territory to witness the diesel spill in November.

Housty said the tanker ban actually doesn’t affect any current vessel traffic on the North Coast, meaning all ongoing fuel barge traffic remains entirely untouched.

“I would challenge the federal government to give me a list of vessels that are actually impacted by this legislation. I can’t think of one.”

Housty concedes the tanker ban is significant in light of the rejected Northern Gateway pipeline proposal.

But she added, “I think it’s important to note for the Heiltsuk, we weren’t just fighting Northern Gateway because it was crude oil. There were a million reasons why we had issues with that project.”

And many of those issues will still be relevant if those supertankers were carrying refined projects, Housty said.

“This tanker ban, not only does it not help us minimize the current risks we face, it gives permission for massive new risks that we don’t fully understand and I don’t think the general public would be comfortable with.”

Although a Voluntary Tanker Exclusion Zone already exists off the coast of British Columbia to prevent international transport of oil from entering internal coastal waters, U.S. shipments of oil have maintained a ‘right of innocent passage.’

That right has been the subject of criticism, which was renewed after the grounding of the Nathan E. Stewart, an American fuel barge tug (which was pushing an empty fuel barge at the time of grounding). 

To avoid provoking international tensions, the tanker ban does not alter this right and limits its cover to only import and export marine facilities.

North Coast Oil Tanker Ban Won’t Actually Ban Tankers Full of Oil Products on B.C.’s North Coast https://t.co/UDhLH6cZ1Y @dogwoodbc #bcpoli pic.twitter.com/wSg3h4sJM9

— DeSmog Canada (@DeSmogCanada) February 7, 2017

Tanker Ban to Be Locked in But Details Subject to Change

Smith said the federal government did not include a sunset clause in the tanker ban, which means the legislation is not likely to be undone going forward unless by act of Parliament.

However, the types of oil covered in the ban are subject to a definition that has yet to be determined and could change over time.

“The federal government has to answer this question of what do you want covered or encompassed in the oil tanker ban,” Smith said. “In the legislation itself it will say any crude oil cannot be carried in an oil tanker and crude oil will have a definition that will include things that you would expect like bitumen and so on.”

A ‘schedule’ appending the legislation will list other types of products, known as persistent oil products, will also be included in the ban. The types of oil products listed on that schedule can be changed however.

“That approach give the federal government some flexibility to decide what it does and does not want to include in the moratorium,” Smith said.

The federal government has not disclosed what types of fuels will listed on the schedule but did note that products such as jet fuel, propane and LNG will be permanently excluded from the ban.

Tanker Ban Could Still Be Strengthened

The tanker ban feels like another one of Justin Trudeau’s broken promises, Housty said.

“ I think this is a case were they have ticked a box and completely ignored the sprit of what needs to be done,” Housty said.

“I hoped there could have been more trust on this file.”

Smith said the federal government has plans to pass the tanker ban bill by March.

“In terms of what types of improvements, we feel the 2,000 threshold would ensure a good balance between community supply and preventing large-scale bulk shipments,” he said.

“We also think the types of oil kinds should be refined and crude oils writ large. It shouldn’t be quite as narrow as the federal government set out. And we propose the ban cover the entire Hecate Strait, Dixon Exit and Queen Charlotte Sound.”

Smith said ultimately the North Coast Tanker Ban is meant to protect the North Coast from oil tanker spills.

“These are the changes we feel would make the act the strongest legislation possible.”

Image: Sunken Nathan E. Stewart tug near Bella Bella, B.C. Photo: April Bencze/Heiltsuk Tribal Council

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Now 79, David Anderson has been fighting to prevent oil tankers on the coast of British Columbia since he was first elected 48 years ago. In the early 1970s, he was the architect of an inside passage tanker moratorium and a number of other restrictions on B.C. offshore drilling and tanker exports imposed by then-Prime Minister Pierre Trudeau — which may or may not still exist. Anderson would go on to serve as federal Minister of Environment under Jean Chretien, after a stint in provincial politics, including as leader of the provincial Liberal party. Anderson left politics in 2006, but has remained a steadfast advocate for the coast he loves.

The following interview was conducted on November 15, 2016, weeks before the federal Liberals announced a north coast crude tanker ban and approved the expansion of Kinder Morgan's Trans Mountain pipeline. It has been lightly condensed and edited for clarity.

Christopher Pollon: There has been a lot of confusion about the restrictions on oil and gas drilling and tankers that were created back in the early 1970s, and the current status of those. What is the history of this?

David Anderson: [Those restrictions] were put in place in 1971. I guess you could say I was the instigator.

I went to Pierre Elliott Trudeau, and he agreed in 1970, when the Alaska pipeline battle was going full bore, that we should put a moratorium on offshore drilling. At this time [British Columbia] had 28 wells drilled at sea off the west coast of Vancouver Island and in Hecate Strait. The safety record for drilling and tankers was abysmal then — it has improved, so it has gone from dismal to bad.

