Lawsuits designed to financially cripple small organizations or intimidate citizens into silence will no longer be allowed under the provincial government’s new anti-SLAPP legislation, welcomed as a step forward for free speech in B.C.

Strategic Lawsuits Against Public Participation (SLAPPs) are usually launched by powerful corporations or organizations to threaten and silence critics and discourage others from speaking out. Under the new legislation, which will be debated next fall, the courts can be asked to dismiss lawsuits that are designed to prevent the defendant from speaking freely on a matter of public interest.

Currently, the onus is on the person being sued to show that the organization suing them intends to silence legitimate criticism.

Attorney General David Eby, who presented the Protection of Public Participation Act in the Legislature Tuesday, said British Columbians deserve the freedom to peacefully engage in public debate without fear of unreasonable and financially ruinous legal action.

“Lawsuits that serve to silence and financially exhaust those exercising their right of expression exploit our legal system and only serve those with significantly deeper pockets,” Eby said.

Josh Paterson, executive director of the B.C. Civil Liberties Association, one of the organizations that has been appealing to the NDP government for legislation, said SLAPPs have become common in B.C.

“Many British Columbians and organizations in this province have been harassed, intimidated and litigated into silence by stronger parties with spurious — and in some cases outrageous — legal threats,” Paterson said.

The legislation, which is based on similar rules in Ontario, will allow SLAPP suits to be identified quickly, avoiding long and expensive trials, he said.

Even cases which are ultimately thrown out of court, or which never get to court, can be financially ruinous, pointed out Joe Foy, national campaigner for the Wilderness Committee. That organization was dragged through the courts by Taseko Mines Ltd. for five years.

The company launched the defamation case after the Wilderness Committee suggested on its website that opponents of Taseko’s proposed New Prosperity Mine, near Williams Lake, should comment on the federal government’s environmental review process.

“Those with financial means should not be able to use their means to limit the voices of others. You cannot put a price on free speech.”

The case was finally tossed out of court, with the B.C. Court of Appeal and the B.C. Supreme Court agreeing that the lawsuit was launched to silence critics on a matter of public importance, but there were still financial ramifications, Foy said.

The cost of insurance for directors and officers of the group soared from $2,000 to $7,500 a year — even though the Wilderness Committee was completely innocent — and staff time, spent collecting information and evidence, racked up a major bill, Foy said.

“All we were doing was encouraging our supporters to comment and, suddenly, you are stuck in a room with an 800 pound gorilla called Taseko who wants your blood,” said Foy, adding that, initially, neither level of government would lift a finger to help.

“That’s why we really appreciate what the provincial government is doing,” he said.

The situation is even more intimidating for individuals who speak out against something such as a neighbourhood development and are immediately slapped with papers for saying what they think, Foy said.

That was the case in Shawnigan Lake, when residents who spoke out against a contaminated landfill site, operated by South Island Resource Management Ltd., received legal letters.

Cowichan Valley Green MLA Sonia Furstenau, then a Cowichan Valley Regional District director, led the opposition to the contaminated soil site and, on Tuesday, she welcomed the government’s anti-SLAPP legislation.

“A vibrant public sphere is one of the fundamental components of a healthy democracy and no one should be afraid to voice their opinion on the issues that matter to them,” Furstenau said in an emailed response to a question from The Narwhal.

“Those with financial means should not be able to use their means to limit the voices of others. You cannot put a price on free speech.”

West Coast Environmental Law staff lawyer Erica Stahl said the legislation will go a long way towards strengthening democracy in B.C.

“If a corporation drags you to court for speaking out, you may spend years fighting the case — distracting you from the real public issues that need to be discussed and resulting in immense financial and emotional costs,” Stahl said.

B.C. previously had a brief experience with anti-SLAPP legislation.

In 2001 the former NDP government introduced Canada’s first such legislation, but it was repealed five months later by the newly elected BC Liberal government, which argued it would lead to a protest culture.

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.

As pipeline politics dominate headlines, British Columbia is poised to overhaul the process that guides how major resource and development projects proceed.

The review now underway of the environmental assessment process has the potential to restore public confidence in the system that evaluates large developments — from open-pit coal mines to pipelines to hydro dams — by considering the combined effects of multiple projects in a single region and instituting other sweeping changes that critics say are long overdue.

“We had this ridiculous situation in northern B.C. where we had 18 LNG projects, five different pipelines and an oil export project all proposed at the same time here,” said Greg Knox, executive director of the SkeenaWild Conservation Trust.

“People were asking ‘can Kitimat handle these LNG facilities, plus [the] Enbridge [Northern Gateway pipeline], plus [the] Rio Tinto’ [Alcan aluminum smelter], and wondering how it would all impact the environment and people’s health.”

The projects would have affected local air quality at a time when the B.C. government had already granted a permit to the Rio Tinto Alcan smelter allowing the company to increase sulphur dioxide pollution in the Kitimat airshed by more than 50 per cent.

Under B.C.’s current regulations, each resource project is assessed separately, as though the others do not exist. There is no mechanism to study the cumulative impact of various projects on, for example, a single caribou herd, or on overall water or air quality in a community like Kitimat.

Concern about additional air pollution from LNG plants prompted the Kitimat community to ask the B.C. government to conduct a regional environmental assessment to address the combined impact of all the projects and figure out how to proceed with fewer ecological and community impacts.

“We had pipelines going everywhere when it would have made sense to have a pipeline corridor,” Knox said.

But the request was ignored, Knox said.

“They refused. They basically sent some form letter. They rejected doing a regional environmental assessment. It was a boilerplate response.”

The Elk Valley coal mines in southeastern B.C. are another case in point when it comes to the cumulative impacts of resource projects. The valley, which is part of one of North America’s most important wildlife corridors, is home to five operating coal mines.

More than 100 years of coal mining has polluted the Elk River with worrisome contaminants such as selenium, a heavy metal highly toxic to fish and birds. Yet each new mining proposal is examined as though it is the only project polluting the river.

B.C. Auditor General Carol Bellringer flagged the government’s failure to manage the cumulative impacts of the Elk Valley mines as a cause for concern, pointing to the environment ministry’s failure to address known environmental issues and the “lack of sufficient and effective regulatory oversight and action” that has allowed the degradation of water quality.

B.C. Environment Minister George Heyman has said the review of the environmental assessment process is designed to restore public confidence in the system.

