On the day The Narwhal went out on pollution patrol with Transport Canada’s National Aerial Surveillance Program in early June, the morning started in a second-storey office on the outskirts of the Vancouver International Airport in Richmond

The team (two pilots, two surveillance technicians and a manager/senior technician) assemble in a briefing room. The crew pours over the latest weather reports, satellite imagery of real-time shipping traffic and any reports of weekend spills. In this way, each day’s flight plan is a custom creation.

I’m with filmmaker David Lavallee to get a first-hand view of what it’s like on the front lines of marine pollution first response on British Columbia coast.

We are briefed for emergency readiness and board the cherry-red plane — a highly customized former commercial Dash-8 — one of three maritime pollution surveillance planes that Transport Canada employs on the Pacific, Atlantic and Arctic coasts under the banner of the National Aerial Surveillance Program.

On the day we fly, an oil slick has been reported in Vancouver’s False Creek, which is the first top of the flight.

The Dash-8 has been heavily modified with radar, specialized cameras and much more — with modified fuel tanks that make a six-hour, return flight to the Alaska border possible.

No spill is visible as we cross False Creek, but as the plane rises over Burrard Inlet, an unreported iridescent slick of suspected hydrocarbon comes into view. The pollution is photographed and analyzed to produce an estimate of the amount of fuel on the surface.

This spill is what senior technologist Owen Rusticus calls a “mystery spill” — there is no obvious source (such as a nearby ship trailing oil), but one possible explanation is that a ship has left its bilge pump on auto, discharging fuel-tainted water into the inlet.

For densely populated areas with heavy shipping traffic, the crew relies largely on sight to detect spills, with the background help of built-in technology that can detect the unique surface effect of oily substances on water.

As we cut across Georgia Strait to scan the shipping lanes off the west coast of Vancouver Island however, the plane rises much higher (20,000 feet is the limit) and relies entirely on sensors for its pollution detection.

Before we rise above the clouds about 65 km off the coast of Tofino, we spot and photograph a group of about nine white Risso’s dolphins, followed by two separate pairs of fin whales — which are photographed and reported to the Department of Fisheries and Oceans.

Pilot Simon Pearce says they typically see “a lot of humpbacks and sometimes sperm whales” closer to shore off Vancouver Island at this time of year, and further offshore, fin and blue whales.

During the nearly five-hour flight, we witness how dedicated and skilled the Transport Canada surveillance crew are. In 2018 alone, the Pacific aerial surveillance program reported 550 spills (between April 1, 2018 and March 31, 2019) — many of them relatively small hydrocarbon spills.

On our flight, the Burrard Inlet spill was estimated to contain fewer than four litres, and a tiny slick near Nanaimo was fewer than 0.5 litres. So what happens to mystery spill reports of small quantities?

Transport Canada spokesman Simon Rivet later tells me the mystery spill information informs Transport Canada’s “overall knowledge of marine oil spills in Canadian waters, including their location, extent, frequency and the total amount of oil spilled.” The data also informs where future patrols will happen.

Despite the Canadian government’s stated “zero tolerance for polluting Canada’s marine environment,” (as per a pamphlet for the surveillance program from Transport Canada in 2011), there were just two “administrative monetary penalties” issued to two vessels for discharging pollutants in the Pacific region last year — both of them for less than $2,000.

With the recent federal approval of the Trans Mountain pipeline, which could see a seven-fold increase in the number of oil tankers plying the southern B.C. coast, the surveillance work of these little-known eyes-in-the-sky will only become more important.

Video by White Gold Productions

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.

Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge’s Northern Gateway pipeline since at least 2009.

The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn’t fulfilling its duty to consult Aboriginal peoples as required under Section 35 of the Canadian Constitution.

An Environment Canada e-mail included in the documents contained a list of concerns regarding the consultation process, stating, “it is not clear that [the process] would meet the honour of the Crown duty.”

The e-mail also acknowledged “First Nations were not involved in the design of the consultation process” and that there was a “lack of clarity” concerning First Nations’ rights and title.

Haisla Nation Chief Councillor Ellis Ross said he received the trove of documents with “mixed emotions.”

“We’re very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title,” Ross said. “But it’s disappointing this information is in our hands now when we can’t do anything with it legally or politically.”

“But it does confirm what we’ve been saying all along about the process when it comes to rights and title is very inadequate. It doesn’t even follow case law.” 

Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a 'duty to consult' First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights. 

The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.

“Now we can see that Canada’s own environment ministry agreed with us,” Chief Fred Sam of Nak’azdli said.

“For years Nak’azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed,” he said.

Eight First Nations including the Haisla, the Nak’azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.

Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.

“At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues,” Tollefson told DeSmog Canada.

“The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged.”

When it comes to Section 35 of the Constitution, “the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory,” he said.

Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations — including BC Nature which he represents — against the Northern Gateway pipeline's approval in Vancouver this October.

Ellis Ross. Photo: Philip Chin

An additional Transport Canada e-mail released to the Haisla, dated August 31, 2009, also expressed doubt in the adequacy of the government’s approach saying “the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information.”

Both the Environment Canada and Transport Canada e-mails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.

Despite these doubts the federal government “charged ahead” with its consultation process, Chief Sam said.

“Now, many First Nations have been forced to go to court to challenge Canada’s Enbridge decision,” he said.

Gitxaala Nation Chief Clarence Innis said he’s “shocked” that, despite the apparent level of uncertainty about consultation, “Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations.”

“This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia’s Northwest Coast,” Innis said.

For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.

“We’re trying to follow the rules, and case law principles — the Haisla isn’t blocking roads or anything — we’re trying to follow the courts,” he said.

“But with Canada, it’s like the rules are there to be bent or broken.”

Environment Canada Sep 1 2009 Email Re Consultation Approach

Transport Canada Aug 31 2009 Email Re Consultation Approach

Image Credit: Ellis Ross by Philip Chin

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 federal agency investigating the Lac-Megantic oil train derailment and explosion that killed forty-seven people released recommendations last week to improve the safety of shipping crude oil by rail. If the recommendations are implemented by the federal government they will serve as a strong step forward in protecting communities living along railway lines. 

“The federal transport minister has a clear choice: protect public safety or secure profits of oil companies,” says Keith Stewart, a climate and energy campaigner with Greenpeace Canada.

One of the country’s most active lobby groups – the Canadian Association of Petroleum Producers (CAPP) – responded to the recommendations earlier this week. CAPP asked the federal government “to ensure their implementation does not interrupt service and respects the competitiveness of transporting our products by rail.” In other words, new regulations should not interfere with business as usual for the oil industry.

“Companies have to pay the price for safety. Their profits cannot come before communities, the environment and general safety,” John Bennett, director of the Sierra Club Canada told DeSmog Canada.

The Transport Safety Board (TSB) made three recommendations to Transport Canada improve safety of oil-by-rail shipments: tougher standards for the susceptible-to-rupturing DOT 111 tank cars, strategic routing of oil trains that considers the environment and communities, and emergency response plans for rail lines transporting large volumes of oil.

Greenpeace and the Sierra Club welcome the recommendations. Both organizations have been pushing for stricter oil by rail transport rules since before disaster struck Lac-Megantic, Quebec on July 6th of last year. Rail company CN also supports the TSB’s recommendations. Rail tank cars are owned either by shipping companies or oil producers. Rail companies on the other hand own the rails, and are liable for derailments.

The recommendations focus on tank cars, not the rails themselves, which is one of the shortcomings of the recommendations. Improvements on both are needed.

Recommendations cannot protect the public if they are not implemented. Bennett is not very optimistic the recommendations will be applied by the federal government. Many TSB recommendations in the past, he says, have “just sat there” and were not adopted, like rail line improvement recommendations made after the Lake Wabamun derailment in Alberta in 2005.

Stewart speculates the federal government will wait to see what the U.S. does, something he thinks is very problematic.

“Lives are at risk. Canada should be taking a leadership role,” Stewart told DeSmog from Toronto.

The TSB and the U.S. National Transport Safety Board announced their safety recommendations for oil-by-rail intentionally at the same time. Transport Canada has ninety days to reply to the TSB’s findings. Upon release of the recommendations in Ottawa on January 23rd, TSB chair Wendy Tadros insisted “change must come and it must come now."

If adopted, applying the recommendations may prove to be difficult. Rerouting oil tank cars away from densely populated or environmentally sensitive areas is difficult due to Canada's limited rail options.

Emergency response plans also require greater communication between shippers in the public, especially regarding large oil shipments. Shippers have been reluctant to do this in the past.

“Canadians need to ask themselves why are we doing this? Transporting oil more – whether by rail or pipeline – is a risk with little to no benefits for communities because it is going for export,” says Bennett, who is based in Ottawa.

“We already have enough infrastructure to meet our own oil consumption needs,” Bennett told DeSmog Canada.

Oil tank car shipments in Canada have dramatically jumped from five hundred carloads in 2009 to 160,000 last year, but Canada’s consumption of oil has declined during the same period. All of the recent pipeline proposals in Canada are destined to export oil out of the country with the exception of the Line 9 pipeline in Ontario and Quebec.

