If Canadians knew their own history, the National Energy Board hearings on the Kinder Morgan pipeline might not have been declared inadequate by the Federal Court.

The NEB failed to consider the impact on coastal waters and didn’t adequately consult Indigenous people, the court ruled.

Those errors could have been avoided if the NEB followed the model of the Berger Inquiry on the Mackenzie Valley Pipeline, generally considered the gold standard for such reviews.

In the early 1970s Canadian Arctic Gas Pipelines, a consortium including the world’s big oil companies, wanted to build a natural gas pipeline from Prudhoe Bay, Alaska, across the northern Yukon (near the village of Old Crow) to the Mackenzie Delta, then south along the Mackenzie River Valley and through Alberta to the United States. It was to be the longest pipeline ever built and the most expensive private construction project in the world.

A solar array in the village of Old Crow. Photo: Matt Jacques / The Narwhal

The federal government, led by Pierre (not Justin) Trudeau, felt there had to be adequate consultation with the people who would be affected by the construction of this vast project.

On March 21, 1974, Justice Thomas R. Berger of the B.C. Supreme Court was appointed to head a royal commission. Berger was a former NDP MP from B.C. and had been both an MLA and led the provincial New Democrats. Perhaps more importantly, as a lawyer he had argued the famous Calder case, which led to the recognition of Indigenous rights and title to traditional territories.

As long as it takes

Berger’s mandate was to examine the social, economic and cultural impact of the vast project. He wasted no time, setting up preliminary hearings in April and May 1974.

This was a smart move: it allowed him to feel out the players, particularly the interested parties other than the pipeline companies. It also allowed him, with input from the parties, to define and even expand his terms of reference. So, the mandate (expanded) was clear and the interested parties brought into the fold.

Then Berger did a quick tour of the Western Arctic. I recall him travelling by Jet Ranger helicopter from Inuvik across the north shore of the Yukon, looking down on wolves, bears and migrating caribou, and going over the British Mountains to the village of Old Crow, still without roads to the outside world today.

When Berger landed on the Old Crow airstrip, an RCMP van came to pick him up for the short trip into town. Berger, a son of an RCMP officer, declined politely and walked into town with Chief John Joe Kaye, who invited him to his house for a caribou diner. In spite of a stomach problem, the judge immediately accepted.

The chief asked whether Berger’s inquiry would come to Old Crow and, if so, how long it would stay. Berger replied that yes, the inquiry would come to Old Crow, as it would to all the villages affected by the proposed pipeline. He would listen to all the people and stay as long as it took. Other government officials had a pattern of flying in and out the same day.

Then Berger, to the consternation of Ottawa, announced the inquiry would be delayed a year. In that year he sent University of British Columbia professor Michael Jackson, with his family, to visit the Indigenous communities and explain the inquiry to the people.

Berger Inquiry. Photo: Michael Jackson / Prince of Whales Northern Heritage Centre

This later resulted in enormously successful community hearings where people were prepared and spoke in an informal setting, in their own languages, to Berger.

The CBC reported these hearings in six languages. The north was connected. When Globe and Mail columnist Martin O’Malley joined the hearings and wrote about them, southern Canada was enthralled. Canadians think of ourselves as northern peoples but this was the first time most of us had seen the real north.

Berger did come back to consult Old Crow. I was lucky enough to witness the hearing there. Here is what I wrote at the time.

“I am Judge Berger. I am here to listen,” he said at the beginning of the hearing. And listen he does, with dogged patience. He looks at each witness and doesn’t interrupt. He is in his shirtsleeves now, his corduroy jacket on the back of the chair. An unused ashtray is there to gavel the meeting to start. “I find that I am learning a great deal from all that you have told me.” When the attention begins to wane he will take a break, but until then he is alert for each witness. There is respect, on both sides.

After almost a week in town Judge Berger thanks the interpreters and the people for the friendship they extended to him, his staff and to the members of the CBC and press and the participants in the Inquiry. “These people from the CBC and the Press come along with me to enable you to tell the people of the north and the people of Canada what you think.” He explains that he’s going on tomorrow to visit the whalers from Aklavik out on the Mackenzie Delta and then he’s going back to Yellowknife and later to Fort Liard in the southern Mackenzie to hold another community hearing. “I have to hear what all the people in the Mackenzie Valley and the Mackenzie Delta and the northern Yukon think of the pipeline, then I have to send a report and recommendations into the government, and when I am considering what I will recommend to the government, I will be thinking about what all of you have said to me over these three days about the land and about your way of life.” His comments are interpreted and then there is applause. He heard from 81 people in this village of 250. And he would visit another 30 settlements to hear people in five other languages. On adjournment the Inquiry Staff and the Judge would play baseball with the locals under the midnight sun.