But how far must the changes go to examine the impacts of a proposed project like a coal mine expansion in the context of other significant resource projects in the same watershed or airshed? Or to prevent projects staunchly opposed by First Nations from advancing through the system at considerable cost to taxpayers?

Decisions currently made in ‘black box’

West Coast Environmental Law lawyer Gavin Smith and other experts say the overhaul of B.C.’s environmental assessment regime must address the lack of a clear rationale behind government decisions to grant certificates to projects with grievous impacts on First Nations and the environment — projects such as the $10.7 billion Site C dam.

“What’s been happening is that the environmental assessment regime goes into a black box,” Smith told DeSmog Canada.

“All of this work on the assessment happens, and it goes to ministers and they just make a decision. Communities are left feeling like all the time and effort they’ve put into the process has been totally ignored. It’s not actually even clear on what basis the decision was made.”

The B.C. government issued an environmental assessment certificate for the Site C dam in 2014, even though First Nations are fighting the project in court and the dam will cause more ecological damage than any project ever examined in the history of Canada’s Environmental Assessment Act, according to more than 200 leading Canadian scholars.

Only three projects ever rejected in B.C.

No matter how environmentally egregious a project is, or how intense the opposition from First Nations and other local communities, when a major resource project exits B.C.’s current environmental assessment process it is almost certain to be stamped “approved.”

“Even projects which, according to federal law, have been found to have unjustifiable impacts on the environment and on Indigenous culture and governance have been approved through the provincial system,” Smith said.

“It’s a pretty strong indication that the system is built to facilitate getting to yes.”

Only three projects have ever been refused a B.C. environmental assessment certificate, according to an email from the provincial environment ministry.

The Ajax mine, a 1,700-hectare open-pit gold and copper mine proposed for the outskirts of Kamloops by Polish mining giant KGHM, is the only project to be rejected in the past seven years.

A proposed landfill for Metro Vancouver garbage, on the Ashcroft Ranch near Cache Creek, was turned down in 2011, while the Kemess North gold and copper mine north of Smithers was rejected in 2008 — but then approved last year.

Rejected projects often return

Smith said there must be mechanisms built into the revamped environmental assessment process to ensure rejected projects can’t simply be tweaked and re-tendered.

Lawyer Sean Nixon vividly remembers his reaction on the day he heard Taseko Mines had submitted a new plan to extract gold and copper from the area around Fish Lake in B.C.’s interior, a lake sacred to the Tsilhqot’in Nation.

“The first response was incredulity,” recalled Nixon, who had represented the Tsilhqot’in National Government several years earlier during the environmental assessment for Taseko’s project, dubbed the “Prosperity” mine.

The B.C. government granted Taseko a provincial environmental assessment certificate in 2010.

But Ottawa refused to issue a federal certificate, largely because the mine would drain Fish Lake — known as Teztan Biny to the Tsilhqot’in Nation — and turn part of it into a toxic tailings pond that would destroy rainbow trout habitat and wetlands.

That was supposed to be the end of the matter.

But then the project was back again. This time, when Nixon heard about it in 2011, it had a different name: Taseko called it the “New Prosperity” mine.

The project was virtually the same, with one major exception. The company said it would move the tailings pond upstream from Fish Lake — enough of a change to spark a second federal environmental assessment review, at an unknown cost to Canadian taxpayers.

In B.C., the process the company went through was a breeze by comparison. Taseko merely requested an amendment to its environmental assessment certificate, which was duly approved by the provincial government even though Taseko lacked a clear plan to keep tailings pond contaminants out of Fish Lake.

“The province didn’t need details about how the company planned to keep chemical contaminants from destroying the lake,” Nixon told DeSmog Canada. “The mining company said it would work out the details later. And B.C. accepted that claim at face value.”

As with the Prosperity mine, there’s nothing to stop the Ajax project from being re-submitted to the B.C. Environmental Assessment Office with modifications and a new name.

The KGHM website still lists Ajax as a project “under development,” and the company has said it is considering its options.

Early-planning phase would axe non-starter projects

Smith says the revamped system needs to include the ability for the B.C government to say “this project doesn’t stand a reasonable likelihood of success so we’re not wasting taxpayer money doing, for example, a third assessment on a project that’s already been rejected.”

Sustainability criteria — such as targets for maintaining air and water quality – need to be built into the law, and decision-makers need to justify their decisions based on these criteria, Smith said.

To deal with projects as controversial and destructive as the Site C dam or the New Prosperity mine, Smith said B.C.’s environmental assessment process needs to include an “early planning phase,” during which the views of First Nations and other local communities are taken into account well before the project advances through the system.

Perhaps the project is “a total non-starter from the get-go,” said Smith, in which case communities should be able to say “there’s no way this project is going to happen.”

In the case of Taseko, the former B.C. Liberal government approved exploration permits for the New Prosperity project last summer during its final days in office, while Tsilhqot’in members were under a wildfire evacuation notice, even though the federal government had also refused to grant the project an environmental assessment certificate the second time around.

The company subsequently took the federal government to court and lost in December.

Yet Taseko’s website still lists the New Prosperity mine as one of the company’s five properties, while noting “there is considerable uncertainty with respect to successful permitting of the project.”

Smith said he would be surprised if the company submitted a third iteration of the project to the B.C. Environmental Assessment Office. But until B.C.’s environmental assessment process changes, he said, “on paper, Taseko’s New Prosperity project still exists and is still a risk.”

A 12-member advisory committee, led by ecologist Bruce Fraser and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council, is due to release a discussion paper on the review process in May, including feedback from the Environmental Assessment Office.

After a public comment period, the government will introduce reforms in the late fall.

The federal government is simultaneously overhauling its environmental assessment process with Bill C-69, but the bill has been criticized for falling short in several key areas.

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.

From West Coast Environmental Law

When Randy Saugstad realized that clearcut logging by forestry giant Tolko was probably going to affect the water he uses to raise cattle on his ranch, he went to the B.C. Ministry of Forests, Lands and Natural Resource Operations.

“We know,” they told him. “But we don’t have the power to stop them logging.”

They explained that B.C.’s forestry laws turned over the final decision about whether to log upstream from his ranch to Tolko’s foresters. Randy’s fears were later realized and his stream wrecked, so he sued Tolko, ultimately forcing the company to settle for an undisclosed amount (although the company continues to deny responsibility).

The B.C. government is in the process of conducting a review of professional reliance, so we have a chance to change some provincial laws to make sure that decisions are made in the best interest of British Columbians, and not corporations. This review is being headed by Mark Haddock, a long-time environmental lawyer and former West Coast staff member, who has previously written critically of the professional reliance model.