Trudeau was concerned about that and the Alaska traffic [from tankers carrying Alaska oil to the lower 48]. The most likely route was the inside passage down to somewhere in Puget Sound. And that clearly was a major risk, to have tankers plying the inside passage, so Canada was determined to get them on the outside coast in the open ocean, where in fact if there were an incident, it wouldn't be like the Exxon Valdez or the Queen of the North. It would at least be a ship in trouble, with the opportunity perhaps of getting a tug out there to help it out. Also, if you have an open ocean spill, you are less likely to foul the coast.

The idea was that we were trying to prevent tanker traffic in the inside passage, and Trudeau was persuaded. He was quite an environmentalist — and I mean Pierre Elliott Trudeau — and he was persuaded. He put a moratorium on the drilling because drilling licenses require you to do so much work in a certain time period to hold the license. He said no, we'll waive that and put a moratorium on any work. So, [oil companies like Chevron] didn't lose their licenses, they are still valid out on the west coast. But 1971 was the year that they ceased to be operational.

CP: What about on the south coast?

DA: At that point we already had tanker traffic going out of Vancouver from Trans Mountain…I think most of it went to California, which is sort of ironic because we used to get entirely supplied by California a few decades before Alberta oil started to flow.

So what Prime Minister Trudeau did at that time, he said, 'we'll cap the exports at their present level.' The issue, of course, was if you take away somebody's business, they're entitled to compensation.

And also there was the issue of inconsistency with respect to refined products. We had refined products going to a lot of coastal communities, to Vancouver Island, obviously by sea. But the basic concern was that we would be in protracted negotiations and/or litigation with Trans Mountain, if we took away their export market. So what we did, we froze the level, and said, you can carry on doing what you're doing now, but we're not letting you expand.

CP: Were these restrictions made into law?

DA: It was informal. It was never formalized by an order in council. Neither of these things were formalized by order in council. And what Justin Trudeau is now planning on doing is at least formalizing the northern ban on tanker traffic, crude oil movements in northern British Columbia waters.

CP: So for the south coast, there was a restriction created for how much Trans Mountain can move?

DA: Absolutely.

CP: So, does any of this apply now? Or did these non-formalized directives die when that Prime Minister left office?

DA: Well, I can't answer that definitively; it would take a constitutional lawyer. But I guess you'd have to say that anybody can put in a proposal to be analyzed for moving oil. The National Energy Board has its methods of evaluating, and the government has its methods of evaluating proposals.

But there was in place the knowledge that it was government policy to prevent exports exceeding the level that they were at in 1971. So if you could persuade the government that its policy was wrong, then you could perhaps get a permit to increase the level.

CP: So has Kinder Morgan specifically addressed or challenged this export cap on the south coast?

DA: No, what they've said is, it doesn't exist because it was not formalized in an order in council or law.

CP: I wanted to ask you what the federal government’s perception of this moratorium has been, and the provincial government, for that matter, as well. My understanding is that the original moratorium restricted oil and gas exploration and development on the inside coastal seabed, and it barred Alaska-bound oil tankers from the Dickson Entrance, Hecate Strait, and Queen Charlotte Sound. 

DA: Well, there's another wrinkle to this thing. The Americans have the right to use the inside passage to connect two states: Washington and Alaska. We do not have full jurisdiction when you have a sea route between two states, even though it passes through Canadian internal waters.

We had to persuade the Americans to go offshore, and that's why we got Trudeau so interested. He didn't want to have the inside passage used for this major expansion in Alaska oil traffic. Two million barrels a day, that's a lot of oil moved south. 

CP: So the two million a day was from what source?

DA: Alaska, from Prudhoe Bay to Valdez, and then onward from Valdez by tanker. 

It's now down to about a fifth of that I think. It's way down. Production has dropped off in Alaska, as the field was exhausted.  

CP: What was the dynamic at the time with the Americans, were they resistant to moving the tankers to the outside waters? 

DA: We had to persuade the Americans, because technically, as far as I could see, they had the right to take a route between the two American states which we had agreed to in the various border agreements that took place about the turn of the century.

They also had the right that comes with having the world's largest navy, the right of superior power. So we had to persuade them. Now, to persuade them to get offshore, we had to be consistent. And you couldn't be consistent if you were allowing drilling [in B.C. waters]. And you couldn't be consistent if you were allowing Canadian exports.

CP: What is the best course for the current Prime Minister if he is sincere about wanting to protect the coast?

DA: The first thing is to do a proper analysis of coastal risks. We have never had anything, except for the Thompson inquiry in the 80s, where you looked at the whole coast and said, which areas are the lowest risk?

We've always just responded to company proposals such as the Enbridge [Northern Gateway] one, or the Kinder Morgan one.

We've never done a systematic evaluation of the safest place to put a port. And actually, in my view, the safest place is probably on the north coast, a place like Port Edwards. But, I'm sure you haven't heard very much about Port Edwards. It's got the least obstruction from port to open ocean, the shortest distance from port to open ocean, and so it may be the safest. I use that just as an example.

Or take Kinder Morgan. If their proposal moved to Roberts Bank, the risk of a shipping accident declines dramatically. Why? Because their current proposal means taking a tanker a day out through Second Narrows, under the bridges and out with all the traffic coming into Vancouver harbour.