As well as community hearings, formal hearings were held under commission counsel Ian Scott and Stephen Goudge and a series of funded interveners cross-examined Arctic Gas experts on such topics as building in discontinuous permafrost.

Berger asked UBC law professor Andy Thompson to round up the environmentalists into one group and, for the first time, secured intervener funding for them (thanks to a young, Jean Chrétien, who was the minister responsible for Indian and Northern Affairs).

Berger fashioned a standard for intervener funding — a clear interest that ought to be represented at the inquiry, a distinct interest, a record of concern, inadequate resources to represent that interest and a plan as to how the intervener would use and account for the funds. He also ordered all the parties to release their reports, including Arctic Gas, to create a level playing field.

Southern Canadians were also consulted by means of open hearings in our largest cities. The inquiry even made a short film showing a bit of the northern community hearings and then identifying Arctic Gas and other official interveners. I was shown just before the southern hearing witnesses testified before Berger, this time in a suit. When people from Halifax complained that inquiry staff had not scheduled a hearing there on the grounds the pipeline was in the west Berger overruled the staff. “The Maritimers are Canadians too,” he said. “They too should be heard.” And they were.

The hearings had another happy result. A generation of young native leaders got to appear before the judge, as their parents were less comfortable in English. What a generation it turned out to be.

Nellie Cournoyea worked with the Committee for Original People’s Entitlement, which was the Inuit group. Later she became a member of the Legislative Assembly of the Northwest Territories and premier.

Dave Porter, who used to carry the equipment for the CBC crew, became a great aboriginal leader in the Yukon.

Jim Antoine, then the quiet but charismatic 26-year-old chief of the Fort Simpson Dene, also later became premier of the N.W.T. George Erasmus cut his teeth before the inquiry appearing for the Indian Brotherhood of the N.W.T. (later named Dene Nation). He later became national chief of the Assembly of First Nations and co-chair of the Royal Commission on Aboriginal Peoples.

A boyish Stephen Kakfwi helped organize the Dene’s presentations to Berger. Later he became president of the Dene Nation and premier of the Northwest Territories and a supporter of a future pipeline.

All told Berger held hearings in log cabins, village halls, besides rivers, and in hunting and fishing camps throughout the Western Arctic. There are 8,438 pages of transcripts in 77 volumes and 662 exhibits from these “community hearings.”

When the southern hearings concluded on Nov. 19, 1976, there were 900 pages of submissions and over 40,000 pages of transcript and more than 1,500 exhibits. The inquiry cost $5.3 million which was a remarkably modest number given the magnitude of the job.

On April 15, 1977, Berger released Volume I of his report, a mere 200 pages, beautifully written and filled with pictures of our stunning north. Volume 2 followed with more technical recommendations to be implemented if and when gas was to flow done the Mackenzie Valley. The work turned out to be among most popular commission reports ever.

Overall, Berger recommended a pipeline down the Mackenzie Valley corridor, but called for a delay of 10 years in construction to give time for the settlement of native land claims along the route. Most of them are now settled.

However Berger recommended that no energy corridor should be created in the Northern Yukon. Instead, the report said, a national park should be created in the Northern Yukon to protect the calving grounds of the Porcupine Caribou herd. A wilderness park called Ivvavik was established in the northern Yukon in 1984, and one called Vuntut in 1995. They are both part of the Inuvialuit (Inuit) and Vuntut Gwich’in (First Nations) land claims settlement. That means, says Berger, both parks are constitutionally entrenched: their character and boundaries cannot be altered except by constitutional amendment. Canada has done its part to save forever the migrating caribou. (The Americans have not.)

On the trail of the Porcupine caribou herd

Indigenous peoples as partners, not bystanders

And the results today?

Land claims have been settled and a possible new pipeline has been proposed, then shelved. This time, the consortium of resource companies (Imperial Oil, Shell, Exxon) had a new partner, with a one-third interest — the Aboriginal Pipeline Group, which represented the Indigenous peoples of the N.W.T. Its website said: “We are committed to respecting the people of the North and the land and environment that sustains them.”

The market is not yet ripe for Arctic gas but if that happens, Indigenous people, properly consulted and heard, will be partners, not bystanders.