Currently, government staff are interviewing representatives of organizations with experience in professional reliance. But public consultations started December 1, 2017 and will continue until January 19th, 2018.

Professional reliance v. conflict of interest

Broadly, the term “professional reliance” refers to any situation in which the government relies upon industry-paid professionals — such as biologists, archaeologists, engineers, geoscientists and environmental scientists — to conduct studies, monitor activities, and more.

However, in cases ranging from sewage management to pesticide regulation to forestry, B.C. laws often go further — turning government decisions over to those private professionals, and restricting the ability of the government to intervene when things go wrong.

B.C.’s Forest Practices Board, a government-created watchdog, warned in 2015 that:

In recent years, [we have] seen situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest. … [C]onflicts between resource-users could have been avoided if district managers had the authority to intervene to ensure operations would meet local management objectives and respect tenured interests.

Don’t get me wrong — generally professionals are educated, dedicated and highly competent people. As a lawyer, I am a professional. In most cases, professionals aim to use their skills in the service of their clients and with an eye to making the world a better place.

But although I respect my fellow lawyers, I wouldn’t want a lawyer hired by a mining company to have the last word on that company’s legal obligations to protect fish from toxins. That’s what we have judges for — to decide between different interpretations of the law. And yet, engineers and specialists hired by mining companies have final sign-off on how close the companies can build to a fish-bearing stream.

Professionals are important sources of expertise and information. But when they actually have free reign to make decisions about their employer’s use of public resources, this looks, to many people, like the fox guarding the hen house (or perhaps just paying for its security).

Proponents of professional reliance argue that professionals have training, oversight and accountability, so they can apply rules intended for the protection of human health or the environment just as well (and sometimes better) than government professionals.

They argue that government’s role is to set the standards and then monitor to make sure that those standards are met, ensuring that there are consequences if they aren’t.

Experience in B.C. has shown that there are a number of problems with that theory — from weak environmental standards that allow professionals to trade off environmental values against economic values, to documented cases of corporations cherry-picking their professionals, to the government’s failure to enforce when standards aren’t met.

This post focuses on just one fundamental flaw with corporate professionals taking over government approval functions: the assumption that professionals can be objective in applying legislative rules, especially when they do so for a client with a vested interest in a particular outcome.

Behaviour economics and professional reliance

In The (Honest) Truth about Dishonesty, behavioural economist Dan Ariely gives a firsthand account of his experience as a paid expert witness in a court hearing. Before doing so, he reviewed the transcripts of testimony given by some of his colleagues in past trials:

… I was surprised to discover how one-sided their use of the research findings was. I was also somewhat shocked to see how derogatory they were in their reports about the opinions and qualifications of the expert witnesses representing the other side — who in most cases were also respectable academics.

Ariely nonetheless agreed to testify and was “paid quite a bit to give my expert opinion.” He became aware that the lawyers were “trying to plant ideas in my mind that would buttress their case.”

He explains:

They did not do it forcefully or by saying that certain things would be good for their clients. Instead, they asked me to describe all the research that was relevant to the case. They suggested that some of the less favorable findings for their position might have some methodological flaws and that the research supporting their view was very important and well done. They also paid me warm compliments each time that I interpreted research in a way that was useful to them. After a few weeks, I discovered that I rather quickly adopted the viewpoint of those who were paying me. The whole experience made me doubt whether it’s at all possible to be objective when one is paid for his or her opinion.

Ariely’s candid account of his own experience is supported by the wide range of behavioural economic studies that demonstrate that such interactions are only human.

Ariely writes:

One other common cause of conflicts of interest is our inherent inclination to return favors. We humans are deeply social creatures, so when someone lends us a hand in some way or presents us with a gift, we tend to feel indebted. That feeling can in turn color our view, making us more inclined to help that person in the future.

Ariely recounts a study which attempted to measure the impact of a financial gift on appreciation of art. The participants were told that their payment for participating in the study was being sponsored by an art gallery (“Third Moon” or “Lone Wolfe”). They were then shown a series of sixty paintings and asked to rate how much they liked or disliked each, while they were hooked up to a brain imaging scanner (an fMRI). Each picture displayed a small logo of an art gallery — including some from Third Moon or Lone Wolfe galleries — as if the pictures had been provided by those galleries.

As you might suspect, when researchers examined the ratings they found that participants gave more favorable ratings to the paintings that came from their sponsoring gallery… You might think that this preference for the sponsoring gallery was due to a kind of politeness … [but] the brain scans showed the same effect; the presence of the sponsor’s logo increased the activity in the parts of the participants’ brains that are related to pleasure… This suggested that the favor from the sponsoring gallery had a deep effect on how people responded to the art.  And get this: when participants were asked if they thought that the sponsor’s logo had any effect on their art preferences, the universal answer was “No way, absolutely not.”

This study suggests that indebtedness actually changes the way that people perceive the world — and that they don’t realize it. It also found that increasing the amounts of payments to the participants increased this bias.

Of course, proponents of professional reliance might argue that the participants in the study were not professionals (art critics for example). And that’s true. But professionals are still human, and professionals can be very influenced by personal factors. For example, one well-publicized study showed that judges (highly trained professionals) are much more likely to grant parole to defendants at the beginning of the day, or after a snack, than those who appear before them when they are hungry.

Our legal system (with a few exceptions) has always required that a government decision-maker be unbiased and, in particular, not receive a financial benefit from his or her decision.

And yet under many B.C. environmental and public health laws, professionals who are paid by a party with a definite interest in the outcome are making key decisions. For example, in the controversial Shawnigan Lake contaminated soil debacle, neither the government nor the Association of Professional Engineers and Geoscientists of B.C. had any issue with the project’s engineers actually having an ownership interest in the project.

Where next?

Critics of professional reliance refer to professionals who do what their paying client wants as “biostitutes.” While there are undoubtedly professionals who are less than professional, I think the challenges of professional reliance are much broader and more difficult to counter than a few bad actors.

If government establishes a standard but leaves it to industry professionals to interpret it, then even well-intentioned professionals may start to interpret ambiguities in favour of clients, rather than the public interest. That’s not a slur on professionals — professionals are supposed to problem-solve for their clients within the bounds of the law.