Tugboat people say 'no problem, we'll just handle it with tugs,' but a tug can't stop a loaded tanker. The inertia of such a vessel is so extraordinarily high, the energy represented by its weight times the speed, it's not possible for tugs to turn it on a dime.

So even shifting the terminal of the pipe from Burnaby to Tsawwassen will reduce your tanker risk of an accident at the terminal dramatically. Nobody has done this comparative analysis of these various sites. Nobody has said well, 'to really be safer we might want to go down to Cherry Point,' which is [nearby in] Washington state, where we may get greater safety of shipping, because that's the terminal that's been used for Alaskan oil for the last 30 or 40 years.

Or maybe we should build a terminal out at Port Angeles, out in the Strait of Juan de Fuca, as far out to the ocean as we can, on the grounds that the closer to the ocean, the fewer obstacles in the way.

So if I have one piece of advice to Trudeau, this being Justin Trudeau, for God's sake, start doing some systematic risk analysis of where we can have the safest system!

The second advice to him is to basically acknowledge, 'my father knew something that I think I should pay attention to. He was a smart man. He put in a ban on the north coast, and he put in a moratorium, or at least, a grandfathering [export] cap on the south coast. I should look very carefully before I change my father's policies.'

It's his dad that did it, and his dad did it for good reasons.

CP: What do you make of the whole Trump factor, and the prospects of the Keystone XL pipeline being back on the table?

DA: That has turned everything on its head. You don't need Kinder Morgan now to expand the tar sands in Alberta.

By the way, Kinder Morgan, Keystone XL, Energy East and Enbridge, all four of them were designed to expand what they're doing on the tar sands today. It's not to maintain market, to keep things going at the current level. It's to expand it.

That's a very questionable proposition. We know this source of oil is heavy in emissions, and we know that in future we're going to have to cut down on emissions, so if we're going to take the Prime Minister seriously on emission reduction, you're going to have to find even larger cutbacks elsewhere.

So, this expansion concept has to be analyzed. Most people think that, well, we're doing this to give a market for Albertan oil, because they think somehow or another we've lost markets. We haven't lost existing markets. And when the industry is pressed on this they say, oh we don't get a good price in the states, they're bad customers. Well, we get the price the industry negotiated. If they're incompetent in handling the business, you know, please will they bite the bullet and resign!

CP: How does it feel to see many of these issues unresolved today, given that they had been addressed so long ago?

DA: I've been fighting oil on the coast since I was first elected 48 years ago. And it's the same irritating business: you're not getting coherent, logical decision making, we're responding to companies without picking the best place, and we're making decisions on the fly based on politics in Alberta rather than on economic and environmental considerations.

Trudeau has admitted…the NEB evaluation system is flawed, and yet he's not repaired it.

He's said that we have climate change as the biggest issue we're facing, and yet he doesn't have climate change worked into this major increase in emissions that the Kinder Morgan proposal represents.

There's a whole pile of illogical aspects that irritate me enormously. 

Image: Tankers and cargo ships near Vancouver B.C. Photo: Ari Fester via Flickr CC BY-NC-ND 2.0

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Provincial Environmental Assessment Could Address Gaps

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

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

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

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

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

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

— DeSmog Canada (@DeSmogCanada) November 21, 2016

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

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

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

B.C. has two clear options going forward.

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

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

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

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

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

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Well, the disclosure statements are in and we now know (sort of) how much was spent trying to sway voters during B.C.’s local elections in November.

In addition to disclosures on how much candidates spent during the elections, there are also filings for more than 100 organizations registered with Elections BC as third-party sponsors. This is the first time third parties have been forced to register with Elections BC and report their spending — and at least two resource companies are in the mix.

Big third-party advertisers include Woodfibre LNG, which spent $18,248 on newspaper and radio ads in Squamish, where the company is proposing a liquefied natural gas export terminal. The company spent 17 times what it would be allowed to spend per capita during a provincial election, according to analysis by Integrity BC — a non-profit organization that campaigns to reform B.C.’s electoral finance.

That’s because B.C. still has no limits on spending during local elections — despite a task force recommending limits be implemented back in 2010.

Integrity BC’s Dermod Travis notes that all that spending didn’t work out so well for Woodfibre LNG. Patricia Heintzman won the mayor's chair with a spend of $11,842, defeating the more LNG-friendly incumbent Rob Kirkham.

KGHM Spends $8,600 on Ajax Mine Letter

Meanwhile in Kamloops, KGHM International spent $8,605 on a mailing about its proposed Ajax Mine — an open-pit copper and gold mine proposed within Kamloops city limits. The company writes in a post on its website that the letter was sent to a “group of Ajax supporters.” The letter included a list of all candidates running for Kamloops city council and listed their public positions on the Ajax mine.

“At a cost of $8,605 that was either one very large group or one very long letter,” Travis notes. “Didn't work out so well for the mine either when the results came in.”

Kinder Morgan Trans Mountain Spending Remains a Mystery

As is often the case, the biggest story may be in what we don't know.