Can lessons taught by Berger many years ago be applied today to the Kinder Morgan issue? Coastal First Nations and environmentalists, if really consulted, have a lot to tell us about protecting the waters and the animals. No doubt they will mention the poor response to the 2015 oil spill from the MV Marathassa into English Bay.

Can there be a better spill cleanup system? Can there be perhaps fewer tankers than originally proposed? Can there be a new site for the terminal; say Cherry Point in Washington or another nearer to the open ocean? Can there be another way to consult and meet the concerns of First Nations?

A former Supreme Court of Canada justice, Frank Iacobucci, has been given the task of doing proper consultations. He’s a person not unlike Berger.

Berger taught us something critical about consultation. You have to listen, be patient and show respect.

Then you actually implement what you hear.

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

The fate of the Yukon’s Peel Watershed — one of the most pristine wilderness areas in Canada and home to four First Nations — will be decided by the Supreme Court of Canada on Dec. 1.

What lies in store for the Peel will be determined by future land-use planning in the territory and whether and how those plans grant industry access to the undeveloped region.

In 2014, the previous territorial government tossed out the lengthy work of an independent land-use planning commission that recommended protecting 80 per cent of the region from industry and roads, replacing it with one that only protects 29 per cent of the region.

ICYMI: Battle to Protect Northern Yukon, Home of Pristine Peel Watershed, From Industry Heads to Supreme Court

Two lower courts both agreed that the government seriously erred in doing so. The question being resolved by the Supreme Court is what stage in the planning process things must return to.

The plaintiffs — three First Nations and two environmental organizations represented by legendary lawyer Thomas Berger — contend that rewinding the process too far back will give the government an unfair do-over and set a dangerous precedent for future land-use battles.

To help try make sense of the situation, DeSmog Canada interviewed David Loeks, who served as chair of the six-member independent land-use planning commission. This interview has been edited for length and clarity.

In 2014 the Yukon Government decided to effectively throw out the plan and come up with its own, which only protected 29 per cent of the Peel as opposed to 80 per cent. Did that come as a surprise to you?

All through the planning process, we had shown the evolution and direction of our thinking. And the Yukon Government said, basically, “yup, ok, no worries, carry on.”

When we had written our recommended plan and we did it in good faith.

It’s at the 11th hour and 59th minute, after we had fielded the recommended plan and were now ready to draft the final recommended plan… the Yukon Government comes in with bunch of very routine things…[including] two very key [concerns], which were posed in inoperative language like “we want to see more balance” and “we want you to rethink your access provisions.”

At that stage in the planning process, the Umbrella Final Agreement required that review comments be actionable and strictly referenced to the text. These were neither. We more-or-less had to say that if we were to take these substantively, we’d have to back way, way up in the planning process. We’d have to go back two years or so. So we more-or-less carried on writing the plan as we did, saying “these are inoperative review comments.”

Meanwhile, by this time there is data that between 75 and 80 per cent of the Yukon wanted highly protected landscape. The First Nations wanted it 100 per cent protected. So there’s a lot of push towards the kind of plan we were drafting.

ICYMI: PHOTOS: Documenting the North’s Mighty and Threatened Peel Watershed

What happened next?

The Yukon Government is obligated by the UFA to take that plan out for review. This is where things left the rails.

They didn’t do that. Rather than taking the commission’s plan out for review, they cooked up their own plan. Rather than using the five-year process that we had, they did it in a backroom in three-and-a-half months out and pulled it out and went “tada.” And they claimed — rather than an illegitimately done, backroom, in-house plan — that they were only modifying the commission’s plan.

It was a stunning bit of misrepresentation. Then, they proceeded to take that out for review. Not the commission’s plan — the one they cooked up.

At that point, a number of parties were starting to cry foul. I more-or-less said there was nobody here speaking for the commission. So I adopted a public role of speaking in public, writing editorials, giving interviews and adding my voice to the other ones.

I was speaking for what the commission had in mind and what we were thinking. The public pressure really, really mounted and culminated in this lawsuit, and eventually brought the government down.

How has it felt for you, watching from the sidelines after doing so much work?

The government had been unequivocally reprimanded by the courts. So I thought, “ok, our position is well founded.”

If the Supreme Court comes in favour of the plaintiffs, you can pretty well be assured that the Peel plan will get adopted. If it sides in favour of the government, we’ll have to take at face value and hold him to it, Premier Sandy Silver’s statement that he will, regardless of what the courts have to say, accept and adopt the final recommended plan.