At the same time, the B.C. government has spent almost two decades downsizing the departments responsible for regulation, monitoring and enforcement (a trend which actually began in the final years of the previous NDP government). As a result, it would be difficult to turn all environmental and public health decisions back over to government.

Mark Haddock’s challenge is to balance the fundamental difficulties of professional reliance (as implemented in B.C.) with the resources available to government. Fortunately, his past report includes some general principles — suggesting, for example, that government should retain legal authority for decisions with particularly important consequences for human health and the environment.

The behavioural economics research, as well as basic principles of unbiased decision-making, suggest that one important issue for the review to grapple with is whether professionals employed by industry players can ever be neutral — let alone pro-public health and pro-environment.

One possible solution is having industrial players pay the cost of evaluating their proposals, but having the professionals employed by and accountable to the government. This may not entirely remove the bias towards the company ultimately paying your bill, but it would create a competing legal and employment obligation to publicly elected officials.

At West Coast Environmental Law we propose that:

• Government (and not industry) select the professionals from a pre-approved list of qualified professionals. Professionals who deliver biased or poor quality work could be removed from the list. A similar system is already used for professionals working with contaminated sites.
• Except where specialized expertise is required, there’s a lot to be said for making the selection random, so that industry cannot influence government staff in the selection.
• The professional would sign a retainer agreement with the government, not the proponent, and government would have the ability to dismiss poorly performing professionals and/or remove them from the pre-approved roster. Conflict of interest rules would prevent the professional from working for the company whose project is under consideration (although the professional might well still do work for clients within the same industry).
• All documents prepared by the professional should be owned by the government – which then makes them available to the public under Freedom of Information laws (unlike the current professional reliance model, under which key documents are sometimes kept from the public).

What do you think? Would government-employed/industry-funded professionals help address concerns about the bias of industry-funded professionals? What do you think should be done to ensure that professionals protect the public interest, and not just the interests of industry? Tell us in the comments below.

Public consultations will continue until January 19, 2018.  Please let the government know what you think of professional reliance.  Click here to fill out a brief survey or here for information on sending detailed submissions.

Image: Premier John Horgan visits the Rio Tinto Alcan smelter in Kitimat. Photo: Government of B.C. via Flickr

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 prospect of a new provincial government in B.C. has sparked fresh political debate about Kinder Morgan’s Trans Mountain pipeline, which is opposed by B.C.’s NDP and Green Party, despite already receiving provincial and federal approval.

“There are no tools available for a province to overturn or otherwise block a federal government decision,” stated Alberta Premier Rachel Notley this week.

But is that really the case?

The short answer is no.

“There’s no question that B.C. has tools in its toolbox, which it has not yet used and that it should use,” says Jessica Clogg, executive director and senior counsel at West Coast Environmental Law.

That very prospect has drawn incendiary commentary, including claims by the Canada West Foundation that a reversal of the approval “strikes at our very democracy.”

On the contrary, B.C. Green Party Leader Andrew Weaver argued in the Globe and Mail that reconsidering Trans Mountain, which would increase the number of oil tankers plying B.C.’s waters seven-fold, would be a “triumph of democracy.”

“If we care about the integrity of democracy, we are honour-bound to reconsider the Trans Mountain decision,” he wrote. “Federalism doesn’t mean that one province gets to tread on the rights and threaten the environment of another.”

Indeed, many of the seats the B.C. Liberals lost were in Lower Mainland ridings, such as Burnaby, that would be most affected by the new pipeline.

Industry analysts are already sounding the alarm before Kinder Morgan’s proposed $1.3 billion IPO for its Canadian unit.

“The really close B.C. election vote puts pressure on the Kinder Morgan IPO,” Colin Cieszynski, chief market strategist at CMC Markets, told Reuters. “You run the danger of the whole thing getting stalled for years or going into limbo.”

With that in mind, here are three ways a new B.C. government could stop — or at least delay — the Trans Mountain pipeline.

1) B.C. Government Could Order Its Own Environmental Assessment

Revisiting a provincial environmental assessment is one of the most obvious means by which the B.C. government could “overturn or otherwise block” the construction of the Trans Mountain Pipeline, says Chris Tollefson, executive director for the Pacific Centre for Environmental Law and Litigation.

“I think that avenue is quite plausible given the fact that process wasn’t robust and raised serious questions — and continues to raise serious questions — about consultation with First Nations,” he says.

A January 2016 verdict by the B.C. Supreme Court in favour of Coastal First Nations (CFN) and Gitga’at First Nation stated that the province has to make a clear decision about its environmental assessment process (rather than simply continue to accept the federal assessment as its own through an “equivalency agreement” with the National Energy Board).

That presented a chance for B.C. to do its own environmental assessment to fill the holes of the National Energy Board review — holes the B.C. government itself had pointed out.

But instead of doing that, B.C. quietly confirmed in March 2016 that it had accepted the heavily criticized National Energy Board report as its own.

A new government could examine what the province’s Environmental Assessment Office (EAO) decided, conclude that it wasn’t adequate and order a proper environmental assessment.

Tollefson says it would be “perfectly within the rights of British Columbia to do that” given the well-documented flaws in the National Energy Board review of the Kinder Morgan project, which restricted public participation, ignored impacts on marine mammals and ecosystems, excluded cross-examination of evidence and failed to assess potential upstream emissions.

Some would make arguments that a government can’t change its mind after the fact, he says. But Tollefson suggests that governments change their mind all the time, and it’s a “function of democratic politics: that you elect government that make course corrections.”

“If the previous government — and in this case, the EAO — made a poor decision, British Columbia should be allowed to fix it,” he says. “That doesn’t mean that B.C. can kill the project, or delay it indefinitely. It just means that British Columbia finally will take a proper look at and make a proper assessment of this project.”

2) New Legislation

Another option for a new B.C. government would be to introduce a piece of legislation that directly pertains to the pipeline. For example, Clogg suggests an act that orders a health and safety assessment for the project, or requires the conducting of further studies.

This would lead to better information and a broader understanding of the risks of the project, as well as help to ensure that indigenous peoples are fully included in the process.

Clogg says such a process could technically result in the federal government choosing to challenge it under constitutional law, potentially going all the way up to the Supreme Court of Canada and delaying the process for many more years.

But she suggests it would be “extremely politically risky” for the federal government.

“Just because you could legally challenge a B.C. ‘no’ and after years and years in court you might win, think about the political risks in them doing that,” she says.