In October, Elections BC ruled that Kinder Morgan didn’t need to register as a third-party sponsor despite launching a major advertising offensive about its proposed Trans Mountain oilsands pipeline to Burnaby during the election. Due to that ruling, Kinder Morgan’s spending during the election will forever remain a mystery.

Photo: My Sea to Sky

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A small, shy whale, may be one of the rarest marine mammals along the coast of B.C., but remarkably little is known about minke whales and the threats they face in the north-east Pacific, according to Jared Towers, research director with the Marine Education and Research Society.

Seldom-seen minke whales – unlike the splashier and much-studied killer whales and humpbacks found in B.C. waters – have no special protection, either in Canada or the U.S, and, according to a recent study published in the Journal of Cetacean Research and Management, more research is needed.

Information is essential if minkes are to be protected from hazards such as oil spills and vessel strikes, Towers said.

Numbers in B.C are likely to be about 388, with another 478 animals off the Washington, Oregon and California coast, Towers said.

“The numbers are really much less than expected…Their numbers are probably much less than the number of killer whales,” he said.

It is probable that minke numbers were previously believed to be higher because of re-sights, especially as minkes tend to return to the same feeding areas year after year.

“But no one knows enough about the stock structure in B.C.,” said Towers, who with a team of scientists, has identified individual animals through photo-ID, acoustic studies and darts that collect small samples of genetic material.

“We don’t see them on a regular basis. They are not as gregarious as orcas. They are elusive and solitary,” he said.

As minkes tend to hang out in shallow feeding areas around Hecate Strait, Broughton Archipelago and Juan de Fuca Strait, the risk of ship strikes and oil spills is high, so concern is growing that, if the Enbridge Northern Gateway pipeline to Kitimat and twinning of the Kinder Morgan pipeline to Burnaby proceed, the resulting increase in tankers could spell disaster for the tiny B.C. minke population.

As DeSmog Canada recently reported, a Department and Fisheries and Oceans analysis pointed to severe deficiencies in Kinder Morgan’s assessment of oil tanker threats to baleen whale populations.

“Of course, if there was an oil spill, just like the porpoises and killer whales and every other animal, the minke whales would suffer, but, because their populations are so low, it could really hurt them,” said Towers, reiterating that those threats make it essential that scientists discover as much as possible about their habits and movements.

The recent study found that, although a few animals stay in B.C. waters year-round, others are regularly seen in some areas of the Salish Sea from April through October and then many animals migrate south over long distances, possibly to Hawaii or Mexico.

The research was not based on tracking the secretive minkes to their winter locations, but by looking at the wounds their bodies accumulate while they are away.

Scientists found that, each year, animals would return to B.C. waters with fresh wounds made by cookie-cutter sharks, which are found only in tropical waters. Some whales also carried commensal barnacles – another species found further south.

“It is clear that common minke whales found in the eastern North Pacific range over a large geographical area,” says the study, adding that research to help determine migration routes and winter destinations is needed to help understand population structures.

Minkes are among the smallest of the baleen whales, growing to about nine metres and weighing about 10 tons. They feed on forage fish such as herring and sandlance.

Almost a decade ago, the Committee on the Status of Endangered Wildlife in Canada, in a risk assessment of north east Pacific minkes, concluded threats were not severe enough to cause concern.

But Towers would like to see the species listed as data deficient while there is a concentrated effort to learn more about the elusive whales before they face additional perils – whether from tankers, increased vessel traffic or pollution.

Image Credit: Tom Benson via Flickr

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A report submitted to the National Energy Board (NEB) by the federal Department of Fisheries and Oceans (DFO) points to “insufficient information and analysis” in Kinder Morgan’s Trans Mountain pipeline expansion proposal as it relates to whale populations off the coast of British Columbia.

“There are deficiencies in both the assessment of potential effects resulting from ship strikes and exposure to underwater noise in the Trans Mountain Expansion Project Application documents,” the report says. “Ship strike is a threat of conservation concern, especially for…Fin Whales, Humpback Whales and other baleen whales.”

The report concludes that an increase in shipping intensity related to Kinder Morgan’s proposal would lead to an increase in threats to whale populations that occupy the Strait of Georgia and the Juan de Fuca Strait.

As covered by Blacklock’s Reporter the DFO analysis outlines Kinder Morgan’s failure to adequately address these concerns and “lack of an appropriate assessment framework” that would allow the department to evaluate the company’s claims.

Kinder Morgan’s current proposal would increase the capacity of the Trans Mountain pipeline from 300,000 to 890,000 barrels of oil per day. The increased capacity would see a significant spike in oil tanker traffic on the Burrard Inlet, from around 60 to more than 400 per year.

Critical habitat for killer whales, proposed habitat for humpback whales and other important areas for marine mammals as outlined in Kinder Morgan's submission to the NEB. Click image to see original in report.

“It’s a big issue,” NDP MP Nathan Cullen told Blacklock’s. “It’s a global concern, particularly in an area where we have had recovery of whale species.”

“The process that is being used by the government so far is flawed, and the public has lost faith,” Cullen said of the NEB review process. “It doesn’t provide certainty and creates avenues for conflict.”