One will have more teeth behind it. The second is going to rely on the integrity and character of Mr. Silver. At this stage, there’s no reason to question that. I’m extremely hopeful that the final recommended plan will be adopted and if the plaintiffs lose their case and if Mr. Silver and the Liberal Party reneged on a very clear promise, then I guess you’d have to say “watch out” as society won’t let that lie.

“In a representative democracy, our parliamentarians like to believe that they are both anointed and uniquely gifted for knowing what the public interest is. History shows that’s not really true.” https://t.co/aFY1muiipB @ProtectPeel #cdnpoli #yukon #Y2Y @CPAWSYukon

— DeSmog Canada (@DeSmogCanada) November 28, 2017

What are some important takeaways from this experience?

Planning, if properly done, is radically democratic.

People should be informed and weigh in and should weigh in a meaningful way. I found having good survey data that showed what the public wanted was really important.

In a representative democracy, our parliamentarians like to believe that they are both anointed and uniquely gifted for knowing what the public interest is. History shows that’s not really true.

Very often, our political apparatus really ends up being the handmaiden to particular interests, often resource development industries.

I’ve been left with the really firm belief that when it comes to making fundamental decisions about how is our landscape going to look over time, you shouldn’t leave that to technical experts.

Commissioners, who after all aren’t elected but appointed, are citizens trying to do a good job. And the critical question all the while is ‘are we on the right track here?’ That’s what a planning commission is trying to figure out. If someone was to say ‘what’s the public interest?’ then let’s ask them as opposed to saying that you’ve been elected by them and will speak for them.

It’s made me more committed to participatory democracy than ever. That’s really what land-use planning needs a healthy dose of.

We did our planning process saying “we’ve got to have a lot of public meetings and consultations.”

There is a huge contrast between what we did and what the government did in their process. Government held open houses, and an open house can be okay but it’s really easy to make it fundamentally dishonest because nobody knows what the sense of anybody’s interests are other than the folks who run the open house.

In a public meeting, where you can actually have statements by the public and debates, you can see how things start to look. That’s a chance for the public to interact with each other as well as with the commission. These kinds of things really are profoundly democratic and really important.

That was one of the things I found was intellectually dishonest about the way the government had presented their pseudo-plan.

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The new B.C. NDP government has officially taken its first major step in attempting to stop the Kinder Morgan Trans Mountain pipeline.

On Thursday morning, it announced it will seek intervener status in upcoming legal challenges to the federal approval of the pipeline.

The announcement helps to fulfill what was pledged in the now-famous NDP-Green “confidence and supply agreement” to “immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline.”

Perhaps the most significant part of the announcement was who the B.C. government hired as external legal counsel for the process: Thomas Berger, one of the most renowned lawyers in Canadian history, especially in the realm of Indigenous and environmental rights.

Here’s a quick explainer about who Berger is, and what message this hiring sends.

Okay, who is Thomas Berger?

An absolute legend.

No, seriously. In the early 1970s, he served as legal counsel for the Nisga’a Tribal Council of northwestern British Columbia in a Supreme Court of Canada case about ancestral land rights. The Nisga’a lost the so-called Calder Case in 1973, but it served as a pivotal moment in recognition of Indigenous title in Canada.

Then, in the mid-1970s, Judge Berger led the Mackenzie Valley Pipeline Inquiry, resulting in a two-volume report that recommended against the construction of a huge gas pipeline that would weave through the Northwest Territories and northern Yukon. It was another massive moment in Canadian history on the environment and Indigenous law fronts.

In the following decades, Berger played a key role in legal investigations into sexual abuse allegations at the Jericho Hill School for the Deaf in British Columbia, and conflicts over requirements under the Nunavut Land Claims Agreement.

Chris Tollefson, founding executive director of the Pacific Centre for Environmental Law and Litigation (CELL), said in an interview with DeSmog Canada that “obviously, he’s a good choice and very well respected.” Similarly, Eugene Kung of West Coast Environmental Law dubbed it a “wise and prudent decision.”

This is lawyer speak for “Thomas Berger is an absolute legend.”

So how old is this guy?!

Berger is 84 years old! And he’s still playing a very active role in the Canadian legal scene.

In March — a single day before his latest birthday — Berger represented three Yukon First Nations and two environmental organizations in the Supreme Court of Canada in their battle to protect the Peel watershed.

While many would have likely retired and taken up a full-time golf career by his age, Berger is still going strong.