“B.C. definitely has the ability to act to protect things that are within its constitutional jurisdiction, it has independent obligation to do right by indigenous peoples — and many of them are very opposed to the project — and it would be nothing but a good thing to do that work, to enable it legislatively, and see where the cards fall,” she said.

“I wouldn’t want to be the federal government who made that choice to try stand down British Columbians.”

3) Wait for Legal Challenges to Play Out

Tollefson adds that there are a series of legal challenges pending that are brought by indigenous nations, conservation organizations and municipalities. Those will take time to be dealt with by the courts, he says.

“I don’t anticipate this project will be able to move forward until those challenges are dealt with,” he says.

The Alberta government was granted intervener status in the upcoming judicial review about the Trans Mountain pipeline, which is anticipated to take place in the fall.

Only time will tell what happens on that front.

But both Clogg and Tollefson emphasize the same thing: so long as it’s under the rule of law, the next B.C. government will have a wide range of options available to it to ensure the Trans Mountain Pipeline benefits its citizenry.

“Their main regulatory obligation in relation to this project relate to the environmental assessment that they should have done and never did, and their duty to ensure that projects such as this do not proceed until they’ve fully discharged their duty to consult First Nations,” Tollefson concludes.

“I think on both of those fronts, a new government may well conclude that there’s more work to do.”

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.

A bill to restrict the movement of oil off the north coast of British Columbia has been formally tabled by the federal government in the House of Commons, according to a statement released by Transport Canada Friday.

The proposed legislation, which would restrict tankers carrying more than 12,500 metric tons of crude oil from entering or exiting north coast ports, must now make its way through Parliament.

“Today is a positive day for us,” Gavin Smith, staff counsel at West Coast Environmental Law, said.

“We’re very happy to see the federal government follow through on its promise to introduce a tanker ban.”

Smith said the legislation will prevent megaprojects like the Northern Gateway pipeline from being built in northern B.C. but added he has yet to review the text of the bill in detail.

“It appears to be introduced along similar lines to what the government signaled it was going to do in late 2016.” West Coast Environmental Law released a detailed analysis on the proposed tanker ban legislation in early 2017.

Here are five things you need to know about the newly tabled oil tanker ban from that analysis.

1. Tanker Ban Won’t Ban Supertankers of Refined Oil from the Coast

While the proposed legislation does prevent supertankers of crude oil and similar hydrocarbon products from moving in and out of northern ports in large quantities, it does not prevent refined oil products from doing the same.

This leaves the door open for future major oil refinery projects on B.C.’s north coast.

There are currently two proposed oil refinery projects for Kitimat, B.C. Both Kitimat Clean, which would refine 400,000 barrels of oil per day and the Pacific Future Energy Refinery Project, which would refine 200,000 barrels of oil per day, are at various stages of review under the Canadian Environmental Assessment Act.

2. Tankers Carrying 12,500 Tons or Less of Oil Excluded From Ban

Once passed, the bill will only prevent vessels carrying more than 12,500 tons of crude oil from stopping at coastal ports. This allows northern communities reliant on oil for heating and other purposes to continue to receive supply shipments.

Joyce Henry, Director General of Marine Policy with Transport Canada said “it was never the Government’s intent to prohibit resupply. Shipments below 12,500 metric tons will continue to be allowed.”

In previous iterations the tanker ban would have prevented the shipment of more than 2,000 tons of crude oil but this bar was eventually raised to the current 12,500 ton threshold.

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

3. Tanker Ban Would Not Prevent Another Nathan E. Stewart From Happening

The tanker ban was first announced by the federal government after Transport Minister Marc Garneau traveled to Heiltsuk territory to witness a diesel spill from the Nathan E. Stewart, a sunken fuel barge.

Despite this fact, the tanker ban would not prevent another similar spill from happening. The ban will not affect current fuel barge traffic.

Jess Housty, tribal councilor with the Heiltsuk First Nation previously said that the tanker ban “changes nothing.”

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

The Nathan E. Stewart and other U.S.-bound fuel barges can pass through B.C.’s internal waters even though a Voluntary Tanker Exclusion Zone exists to prevent the transport of international oil from approaching B.C.’s coast line. The tanker ban does not change that.

“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,” Housty said.

4. South Coast of B.C. Near Vancouver and Victoria Not Protected

The tanker ban does not impact tanker traffic on B.C.’s south coast where the terminus of the Kinder Morgan Trans Mountain pipeline is located. The ban extends from the northern B.C./U.S. border and stops near the tip of Vancouver Island.

Recently the federal government approved a massive expansion of the Trans Mountain pipeline, a change that will lead to a seven-fold increase in tanker traffic in the Burrard Inlet.

5. Details of Banned Fuels Subject to Change

The tanker ban will prevent the movement of large amounts of crude oil from traversing coastal waters in B.C.’s north.

But the ban will also cover other heavy hydrocarbons known as persistent oil products in a ‘schedule’ appending the legislation.

According to Smith, the federal government will determine what types of products are listed in that schedule.

“That approach gives 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 already, for example, said that jet fuel, propane and liquefied natural gas (LNG) will be permanently excluded from the ban.

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 National Energy Board (NEB) is a “captured regulator” that has “lost touch with what it means to protect the public interest.”

That’s what Marc Eliesen — former head of BC Hydro, Ontario Hydro and Manitoba Hydro, and former deputy minister of energy in Ontario and Manitoba — told the NEB Modernization Expert Panel on Wednesday morning in Vancouver.

“The bottom line is that the board’s behaviour during the Trans Mountain review not only exposed the process as a farce, it exposed the board as a captured regulator,” he said to the five-member panel.

“Regulatory capture exists when a regulator ceases to be independent and objective.”

The Trans Mountain pipeline was reviewed with what many consider a heavily politicized NEB process, one that Trudeau had committed to changing prior to issuing a federal verdict on the project.

That process included what Eliesen describes as gutted environmental legislation, the removal of “essential features of a quasi-judicial inquiry” including the cross-examination of evidence and the limiting of participation of intervenors in such a way it “predetermined the outcome in favour of the pipeline proponent.”

Eugene Kung, staff counsel at West Coast Environmental Law, said in an interview with DeSmog Canada that the hearings for the project were the worst he’s seen in almost 10 years of practising regulatory law.

But that doesn’t seem to be an accident. Eliesen — who withdrew as an intervenor from the NEB review of the Trans Mountain project in 2014 due to the “fraudulent process” — argues the problems go far deeper than just the Trans Mountain review, predominantly linked to the “revolving door” between industry and the board.