Cullen recently introduced Bill C-628, which seeks to ban oil tankers from the northern B.C. coast.

Last spring, the federal government downgraded the classification of humpback whales from “threatened” to “species of special concern” under the Species at Risk Act. The move provoked British Columbia's public interest groups, which saw the downgrade as an attempt by the federal government to eliminate a legal requirement to protect whale habitat along the B.C. coast.

In February 2014, the federal courts, prompted by an Ecojustice lawsuit, ruled the Harper government had failed to provide recovery strategies for 170 species at risk in Canada. Two months later the federal government reclassified humpback whales, eliminating the requirement for feeding ground protections.

The DFO review of Kinder Morgan’s Trans Mountain pipeline project submission found the company only measured noise pollution in marine mammal habitat from one single tanker and did not include noise exposure from other marine traffic. Kinder Morgan also misapplied noise exposure models, leading to inaccurate results and did not use adequate measures to calculate potential whale strikes from oil tankers, the report found.

Image Credit: Trans Mountain

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An energy executive is weighing in on the federal review of Kinder Morgan’s Trans Mountain oil pipeline expansion with a scathing letter that calls the National Energy Board’s review process “fraudulent” and a “public deception” — and calls for the province of British Columbia to undertake its own environmental assessment.

Marc Eliesen — who has 40 years of executive experience in the energy sector, including as a board member at Suncor — writes in his letter to the National Energy Board that the process is jury-rigged with a "pre-determined outcome."

Eliesen is the former CEO of BC Hydro, former chair of Manitoba Hydro and has served as a deputy minister in seven different federal and provincial governments.

In his letter, Eliesen tells the National Energy Board (NEB) that he offered his expertise as an intervenor in good faith that his time would be well spent in evaluation Trans Mountain’s proposal.

“Unfortunately, I have come to the conclusion that the board, through its decisions, is engaged in a public deception,” Eliesen writes. “Continued involvement with this process is a waste of time and effort, and represents a disservice to the public interest because it endorses a fraudulent process.”

Eliesen writes that he was dismayed when the oral cross-examination phase was removed from the Trans Mountain hearings. He notes that oral cross-examination has served as a critical part of all previous Section 52 oil pipeline hearings.

“It is my experience that when a proponent does not face the spectre of oral cross-examination, their written responses to interrogatories suffer from a lack of detail and accountability,” Eliesen writes. “Still, I was willing to see the results of the Information Request process the board promised would be sufficient.”

When those information requests came back, however, Eliesen lost all hope in the process.

The unwillingness of Trans Mountain to address most of my questions and the board’s almost complete endorsement of Trans Mountain’s decision has exposed this process as deceptive and misleading. Proper and professional public interest due diligence has been frustrated, leading me to the conclusion that this board has a predetermined course of action to recommend approval of the project and a strong bias in favour of the proponent.

In effect, this so-called public hearing process has become a farce, and this board a truly industry captured regulator.

A regulator is considered ‘captured’ when it turns into more of a industry facilitator, rather than a regulatory watchdog.

Kinder Morgan’s Trans Mountain expansion proposal would triple the amount of oil the company ships to Burnaby and increase the number of oil tankers travelling through Vancouver Harbour and the Gulf Islands seven-fold.

National Energy Board Has 'Pre-Determined Course of Action' to Approve Trans Mountain: Eliesen

Eliesen argues that a series of National Energy Board decisions reflect a pre-determined outcome.

“They reflect a lack of respect for hearing participants, a deep erosion of the standards and practices of natural justice that previous boards have respected, and an undemocratic restriction of participation by citizens, communities, professionals and First Nations either by rejecting them outright or failing to provide adequate funding to facilitate meaningful participation,” Eliesen writes.

To illustrate this behaviour, Eliesen outlines six examples:

1) Intervenors being excluded from the formulation of the list of issues to be taken under consideration during the review. Kinder Morgan’s opinion, on the other hand, was taken into account when formulating the list.

2) The board refusing requests from intervenors — including municipal governments and First Nations — for more time to prepare information requests (due to the highly technical, voluminous nature of Trans Mountain’s application).

3) The lack of basic professional standards of disclosure, source verification, references and methodology in Trans Mountain’s studies.

“It is shocking that in a process such as this where due diligence is required on a major capital project that the board has not held Trans Mountain to a minimum professional standard of accountability and transparency,” Eliesen writes. “The Board’s veneer examination of the proponent’s case is reflective of a decision not to dig too deeply for fear the economic case may crumble, or a lack of economic, financial and business acumen on behalf of the Board to know where and how to dig.”

When basic business questions are asked by intervenors, Trans Mountain refuses to answer them, Eliesen adds.

4) The board’s axing of oral cross-examination. The Government of Canada’s Department of Justice has informed the board that evidence given without cross-examination should be rejected. The Department of Justice stated “Canada’s position is that cross-examination is necessary to ensure a proper evidentiary record …” Furthermore, “cross-examination serves a vital role in testing the value of testimonial evidence. It assists in the determination of credibility, assigning weight and overall assessment of the evidentiary record. It has been termed ‘the greatest legal invention ever invented for the discovery of truth’ … without cross-examination the board will be reviewing only untested evidence.”