Indigenous Law Legend Thomas Berger To Lead B.C. Into Trans Mountain Pipeline Battle https://t.co/w2hrhgu34v #bcpoli #kindermorgan pic.twitter.com/NwB3iMBPF2

— DeSmog Canada (@DeSmogCanada) August 11, 2017

What’s his role going to be in all this?

Frankly, it’s still yet to be determined.

The government has signalled it’s looking to apply for intervener status in the federal legal appeal over the Kinder Morgan pipeline. Tollefson said the first task for Berger will be advising the government on whether to seek the right to intervene in the pending court cases that are before the federal court of appeals.

“My reading of the announcement today is that the government hasn’t decided whether it would be advisable to intervene or not,” he said. “That’s why they’ve hired Mr. Berger. It may be too late to intervene. And the government may decide there’s no real benefit to being an intervener in those cases in that interveners do not enjoy the same rights as the parties [such as the plaintiff, defendant or petitioner]. There may be better ways to invest time and resources.”

Kung agreed, noting that it’s “certainly later in the process” for the government to be applying for intervener status. But he said that given the Alberta NDP government was granted intervener status in May, it’s reasonable to assume that the new B.C. government would have a shot.

Berger will also likely have a role in evaluating the province’s conduct on the entire Trans Mountain file, including reviewing the previous government’s consultation record with Indigenous communities and ascertaining a response to the ongoing Squamish Nation challenge to the provincial decision to grant an environmental assessment certificate for the project.

What does this mean for pipeline construction?

TransMountain has said it will start construction this September.

But on Thursday Environment Minister George Heyman said only three of eight environmental management plans required by the province have been accepted. The other five management plans haven’t been accepted due to inadequate consultation with First Nations, according to Heyman.

“Until that has been completed, Kinder Morgan, with the exception of some private land and some clearing of right-of-way, cannot put shovels in the ground,” Heyman told a press conference in Vancouver.

In late July, the province’s attorney general told the radio station CHNL that the government will proceed on the matter “within the laws of British Columbia and Canada, because if we don’t, we’ll be sued.”

In other words, the government’s chief legal expert doesn’t see it as a viable option to attempt to delay or kill the regulatory process by slowing things down.

However, Tollefson emphasizes that this doesn’t mean the government will “swiftly issue all of these permits and approvals.”

“I think what he is signalling is that those permits and approvals will be considered by independent decisionmakers and applying the relevant statutory requirements,” he said. “And the chips will fall where they may.”

Kung echoed that, suggesting the attorney general won’t artificially deny permits without any merit, but ensure that whatever decisions they make are “meritorious and therefore more resilient to potential legal challenges.”

That’s where Berger comes in. The B.C. government has already indicated it will do everything it can to legally impede the pipeline’s construction. Based on what we know today, he will ensure that the government’s case is airtight and respectful of Indigenous consent and environmental concerns.

So what’s next?

Stay tuned.

“In terms of moving forward, I would expect additional engagement and consultation with the goal of seeking consent from First Nations,” Kung said. “In those spaces, I’m sure what will be discussed is the deficiencies of the review process: namely the National Energy Board’s process, on which the federal and provincial decisions were both based. That’s a pretty shaky foundation to build your house of cards on.

“I think that’s starting to fall apart now,” he added.

As Tollefson put it, this is effectively the first announcement by the new government on the issue. We should expect more on future steps, processes and alternatives in the weeks to come.

The provincial government carries many responsibilities for protecting things within its jurisdiction, including drinking water and public health. But Kung argued that also includes upholding a constitutional and moral obligation to First Nations.

There probably isn’t a better person in the entire country to attempt to uphold that than Thomas Berger. The new B.C. government has sent a clear signal: it’s taking the matter of the Trans Mountain pipeline very seriously.

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

Almost 40 years ago, former federal judge Thomas Berger issued a final report in the Mackenzie Valley Pipeline Inquiry, at the time Canada’s longest, largest and most comprehensive industrial project review.

The massive two-volume report was the product of exhaustive consultations between 1974 and 1977 with Dene, Métis and Inuit peoples, and recommended that the proposed construction of a gas pipeline be delayed for a full decade in the Northwest Territories and permanently barred from the Northern Yukon as it would “entail irreparable environmental losses of national and international importance.”

It turned out to be an incredibly pivotal moment in the history of Indigenous rights and ecological protections in Canada, arguably helping to preserve the largely pristine Northern Yukon, Mackenzie Delta and Beaufort Sea for the decades since.