“This ‘modernization’ is some spinmaster’s term,” he said. “It’s about public trust and the fact the NEB has lost this trust to the Canadian public.”

Move of NEB Head Office to Calgary Arguably Compromised Independence

In 1991, the NEB’s head office was moved to Calgary, and legislation was changed to require all permanent members to reside in Calgary.

It’s a decision that Eliesen says was completely unexpected and ultimately a political move by former Prime Minister Brian Mulroney; most other regulatory agencies are located in Ottawa to prevent being influenced by the industry in which they’re supposed to regulate (including finance regulators, even though Toronto is often considered Canada’s finance city).

If it was indeed politically driven, the plan seems to have worked.

More than two-thirds of the staff didn’t move to Calgary, and their positions were subsequently filled by former employees of the oil and gas sector. This has resulted in what some call a “revolving door” between the two; as Eliesen pointed out in his presentation, some former NEB chairpersons have been inducted into the Canadian Petroleum Hall of Fame.

“I’m not suggesting any nefarious activities,” he says. “It’s just that you adopt the headspace and the attitude of the energy industry of Alberta. When you have the legislation changed as well to ensure that all the permanent members reside in Calgary, then you have a major, major bias.”

It’s something he argues got worse under former prime minister Stephen Harper, who took full advantage of it in his final months (appointing many former industry veterans to key positions with the board, including Steven Kelley, who previously worked as a consultant for Kinder Morgan on the Trans Mountain project).

Even one of the five members of the NEB Modernization Expert Panel previously served as president of the Canadian Energy Pipeline Association. That same person, Brenda Kenny, signed a 2011 letter to key cabinet ministers petitioning for regulatory overhaul.

“She is in a real conflict of interest,” Eliesen says. “She’s the last person to be on a panel trying to evaluate how to bring back to the public trust to the National Energy Board.”

How to Fix the National Energy Board, Canada's Captured Regulator https://t.co/mHjDbb2iRj #cdnpoli #EnergyEast #TransMountain @james_m_wilt pic.twitter.com/8So7hzWUQ1

— DeSmog Canada (@DeSmogCanada) February 10, 2017

Many Structural Changes Required to Fully ‘Modernize’ the NEB

Kung, who also presented to the expert panel on Wednesday, expressed concerns about the relationship between the NEB and industry. He says there are many structural ways that such capture can be fixed.

Currently, the NEB receives a majority of its funding from industry, something Kung suggests should be addressed.

Its “very important role” in data collection and forecasting (such as the exhaustive “Canada’s Energy Futures” reports) don’t currently consider climate commitments such as the Paris Agreement, with the latest NEB report imagining a “business-as-usual” world that features an increase of four to six degrees Celsius in average global temperatures. That’s another thing that Kung says needs to change in the modernization.

Patrick DeRochie — climate and energy program manager at Environmental Defence — agrees, arguing that the NEB needs to better align climate and energy policy: “It’s not there right now. With this energy transformation we’re seeing for renewables right now, it’s not adequate. We need to bring that into the 21st century.”

(Conversely, Eliesen disagrees and suggests the NEB be solely a quasi-judicial agency and the energy information and advisory mandate be removed).

A key concern for Kung is also about NEB personnel. He acknowledges the board possesses technical expertise and that it’s tricky to find that kind of knowledge in people who haven’t worked in the industry at some point.

“But the way you can separate it structurally is making their role slightly different so they’re not making a decision, for example, about national or public interest,” he says. “Because that’s an impossible decision to make by a captured regulator.”

Proposed Solutions Include Replacing Board Members, Relocating Head Office

Eliesen proposed two major solutions to the review panel.

First, remove all current board members and replace them with people that reflect a broad range of background and expertise, not just the oil and gas industry. And secondly, relocate the NEB’s head office back to Ottawa.

These two decisions would create a firewall of sorts between industry and the board.

In addition, he suggested that environmental assessments be undertaken outside of the NEB, enforcement of pipeline safety be increased, and proponents be required by the NEB to provide alternative routes for pipelines.

Vancouver was only the third stop of 10 for the expert panel. The final “engagement session” in Montreal will conclude on March 29.  The panel is required to submit a report and recommendations to the Minister of Natural Resources around May 15.*

It’s a timeline that DeRochie suggests has made the process “really rushed,” noting that some of the 12 discussion papers weren’t even posted on the NEB Modernization Panel website by the time the first engagement sessions started in Saskatoon. However, DeRochie presented at the engagement session in Toronto on Feb. 1, and said that he went in “kind of cynical” but emerged feeling like they “really did seem like they wanted to engage us and fix this regulator.”

“It’s either get this right or face a bunch of political and legal challenges to every single energy project moving forward,” he says. “I think all stakeholders — industry, government, indigenous communities and ENGOs — want to avoid that.”

* Update: Feb 9, 2017. This article originally stated the panel report was due March 31, as stated on the National Energy Board's website. However, the date has been updated to May 15, as stated in the National Energy Board's terms of reference for the review panel.

Images: Natural Resources Minister Jim Carr. Photo: Canada 2020 via Flickr (CC BY-NC-ND 2.0)

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.

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

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.

If you feel exhausted by Canada’s fevered debates about oil pipelines, liquefied natural gas terminals, renewable energy projects and mines, there just might be relief in sight.

Right now, the federal government is reviewing its environmental assessment (EA) process. Yes, it’s reviewing its reviews. And while that might sound kinda boring, it could actually revolutionize the way Canada makes decisions about energy projects.

“My highest hope is that Canada will take advantage of this once in a lifetime opportunity … and take a really visionary approach to environmental assessment,” said Anna Johnston, staff counsel at West Coast Environmental Law.

That could include implementing something called “strategic environmental assessment,” which creates a forum for the larger discussions about things like oil exports, LNG development or all mining in an area.

So instead of the current environmental assessment process, in which pipeline reviews have become proxy battles for issues such as climate change and cumulative effects, there’d actually be a higher-level review designed specifically to examine those big-picture questions.

This week, the panel that will help determine the future of environmental decision-making arrives in B.C. at the end of its cross-country tour.

We spoke to Johnston — who is part of the advisory council providing advice to the panel — about the review, how strategic environmental assessment could help move Canada’s energy conversation out of gridlock and how Canadians can get involved.

Q: Why does this review matter to everyday Canadians?

What we saw with CEAA 2012 [the changes to environmental assessment made under the Harper government] was that it was a real erosion of democracy and it put Canadians’ environment at risk.