“The federal government would be more than happy for this debate to be rail versus pipeline oil shipments,” says Stewart.

“The debate should really be between dirty energy and clean energy and why we continue to invest billions in infrastructure for the fossil fuel industry when that money should be used to fight climate change and reduce our dependence on oil,” Stewart told DeSmog Canada.

The oilsands boom in Alberta and the Bakken shale oil boom in North Dakota coupled with stiff opposition to new pipeline approvals have been blamed for the massive increase in oil-by-rail transport in North America. In the US, oil tank carloads went from 10,800 in 2009 to 400,000 in 2013.

Image Credit: Transportation Safety Board

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.

CN Rail is considering shipping crude oil by rail from Alberta to Prince Rupert, BC, for export to Asian markets in capacities matching Enbridge's proposed Northern Gateway pipeline.

According to the Canadian Press, "internal memos obtained by Greenpeace under the Access to Information Act show the rail carrier raised the proposal last March with Natural Resources Canada."

A briefing note for the March 1 meeting reportedly states that China-based Nexen Inc. is "working with CN Rail to examine the transportation of crude oil on CN's railway to Prince Rupert, B.C., to be loaded onto tankers for export to Asia."

A CN presentation paper attached to the briefing note assures that "CN has ample capacity to run seven trains per day to match Gateway's proposed capacity."

According to a 2013 report by Malcolm Cairns, an ex-CP Rail employee, a single tanker train can carry 63,000-78,000 barrels of crude. Going by that number, seven trains per day would bring CN's proposed capacity to 441,000-546,000 bpd, matching or exceeding Northern Gateway's starting capacity.

The market for shipping crude oil by rail has been steadily growing since 2009, during which CP Rail moved 500 carloads and CN moved none. Cairns' report states that in 2013, CN anticipates moving approximately 60,000 carloads of crude oil.

If undertaken, CN's proposal to ship bitumen crude from Alberta to Prince Rupert would significantly raise the volume of crude oil shipped by rail in Canada per year.

Map of CN Rail Routes in North America. Credit: CN Rail.

Greenpeace researcher Keith Stewart reportedly said that the CN proposal seemed to be a possible "Plan B" in the case that Northern Gateway is blocked, but raises "the same or greater risks."

The risks of transporting crude by rail were put into sharp relief by the derailment and explosion of a train carrying crude in Lac-Megantic, Quebec, this July. The incident took a tragic toll, resulting in 47 deaths and about 5.5 million litres of oil burned or contaminating the environment of Lac-Megantic, with the fire burning for four days.

Spokesman Mark Hallman denied CN made any project proposal, telling the Canadian Press that "no specific crude-by-rail project to Prince Rupert (was) discussed" at the March meeting with Natural Resources Canada.

Hallman did say that "the company will consider concrete crude-by-rail proposals, including any specific project to move crude to Prince Rupert," though there is currently "no infrastructure in place at Prince Rupert to transfer crude oil from train tank cars to vessels."

Hallman added that Natural Resources Canada asked for the March meeting, not CN.  

The documents obtained by Greenpeace confirm the federal government's strong interest in shipping oil by rail, at least before the Lac-Megantic derailment.

Cheadle reports that an undated memo for Natural Resources Minister Joe Oliver says "NRCan is currently meeting with Transport Canada to mutually understand how rail could be part of a solution to current market access challenges," and calls rail an "increasingly viable option." The memo also notes that CP and CN Rail "have indicated that the potential to increase rail movements of crude oil is theoretically unlimited."

Another memo for International Trade Minister Ed Fast and Dennis Lebel, then transport minister, claims that Transport Canada "has identified no major safety concerns with the increased oil on rail capacity in Canada, nor with the safety of tank cars."

The memo observes that "transportation of oil by rail does not trigger the need for a federal environmental assessment," though "proposals to construct new infrastructure to support the activity" might, under the Canadian Environmental Assessment Act.

The "Departmental Position" on shipping oil by rail was redacted from the memo.

"If the government or industry imagines they can use these regulatory loopholes to do an end-run around opposition to tar sands moving through those lands or waters, they will be in for a rude awakening," said Greenpeace's Stewart.

There has been strong opposition to the Northern Gateway and Keystone XL pipelines in Canada and the US. But the memo to Joe Oliver suggests that the federal government doesn't see this as too much of a threat to the industry's expansion, with "Canadian crude producers…unlikely to slow down production and [turning] to rail to ensure their product reaches market," should the pipelines meet with "difficulties."

The memo says that "there hasn't been a project to bring crude by rail to port for tanker export, however rail officials indicate that such a project is likely in future."