And on March 22, 2017 — a single day before his 84th birthday — Berger will fight another battle on behalf of the region, this time representing three Yukon First Nations (Tr’ondëk Hwëch’in, Na-cho Nyak Dun and Vuntut-Gwitchin) and two environmental organizations (Canadian Parks and Wilderness Society and Yukon Conservation Society) in the Supreme Court of Canada over land-use planning in the Peel Watershed.

Berger told DeSmog Canada he reentered the fight for the Northern Yukon because what for decades had been protected was now facing new threats.

“The future of this very special place was at stake,” Berger says.

The case Berger is taking to the Supreme Court is complex and somewhat unusual, but fundamentally, it will determine how the future scope of industrial development is decided not only in the Peel Watershed — a 68,000 square kilometre region in the territory’s northeast — but across much of the rest of the Yukon and potentially across Canada.

“This will set the precedent for future land-use planning in the Yukon,” says Tr’ondëk Hwëch’in chief Roberta Joseph.

“It’s a generational hearing that’s happening,” adds Chris Rider, executive director of the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS).

Yukon Government Threw Out Five Years of Study For Pro-Industry Plan

First, a little bit of context about the Peel Watershed.

The Peel is a massive region, draining 14 per cent of the Yukon or an area the size of the entire Republic of Ireland.

Six tributaries flow into the Peel River, which itself later flows into the huge Mackenzie River and empties into the Beaufort. And the watershed serves as home to four First Nations (Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, Vuntut Gwitchin First Nation and the Tetlit Gwich’in Council) as well as for important wildlife including the porcupine caribou, grizzly bears and dolly varden trout.

Bobbi Rose Koe, a 27-year-old Tetlit Gwich’in from Fort McPherson, Northwest Territories, emphasizes that her people are who they are because of the Peel River and watershed.

“We go out on the land for ourselves,” she says. “That’s where we feel at home and where we spend our free time. That’s where we get our food from, that’s where we get our fish from, that’s where we get our water from. That’s where my grandparents spent the majority of their time. We have that connection and that’s where we’re rooted to.”

So far, the watershed has been largely untouched by industrial development, despite being described as having “incredible mineral and hydrocarbon potential.” There’s only one major road, located on the far western side of the region.

It’s about as pristine a region as can be found in Canada.

A lone grizzly bear crosses a desolate road in the Northern Yukon. Photo: Peter Mather, all rights reserved.

In 2009, after five years of study and consultation, an independent land-use planning commission concluded that it should largely remain that way; the six-member commission issued a Recommended Plan that would ensure the protection of 80 per cent of the Peel from roads and industry.

That plan was finalized in 2011 after further consultations.

But in January 2014, without any warning and despite having engaged in the aforementioned land-use planning process for many years, the then conservative Yukon Government issued its own plan that only protected 29 per cent of the Peel from new mineral staking or oil and gas exploration.

“It was almost an exact reversal of the original plan,” Rider says. “The impacts would potentially be huge.”

Modern Treaty Process Requires Government to Stick to Planning Rules

Unfortunately for the government, such actions contravened how the land-use planning process must unfold according to provisions in the Umbrella Final Agreement of 1993 (which established a framework for Yukon’s First Nations to sign land claims and self-government agreements).

Chapter 11 of the Umbrella Final Agreement requires that the government “approve, reject or propose modifications” to the Recommended Plan, after which the land-use planning commission reconsiders the plan and submits a Final Recommended Plan to the government.

In 2014, a Yukon Supreme Court judge decided the government failed to follow that process with its last-minute rejection of the Final Recommended Plan; by previously submitting a letter with suggestions for minor modifications to the Recommended Plan — as opposed to an outright rejection of it — the government implicitly agreed to continue with the process.

As a result, the judge set aside the government’s industry-friendly plan of 2014, and ordered the process be rewound to the stage of final consultation so the process could be completed under the rules of the Umbrella Final Agreement.

Berger paraphrases the judge’s argument to the government as: “If you wanted to reject it, that’s what you should have done at the outset and given written reasons, but what you did was propose modifications and in those modifications you never argued about the amount of land protected. If this procedure is to mean anything at all, you have to be obliged to live by what you agreed to.”

Court of Appeals Verdict ‘Really Made A Mess of Things’

This was considered a major win for the plaintiffs: all the hard work that had been completed by the land-use planning commission would be retained, as well as the recommendations of limited industrial development.

But the verdict was appealed. In 2015, a Yukon Court of Appeals judge agreed that the government had behaved inappropriately in replacing the Final Recommended Plan with its own land-use plan after submitting proposed modifications, “failing to honour the letter and spirit of its treaty obligations.”