We’re in the middle of this national conversation about what we’re going to do about climate change, for example, and we’re seeing protests across the country about projects that have gone through environmental assessment largely because people have felt like the environmental assessment was inadequate and there was a lack of transparency and accountability in the review process.

Good environmental assessment allows the public to have a meaningful say.

The public really cares about climate change and they really care about their ability to have a say. So it’s about trusting government and it’s about knowing that you’re able to have a say and influence decisions.

But then it’s also about, on this other level, how are we going to get to carbon neutral by 2050? Environmental assessment is the main tool for making decisions about proposals that affect the environment.

There’s a lot of concern that no matter how good the [climate] plans might be that we need to make sure they influence the project-level decisions.

Q: How should we best grapple with those big societal questions?

Right now we’re grappling with them at the project level. So when Kinder Morgan or Energy East proposes a pipeline to take tarsands bitumen to tidewater all of these concerns come up at that project level, where it takes an incredibly long time and the reviewing bodies and the proponent argue it’s outside of the scope of the assessment.

The solution is to create a forum for those policy-level discussions where you have essentially an environmental assessment of a government policy or a plan to have oil to tidewater, without tying that conversation to a particular project.

Right now we’re trying to have these really high-level national conversations about climate change, tarsands, at the same time as in a project-level assessment, getting down into the weeds of whether or not a pipeline should be sited here, maybe on a different route, what are the impacts on a particular species?

So it’s just putting way too much into one basket.

Best practices in environmental assessment say you have to begin with what’s called a strategic environmental assessment. And that’s where you have those policy discussions. Once you get that strategic assessment that has examined those bigger picture policy-level issues then those assessments can provide guidance at the project level.

So it might be that if we’d had a national conversation about oil to tidewater 10 years ago, we would have been able to decide as a country that that was not a viable idea, that it was going to bring us away from any reasonable goals to do our fair share on climate change and that we’d never approve a project. And that would have saved everybody a ton of money and a ton of time.

Q: How does a strategic environmental assessment actually work? In some senses, aren’t those policy-level decisions typically political decisions?

Yea, they are political decisions but we already have a requirement that government plans, policies and programs that require ministerial approval get a strategic environmental assessment. That requirement is set out in the cabinet directive.

The problem is that it’s not being followed. The auditor general and the commissioner of environment and sustainable development have found that time and time again that government departments and agencies are not doing strategic environmental assessments in the vast majority of cases.

So it’s already required, the government has already acknowledged the importance of it. It’s just that we need to put that requirement into legislation so that there’s more accountability.

There’s another kind of strategic environmental assessment where you are doing a regional scale environmental assessment, but you narrow it in some way so you might only be looking at all mining in an area, or all oil and gas in an area, and you come out with a regional-scale plan for how you want that kind of development to occur.

There’s pretty broad consensus among not just environmental groups, but also among industry groups, that doing those kinds of regional-scale assessments would really ease the burden on proponents, on the public, on indigenous peoples, on government, because it would mean first of all that we’re creating a vision for what we want development in the region to look like and how we want the environment in the future to look like and then set out these pathways for how to get there.

Then we’d have that strategic-level guidance for the project-level assessments. It would ease the burden at the project level

Q: Would this work for something like the development of LNG, for instance?

Yea, that’s the perfect example of where we should have done a strategic EA.

Right at the very first whisperings of LNG in B.C., we should have done a strategic EA of LNG in B.C., figured out whether we should have LNG at all — could we have LNG and achieve our climate obligations and goals?

Are there particular communities who would like to have LNG? Are there particular environments that could sustain an LNG facility? Are there particular environments that are a no-go zone? Many would say that Lelu Island should have been flagged right off the bat as a no-go zone.

If we had done that at the very outset, then when the project proponents come along, they’d have the guidance from a strategic EA that would have said: maybe we can have one or two in B.C. Here are the different temporal spacings they’d need to occur in and here are the locations, the pipeline routes and the LNG facility locations where it might work. And then once you get to the project-level EA you’re looking much more closely at the specifics.

Q: Do you feel hopeful about the outcome of the review?

Yes, I feel hopeful. I think the biggest challenge that this panel is facing right now is how to drill down to really concrete recommendations to the government. So they’re hearing a lot of things … at the 50,000-foot level … and the difficulty for them will be drilling down to a more practical implementation level.

Q: Will fixing the environmental review process really solve our problems? Or ultimately do we need that to come from the political level?

I think you need both. You need elected decision makers making good decisions for the people who voted them in. But you can’t rely exclusively on them so we need to have good processes. And that’s one of the main purposes of environmental assessment.

Q: What is the thinking about recommendations — should they be binding?

There are two schools of thought on that … the minister probably should retain some sort of discretion but I think that the legislation needs to set out much more explicitly the criteria by which she makes her decisions … right now, our decision-making process is the minister concludes: “Will this project result in significant adverse impacts and, if so, are they justified?”

And the justification decision is made by cabinet behind the dark curtains of cabinet, where they get to take into consideration anything, even beyond the environmental assessment, including political considerations.

That black box of the justification decision is what really undermines public confidence in the process.

So you can have ministers making decisions, but the legislation should really clearly set out the decision-making criteria, so that the public, so that indigenous people, so that proponents know exactly what this project needs to achieve in order to get approved.

Q: What are the biggest points of push back from industry?

One of the things I’ve been hearing from industry is that they think the provinces should be entrusted exclusively to do environmental assessments where they have jurisdiction or where there’s shared jurisdiction. I don’t share that view. I think you get better processes when you have both parties, or all parties, at the table, collaborating, drawing on the highest standards of process.

Q: Who should participate in these hearings?

Anyone who is concerned about the environment, who has experience with environmental assessment, anyone who was shut out of the Kinder Morgan [Trans Mountain] environmental assessment or had to fill out those long forms, and anybody who has concerns about how the public is engaged in decision-making.

There are two different types of public process: there are the hearings, which are a little bit more formal and you get one-on-one time with the panel for 15 minutes. And then there are the workshops, which more people are able to attend and it’s more of a dialogue on key questions on federal EA and I think that it’s really important that the panel get a diversity of experiences and a diversity of voices.

This isn’t just for experts for sure.