5) The board's failure to compel Kinder Morgan to answer questions adequately. In the absence of oral cross-examination, the board is relying on written information requests between intervenors and the proponent. However, Trans Mountain has failed to respond in a way that addresses the core elements of most questions — and the board has failed to compel them to answer.

“They have either provided non-responses, general statements, or referred back to the inadequate information in the original application that gave rise to the question in the first place. In many instances Trans Mountain has assumed the regulator’s role declaring that the question asked is outside the List of Issues established by the NEB,” Eliesen writes.

Out of the approximately 2,000 questions not answered by Trans Mountain that intervenors called on the board to compel answers to, only five per cent were allowed by the board and 95 per cent were rejected.

6) Trans Mountain has failed to answer even the Province of British Columbia’s questions, so the province asked the NEB to compel Trans Mountain to answer. But guess what? That request was also denied by the board.

“The board has sided with Trans Mountain dismissing the Province of B.C.’s need for answers in pursuit of its duty to British Columbians,” Eliesen writes in his letter. “The NEB’s bias in support of the proponent is reflecting poorly on the Province of B.C. in that it is unable to obtain necessary answers to conduct its due diligence.”

Province of B.C. Should Cancel Equivalency Agreement, Launch Own Review of Trans Mountain

Eliesen finishes his letter by calling on the Province of B.C. to cancel the equivalency agreement with the federal government to undertake its own environmental assessment as the only meaningful way to get answers to its questions.  

Andrew Weaver, Green MLA for Oak Bay-Gordon Head, joined the call for the B.C. government to issue the 30-day notice required to cancel the equivalency agreement with the feds and launch its own, separate environmental assessment process.

“In the past week alone we have seen Kinder Morgan sue Burnaby residents for trespassing on parkland and one of the most credible intervenors, Marc Eliesen, fully withdraw from the hearing process,” Weaver says.  

The June 2010 equivalency agreement signed between the federal government and province set the review process for major pipeline and energy projects under the National Energy Board, with final approval to be determined by the federal cabinet. The equivalency agreement for the Trans Mountain project can be cancelled with 30 days notice.

“The B.C. government needs to stand up for British Columbians,” Weaver says. “What we need is a made-in-B.C. environmental assessment that is controlled by British Columbians to ensure our concerns get respected and that our questions get answered.”

Marc Eliesen Letter of Withdrawal from Kinder Morgan Trans Mountain expansion NEB process

Photo credit: Jenny Uechi, Vancouver Observer

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While the Keystone XL, Northern Gateway, Trans Mountain and Energy East pipelines remain stalled in political upheaval, environmental opposition and regulatory processing, the government of Alberta could start moving landlocked oil to tidal waters via the Arctic as early as 2015, according to a technical report recently released by the Alberta government. 

The report, authored by Canatec Associates International Ltd., an Arctic petroleum consultation firm, considers three scenarios for exporting oilsands product, all of which were deemed technically feasible. An early, exploratory shipment of oil to the Arctic could be on the move as early as next year, the report states.

The Arctic Gateway Pipeline, previously considered logistically unfeasible, has been eyed with increasing interest recently, as a warming climate begins to open up the north to new development and previously inaccessible shipment routes.

The report notes the new export route stands to benefit from a combination of a changing northern climate, hunger for resource development in Yellowknife and the Northwest Territories, and the growing desperation to move Alberta oil to Asian markets.

The Financial Post reports “an aggressive push from the federal government to reduce environmental oversight in the territory” is part of the “combination of winning conditions” adding to the proposal’s viability.

The report states Alberta “could take a leadership role within Canadian confederation, on the future of the Arctic.”

“Alberta will automatically be a major player in this industry if it has already established an Arctic Energy Gateway.”

The Canatec report notes the Arctic “lacks the equipment, personnel and logistical capacity to effectively respond to oil spills,” adding, “no oil spill response organizations are certified to work in the Arctic.”

Proposed route to the Arctic. Image from Canatec.

The pipeline is projected to transport up to 100,000 barrels of diluted bitumen a day. The Keystone XL pipeline would carry up to 700,000 barrles of oil per day from Canada to the Gulf Coast and the federally-approved Enbridge Northern Gateway pipeline would have a daily capacity of 525,000 barrels of oil.

Alberta Energy spokesperson Ryan Cromb told Fort McMurray Today the report was commissioned to survey oil-export options, and not to identify an alternative to existing pipelines.

“This report was commissioned as part of our larger look at market access in all directions – east, west, north and south,” he said. “Alberta Energy is continuing to review the report and will use it to help better inform us and more fully understand market options.”

Mike Hudema from Greenpeace Canada told Fort McMurray Today it is “absolutely ridiculous” Alberta is considering an Arctic route for oil export.

“Not only should we not be expanding the oilsands at a point where we are blowing past so many environmental thresholds, but now we want to endanger one of the last remaining untouched ecosystems?” he said.

Keith Stewart, energy and climate campaigner for Greenpeace, echoed these concerns: “The melting of the arctic should be setting off alarms saying we should start moving away from fossil fuels,” he said. “Instead, we are using it as an opportunity to make things worse.”