However, instead of rewinding the process to the point of final consultations, the judge ordered it back to the 2010 stage — prior to the government issuing its approval, rejection or proposed modifications — which would allow the Yukon government to effectively have a do-over. In addition, the judge reiterated the government’s final authority to reject any plan that results from the lengthy process and adopt a plan of their own.

The appellants contend that verdict was a serious mistake and, unless unchallenged, will grant the territorial government far too much power over the land-use planning process. That in turn could erode the purpose of the Final Agreements.

In the words of Christina Macdonald, executive director of the Yukon Conservation Society, “it really made a mess of things.”

Berger says it puts at risk all of the foundational work previously laid: “If you want this process to work and all parties to proceed in good faith, you can’t allow Yukon to pull a completely new plan out of its hip pocket at the end of the day and reject all that has gone before.”

New Government Pledge to Implement Original Plan But Still Want Case Dismissed

The situation is only made more complex by the fact that a new territorial government was elected in November 2016, with the winning Yukon Liberals promising to implement the land-use planning commission’s original Final Recommended Plan.

In other words, the Supreme Court of Canada case is going to be a fight between two parties who ostensibly both want to see 80 per cent of the Peel Watershed protected from industrial development.

However, the new Yukon government maintains the current Supreme Court appeal should be rejected, arguing that the process: 1) be rewound to the first round of consultations; and 2) allow the government to retain the ultimate power to reject any plan that is recommended by a land-use planning commission regardless of whether the process was conducted in good faith or not.

Macdonald explains that if the Supreme Court doesn’t set aside the Court of Appeal ruling it will mean that: “We can go through this process, Yukon government can play along, opt to modify the plan at the early stage of consultations but ultimately just be like ‘we don’t like that plan, here’s our own plan.’

“That’s what happened with the Peel,” she continues. “And our argument is that is not in keeping with what the creators of these Final Agreements intended.”

The Yukon government did not respond to a request for comment.

In its January 2017 factum for the Supreme Court case, the government’s legal counsel contended that setting aside the ability to reject any future Final Recommended Plan “would have the effect of turning the final land use plan approval decision over to the commission, contrary to the scheme of the Final Agreements.”

That’s ultimately the key disagreement.

The appellants contend that the independent land-use planning commission should in fact have a final approval decision of sorts, separate from any political bias or influence.

And in addition, that if First Nations are going to be truly equal partners in the land management and development, that the planning process as articulated in the Umbrella Final Agreement must be honoured.

“If everyone else is engaged in this process in good faith and done what they need to do then it should be essentially a binding process,” Rider says. “This government may be committed to acting in a fair and reasonable way. But there’s no guarantee that a future government would be. It’s important we get that precedent right, now.”

“The Court of Appeals judgment undermines the land-use planning process not only for the Peel but for every region of the Yukon over a period of what may well be decades,” Berger concludes. “It’s important that this matter be determined now.”

The Supreme Court can take six months or more to issue a verdict following a hearing.

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The National Energy Board (NEB) raised some eyebrows two weeks ago when it rejected 468 citizens — including 27 climate experts and the MP for Burnaby — from weighing in on the Kinder Morgan’s Trans Mountain oil pipeline proposal, which would triple the amount of oilsands bitumen shipped from Alberta to the B.C. coast.

The ruling — plus the revelation that the oral hearings have been nixed altogether — has raised questions about the legitimacy of the environmental assessment and the rationale for the NEB’s decision. The removal of oral hearings prompted several environmental organizations to formally request an extension of the process while others have hired legal counsel to represent rejected participants.

DeSmog Canada decided to take a closer look at the legal changes that allow the NEB to deny many British Columbians a say over a project that puts hundreds of watersheds and B.C.’s coastline at risk of an oil spill.   

It wasn’t always this way

To put the Trans Mountain review in perspective, first you need to look back — way back to Justice Thomas Berger’s 1973 Mackenzie Valley Pipeline inquiry. That inquiry took more than three years to hear submissions from dozens of communities and analyze the environmental and social effects of the pipeline. The consultation process encouraged participation and diligently included local knowledge and expertise.

The Berger Inquiry served as a guiding light for subsequent environmental assessments of national resource development projects, which were designed to emulate this practice — that is, until 2012. That was the year the federal government’s Jobs, Growth and Long-term Prosperity Act or omnibus budget bill C-38 changed many laws that determine the scope of environmental assessments — including who can participate and who cannot.