Top Image Credit: Rocco Rossi / Wikimedia Commons

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 death toll from the tragic Lac-Mégantic train derailment has risen to 15* following the recovery of more bodies from the rubble left by exploding oil tankers cars, which levelled more than 30 buildings in the centre of the small Quebec town early Saturday.

CBC News reports that "a criminal investigation is now underway as officers continue to comb through the rubble and search for some 40 people who are missing," according to Quebec provincial police Inspector Michel Forget.

Forget said "terrorism" was unlikely to be the cause of the derailment and the explosions. He didn't elaborate on the causes of the criminal probe, but said that investigators had "discovered elements" that warranted it, with "criminal negligence" being "one possible charge among many that are being considered as the investigation unfolds."

Investigators have also revealed that firefighters were called in Friday night to deal with an incident at the train in Nantes, the town where the train was parked, about 12 km from Lac-Mégantic. The train rolled downhill and exploded in Lac-Mégantic after the firefighters and an employee from the rail company left.

Nantes fire chief Patrick Lambert "said his crew received the company's blessing to leave the scene," reports CBC. Montreal, Maine & Atlantic Railway, however, countered with the accusation that "the fire crew should have alerted the engineer who by that point had gone home to sleep for the night."

The Transportation Safety Board of Canada (TSB) is also investigating the derailment, and has questioned the safety of the general purpose tanker cars used to transport flammable materials like crude oil. The TSB does not assign criminal charges, but will investigate the cause of the derailment and identify "safety deficiencies."

CBC reports that Don Ross, the TSB's lead investigator at Lac-Mégantic, also showed concern at the lack of precautionary technology on the stretch of track that might have prevented an incident like this.

"This area is not equipped with the type of signal systems that would even show to a rail traffic controller that something was moving on the territory that they hadn't authorized," Ross said at a news conference yesterday.

Another TSB investigator, Ed Belkaloul, is said to have observed that "the type of train car involved in the crash, was identified as a concern by safety officials following a 1995 train derailment in Gouin, Que., that resulted in a sulphuric acid leak into a lake and the Tawachiche River."

After the 1995 derailment, the TSB warned in their report that "the carriage of certain dangerous goods in such cars might be putting persons and the immediate environment at risk in the event of an accident."

The fallout from the tanker car explosions also includes crude oil from the train leaking into surrounding waterways via the Chaudière river. About 80 km downriver from Lac-Mégantic, the community of Saint-Georges is having to draw water from a nearby lake instead of the river, which is their usual source, because of fears "that the water is contaminated with hydrocarbons," according to a separate article from CBC.

Ross added that the TSB has had "a long record of advocating to further improvements" to the "general service" cars "because they're a very common type of tank car and take a lot of very large volumes of petroleum products, like in this case, and you can see the damage that was caused here." He said that the investigation would "establish whether everything that was done here had met the requirements."

Stephen Guilbeault, head of environmental group Equiterre, told CBC that "a wave of deregulation" has allowed companies like Montreal, Maine & Atlantic Railway to get away with using outdated train cars, with "the federal government…very complicit in letting companies dictate the rules of the games."

Dean Beeby of the Canadian Press wrote last year that a February 2012 briefing note to Prime Minister Stephen Harper from the clerk of the Privy Council, on the potential of rail transport of crude oil, observed "that Transport Canada officials have confirmed there are no regulatory hurdles for transporting crude by rail."

Emile Therien, former president of the Canada Safety Council, who criticized rail safety regulations in 2007, clarified in a piece for the Ottawa Citizen that "Transport Canada, with overall responsibility for railway safety, conducts audits of how a railway company maintains its safety-management systems. It does not engage in the inspection of tracks and switches." Day-to-day safety regulation is left to rail companies.

Therien did also observe that "train accidents in this country have decreased by 23 per cent" since 2007, and said that Canada's rail safety in general is "improving."   

Meanwhile, in Lac-Mégantic, 1,200 of the 2,000 evacuated residents have been let back into the town, though around 800 residents are still being kept away because of work going on in the cordoned-off "red zone." The air quality in the area has been tested and confirmed to be safe, but returning residents have been advised to "open windows and ventilate their homes."

CBC says that locals "have been quick to single out [Montreal, Maine & Atlantic Railway] company with complaints about its lack of visibility, its safety standards." Edward Burkhardt, head of the company hasn't visited the town yet, though he's scheduled to appear today.

Burkhardt told CBC that there's "a lot of anger" from Lac-Mégantic being directed at him, and said he hopes that he's "not going to get shot."

*As of Friday, July 12, 2013, the death toll has risen to 28.

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.