New economic attention has been paid to Arctic shipping routes since ice levels dropped to record lows in the summer of 2012. Unprecedented ice retreat in August 2012 opened up Parry Channel in the Northwest Passage, signaling a new life to the historic shipping route that, until then, was thought too dangerous to be economic.

Ice in the Perry Channel July 17, 2012. Image by NASA.

Ice retreat in Perry Channel on August 3, 2012. Image by NASA.

In 2013 a container ship used the Northwest Passage to deliver cargo to the port in Rotterdam.

Canatec currently lists the Northwest Passage as “technically feasible to open.”

Image Credit: Tuktoyaktuk by pony_coach via Flickr.

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This is a guest post by Glen Thompson. It originally appeared on Abbotsford Today the Watershed Sentinel and is republished here with permission.

“Once the oil leaves the dock, Kinder Morgan holds no obligation or responsibility, even 10 metres out – that’s the carrier’s liability.”

At the last two information events in Chilliwack, Kinder Morgan brought a large team of professionals and specialized aids to cover an exhaustive range of issues. Resembling a Royal Commission, everything concerning the proposed pipeline was in the tow of a Subject Matter Expert and neatly secured in a rolling briefcase.

The first audience was the full Board of the Fraser Valley Regional District (FVRD) and the second, an invited group of government regulatory officials, community leaders and representatives of major environmental organizations. Audiences with a formidable amount of assembled oversight.

The new pipeline, it seems, is as complicated as the first mission to the moon, with a robust 15,000 page draft plan, guiding a small army of civil engineers, scientists, and project leads. It took no less than nine expert presenters with technical analysts standing by, to present an hour and a half project overview to the FVRD Board.  

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Sitting two rows deep, the project leads extolled advanced science and gleaned wisdom distilled from forensic analysis of past catastrophes. The presentation team successfully stick-handled their way through the Boards member’s queries; air quality, the depth of the pipeline in deep rooted agricultural crops, financial compensation capacity and riparian protection.

The second event was a long afternoon of Kinder Morgan being slow cooked by fully qualified, and at times pointed, questions from a highly informed group of community leaders, advocates and government agency analysts. Kinder Morgan walked away roughed up, limping a bit, but uninjured. Every concern it seemed, had a graph, a published opinion or a mitigation plan and supposedly every bit of it, was reasonable, given the daunting task of moving extremely heavy oil, over mountains, in February.

At the FVRD meeting, a single phrase, made by the pipeline’s head director, hung in the air like a high fly ball. I’ll never forget the finality in his voice, “Once the oil leaves the dock, Kinder Morgan holds no obligation or responsibility, even 10 metres out – that’s the carrier’s liability.” Nobody caught the ball.

The Exxon Valdez

The oil cargo that was loaded into the Exxon Valdez traveled safely through the supply pipeline from Prudhoe Bay without incident. The Alaska coast disaster had nothing to do with the pipeline, and everything to do with the carrier. The Kinder Morgan director’s sharp statement pulls the sheet off the question: Who will take Kinder Morgan’s oil out of the Port of Vancouver? West Coast oil tankers are a critical link in the supply chain between the Alberta Rigs and the far off Chinese refineries.

The little known outcome from the Exxon Valdez case is worth considering when examining the full supply route.

The Exxon Valdez ran aground on Bligh Reef in 1989 dumping hundreds of thousands of barrels of oil into Prince William Sound. The ship’s Captain Joseph Hazelwood, an alcoholic, was reported to be intoxicated and had stepped away from the bridge at a critical moment.

A lawsuit alleged Exxon negligently allowed a known alcoholic to be in charge of a vessel and failed to maintain a collision avoidance system that, if functioning, would have warned the crew. The system had been broken for over a year.

In 1994, international media outlets hammered out stories when a jury’s verdict announced Exxon would have to pay a massive $5.3 billion dollar fine. This was enough to pay for the cleanup, compensate 38,000 economic victims and punitively punish the corporation firmly enough to prevent it from ever happening again. The public was satisfied in the justice system and the media moved on.

Exxon Appeals

In 2002, Exxon appealed. The case was heard by the Ninth Circuit Court of Appeals and the fine was dropped to $4 billion. Exxon appealed. The fine was raised to $4.5 billion. Exxon appealed. The 2nd appeal ruling was struck down and the fine was reduced to $2.5 billion. Exxon petitioned for a rehearing but failed, the $2.5 billion fine was upheld.

After the accident, Exxon towed its ripped up vessel to California for repair. The cost of putting her back in service would be $30 million dollars. In 1990 the U.S. Congress passed a law (375 – 5) that prohibits a tanker that has spilled more than one million gallons of oil from entering Prince William Sound.

In 1998 Exxon launched a legal action against the law and tried to return the ship to service on the Alaskan coast. They claimed the law unfairly targeted Exxon, and argued past incidents are not an indicator of an increased likelihood of a future accident. In 2002 Exxon lost the case and by that time the law had prevented 18 ships from entering the sound.