Drastic changes to environmental law shut door on participation

The new Canadian Environmental Assessment Act 2012 states that citizens can participate in an environmental assessment if a person is an “interested party.”  “Interested party” is then defined as those who are “directly affected” by the project or those who have “relevant information or expertise.” Further, the NEB need only be “of the opinion” that the individual or organization in question is either directly affected or has relevant expertise.

It’s this vague terminology — and the NEB’s discretionary application of these terms — that has been used to exclude citizens from the Trans Mountain pipeline review.

Given that a pipeline spill could affect hundreds of B.C. streams and rivers and a tanker spill could affect much of the coastline of B.C., it appears the NEB used an extremely narrow view of “directly affected.” That brings us to another piece of legislation that is notable only for its arcane language: the National Energy Board Act.

The NEB Act reduces the definition of “directly affected” to a person with a “detailed interest” in the project. The NEB takes into account the “likelihood and severity of harm a person is exposed to” and “the frequency and duration of a person’s use of the area near the project” to determine if a person is “directly affected.” 

Who’s in and who’s out? Reading the tea leaves

Perhaps not all that unsurprisingly, the NEB has not made public how it measures the “severity of harm” or “frequency and duration of person’s use of area,” nor does it explain what it considers to be “near” the project. So, would a statement like “I use the local river to fish and fear that a spill would prevent me from fishing” meet the thresholds for “severe harm” and “frequent use?” It is unclear and the NEB provides no rationale as to why each applicant was denied status.

The one useful piece of information the NEB offered to help us read the tea leaves was that a person’s address was a consideration — presumably the board required a participant to live very “near” a pipeline or tanker route and may have used postal codes to cull participants.

In a letter to applicants, “Ruling on Participation,” the NEB says citizens needed to “have a specific and detailed interest that was sufficiently affected.” The NEB leaves rejected applicants in the dark as to why their concerns were not “specific,” “detailed” or “sufficient” enough. The NEB could have interpreted these terms narrowly in order to cull participants from the process.

Further, the pipeline terminates and reaches tidewater in the federal riding of Burnaby Douglas. For people who live in that community, the possible environmental and economic impacts of this national infrastructure project are huge — yet the NEB has ruled local MP Kennedy Stewart ineligible to participate. 

Downgrading

In addition to outright rejecting 468 people from participating, the NEB also downgraded 452 applicants from “intervenors” to “commenters.” Commenters, who had to fill out an arduous 10-page application to participate, cannot ask questions or file evidence — they’re only allowed to submit a single written comment to the review panel.  

Relevant expertise?

Notably, the environmental impacts of the development of the oilsands and climate change are not part of this environmental assessment’s scope — 27 B.C. climate experts were rejected from the hearings.

Economists from the Canadian Centre of Policy Alternatives and the president of the Business Council of British Columbia were also rejected. For an assessment whose scope does include the “socio-economic effects of the proposed project” and the “economic feasibility of the project,” it is difficult to justify the refusal of expertise that can speak to the negative and positive economic impacts of the proposed project.

The NEB’s decisions determining who can participate in the Trans Mountain Expansion assessment are unclear, lack transparency and limit democratic participation. Denying standing to those who are affected or have relevant information “streamlines” the process but makes the process far less effective and accountable. The NEB calls its is own ruling on participation “generous,” although it could also be called a smokescreen, meant to legitimate the Review Panel’s final decision.

Feds following in Alberta’s footsteps on environmental laws

CEAA 2012 has been used to exclude participants from other assessments. The joint review panel looking into Shell’s Jackpine mine expansion in the oilsands determined that people living downstream from the proposed project are not “interested parties.” Indeed, the “directly affected” language used in CEAA 2012 is similar to that of Alberta’s old Energy Resources Conservation Act that states regulators must consider how a development might “directly and adversely affect the rights of a person.”

The new Responsible Energy Development Act (2012) in Alberta includes the same language. Alberta regulators have ruled that residents living near proposed sour gas wells and people living three kilometres downwind from flaring are not “directly or adversely affected.” It appears the federal government is writing and interpreting legislation in the same way Alberta has done — making way for the construction of oil and gas infrastructure at the expense of environmental protection.

Shortened timeline means a less rigorous process

The entire Trans Mountain environmental assessment will take 18 months — not enough time to conduct proper scientific research into impacts, according to federal scientists.  

Although environmental assessments should allow for debate and determine if a project is in the public interest, federal assessments have merely become rubber stamps for pipeline and oilsands projects.

Image Credit: screenshot from TransMountain.com

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