In 2007, Exxon filed a fourth appeal of the fine, this time in the U.S. Supreme Court. Using past case settlements Exxon lawyers argued that a punitive judgement in a maritime case based on reckless behavior should not impose a fine greater than the amount of compensation damages.

In 90 minutes Exxon’s lawyers reduced the fine by $2 billion dollars from $2.5 billion to $500 million. The 5 – 3 decision was supported by (former Monsanto attorney) Justice Clarence Thomas. Exxon paid what amounts to 10 per cent of the original fine.

Exxon is based in New York. It is the world’s third largest company by revenue (est. $420 billion annually). It is readily subject to, and bound by, American law; but despite this, the prosecution of Exxon was largely unsuccessful.

If a U.S. Court has difficulty prosecuting a U.S. company, how would a Canadian court fair prosecuting a Chinese company?

The lesson of the Valdez is that petroleum exporting ports such as the Port of Vancouver need solid legal protection and regulations in place prior to spills. A Chinese Oil conglomerate is likely to be even more challenging to fine or regulate than Exxon.

Who will ship oil to China, state-run China Shipping, Exxon’s shipping subsidiary, Liberian Oil Tankers?

The Kinder Morgan pipeline approval must include a regulatory mechanism for preventing any flavour of Liberian Oil Tankers, a financial bond formula to cover spills, and a double hull safe shipping certification, like the one in place in the Mediterranean. The pipeline should not be considered without these controls.

The current pipeline approval system is as irresponsible as licensing a pub without a drunk driver law. Kinder Morgan needs to serve its oil responsibly. It is not reasonable or logical to separate a pipeline approval from tanker regulation.

The Exxon Valdez was renamed several times by Exxon and eventually sold to a Hong Kong company. She collided with another ship in 2010 and sent to ship breakers for scrap. Under her final name Oriental Nicety, she was the subject of a case in the Indian Supreme Court, beached and dismantled at Alang, India in 2012.

Image Credit: Exxon Valdez cleanup via Buffalo State University.

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The newly appointed head of the B.C. government’s communications branch is a former lobbyist for Enbridge Inc., the company that hopes to build the $7.9-billion Northern Gateway pipeline stretching 1,200 kilometres from the Alberta oilsands to Kitimat on the B.C. coast.

John Paul Fraser, who DeSmog Canada has learned became acting deputy minister in charge of Government Communications and Public Engagement (GCPE) earlier this month, worked as a lobbyist for National Public Relations from 2008 until shortly before moving to the B.C public service in 2011.

He previously worked for Burrard Communications Inc. — a company founded by Premier Christy Clark’s former husband Mark Marissen — where he was registered with the Federal Office of the Commissioner of Lobbying of Canada as a lobbyist on behalf of Enbridge Inc.

Fraser is a long-time friend of Clark who worked on her election campaign and, until this summer, was assistant deputy minister for strategic planning and public engagement. He is the son of B.C.’s conflict commissioner Paul Fraser.

It is not the first time Clark has included an Enbridge lobbyist in her inner political circle. Ken Boessenkool, her former chief of staff who resigned in 2012 after admitting to inappropriate conduct towards a female staff member, was also an Enbridge lobbyist.

The question for opponents of Northern Gateway is whether having former lobbyists in government corridors of power could make a difference to how Clark treats the project. Northern Gateway was conditionally given the green light by the federal government in June, subject to Enbridge meeting 209 conditions listed by the Joint Review Panel, but Clark has never been enthusiastic about the project.

Clark has set out five conditions that must be met before B.C. gives its support, including strict environmental protections, adequate consultations with First Nations and a greater share of economic benefits. B.C. also has its hand on the controls through numerous provincial permits that will be needed if Northern Gateway manages to overcome legal challenges launched by First Nations and environmental groups.

It is possible that having high-level bureaucrats who intimately understand the Enbridge file is an advantage as they will know the odds are stacked against the project, said Will Horter, executive director of Dogwood Initiative, a democracy group fighting against the oil pipeline and tanker project.

 “There’s a revolving door of people associated with Enbridge, either directly or as advocates, coming into the close circles of the premier . . . . But they must understand that this is a big mountain to climb or even that this is a zombie project,” Horter said.

Joe Foy, Wilderness Committee’s national campaign director, worries about a system that allows those with partisan or business interests to take up high-level positions in the civil service.

“I do have a concern when we have powerful players in our government that seem to slip seamlessly between the partisan world, corporate world and bureaucracy,” he said.

“I am not suggesting there is anything untoward, but I think it shows up a fairly major flaw in our system of government, because it is very important that citizens know who they are talking to.”

Fraser previously worked for David Anderson, former federal Liberal environment minister and a Northern Gateway opponent.

Anderson said he has no idea whether his opposition to bitumen-laden tankers in B.C.’s coastal waters could have rubbed off on Fraser, but he cannot see that someone as bright as Fraser could have had much to do with the Northern Gateway project.

“I have great admiration for John Paul Fraser. Enbridge has done such an appalling, hopeless, ridiculous job in managing its public relations, they couldn’t have taken advice,” he said.

Fraser could not be contacted for an interview.

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