More Resources

• The panel is holding sessions in Kamloops, Fort St John, Prince Rupert, Vancouver and Nanaimo, finishing up on December 15. Find out how to get involved.
• The panel’s report will be released on Jan. 31, 2017, followed by the release of the Fisheries Act review in mid to late February and the review of the National Energy Board on March 31. *UPDATE: In December, the panel’s deadline was extended until March 31. There will also be a 30-day public comment period on the report.
• Read Johnston’s full participant’s guide for the environmental assessment review.

This interview has been condensed. 

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.

Thirteen years ago, Canada’s Department of Fisheries and Oceans (DFO) issued almost 700 authorizations to projects that would negatively impact fish habitat, mostly in the resource extraction sector: forestry, mining, oil and gas.

By last fiscal year, that number had dropped to 74.

One would think that’s a positive sign. Perhaps the DFO approved far fewer projects, echoing its ambitious 1986 commitment to “no net loss” of fish habitat?

That wasn’t the case.

Thanks to a number of changes — mostly via the “Environmental Process Modernization Plan” of the mid-2000s and the Conservative Party’s industry-led gutting of the Fisheries Act in 2012 — most projects are now “self-assessed” by proponents.

Over the same span, the DFO’s budget was repeatedly slashed, increasingly undermining the department’s ability to monitor and enforce contraventions with “boots on the ground.”

“Harm is happening at the same levels that it always has been,” says Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental, water and natural resources law. “It’s just that fewer and fewer proponents are coming to DFO and asking for authorization. That’s the reality on the ground.”

The federal government is currently reviewing Canada’s fish habitat protection regime via a standing committee and public consultations, with recommendations expected in early 2017.

Its verdict could determine the fate of millions of trout, salmon, pike, bass and halibut, which could in turn impact the future of projects like the Mount Polley mine, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG export terminal.

Fish Habitat No Longer Explicitly Protected

The specifics of fish habitat protection are very complex, involving lengthy acronyms, highly precise wording and subsections of subsections.

Such details also matter a great deal.

Maude Barlow of the Council of Canadians and Mark Mattson of the Lake Ontario Waterkeeper argued in the 2014 that “the Fisheries Act was arguably the most important piece of anti-pollution legislation in Canada,” while Linda Nowlan of the WWF described it as “Canada’s strongest environmental law.”

There’s a reason that Barlow and Mattson phrased it in the past tense. As part of the Conservative government’s overhaul of environmental assessment processes via its infamous 2012 omnibus bill, Section 35 of the Fisheries Act was completely rephrased.

No longer did it refer to the “harmful alteration, disruption or destruction of fish habitat,” known as HADD. Instead, the act prohibited “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” with “serious harm” defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat,” known as as DPAD.

The difference between HADD and DPAD may seem small. But there’s a good reason that 625 scientists signed a letter to Stephen Harper in 2012 opposing the change.

The act no longer explicitly prohibits damage to fish habitat. Instead, it focuses on protecting “fisheries” and muddies the waters with the idea of a “permanent alteration.” This meant that project proponents don’t have to be overly concerned about the DFO cracking down as the concept of “permanent harm” is so ambiguous.

“It’s a lot easier to look at a stream or river or marine area and decide the habitat has been ‘altered, disturbed or destroyed’ rather than, you know, finding the dead fish and tying that back to a particular activity like somebody bulldozing the side of the stream or something,” says Nowlan, who now works as staff counsel at West Coast Environmental Law.

DFO Gave Self-Assessment Powers to Companies

It’s not like all was well pre-2012.

Olszynski says the number of referrals (which he describes as “inquiries or authorization requests from proponents”) gradually dropped from 13,000 to fewer than 3,500 between 2003 and 2014, accompanying the fall in actual authorizations. At that time, any authorization by the DFO triggered a mandatory environmental assessment (EA).

However, the DFO didn’t have the capacity to conduct basic screening for every project, let alone a full EA as mandated by the Canadian Environment Assessment Agency.

That meant that companies were largely responsible for ensuring that fish habitat was protected with very little oversight, especially in the North.

Can Canada Save Its Fish Habitat Before It’s Too Late? https://t.co/HqMiE7wbdc #cdnpoli #FisheriesAct @WCELaw @molszyns @nikkiskuce pic.twitter.com/bHqYTgLHJD

— DeSmog Canada (@DeSmogCanada) November 14, 2016

Cumulative Effects of Thousands of ‘Minor’ Projects Unchartered

Even that meagre voluntary requirement disappeared in 2012. Today, proponents can’t notify the DFO of proposed projects even if they want to: the system has since been replaced with a “self-review” website that provides information about what projects do and don’t require authorization.

Although the new Fisheries Act wasn’t actually implemented until November 2013, the number of referrals to the DFO dropped dramatically after it was announced in 2012, which Nowlan says “sent a message out to the world that habitat wasn’t as important.”

That was compounded by the aforementioned decline in enforcement, as well as a failure to increase penalties to a level that actually deters bad behaviour.

“In 2012, a big shift was instead of having habitat biologists and protection officers on the ground, out there, able to give fines and all the rest of it, you have people either fired or shifted to different positions,” says Nikki Skuce, project director of Northern Confluence. “There was a whole bunch of offloads.”

Nowlan says there haven’t been any prosecutions for fish habitat damage in Canada since, which is “quite astonishing.”

This has also resulted in even less information available to the DFO. One of the major impacts of this is the inability to assess cumulative effects of projects, such as how a series of small individual withdrawals of water from a river or stream changes flow rate. Together, thousands of minor projects could have massive combined impacts on fish habitat.

If actually tracked, such cumulative effects could be input into databases analyzed via maps and GIS software. Olszynski says that, eventually, the government could begin to tailor regulatory regimes and offsetting requirements to what’s happening on the ground.

“Over a couple of years, hopefully, DFO would start to develop a better sense of the activity on the watershed,” he says. “That’s part of that ability then to finally answer the question that DFO has never been able to answer, which is ‘what’s happening with fish habitat in Canada?’ ”

‘You Have to Have Habitat to Protect Fish’

There are many things the Standing Committee on Fisheries and Oceans could recommend to the Minister of Fisheries and Oceans Dominic LeBlanc to correct some of these issues.

Rephrase Section 35 to refer to explicitly refer to habitat destruction. Alter the act to account for cumulative effects. Commit far more funding to the DFO for monitoring and enforcement to help create a sense that someone’s paying attention; Skuce notes it’s also important to retrain staff to know what to look for and ask the right questions.

Establish a means for proponents of “low-risk” projects to report progress to the DFO. Create a public registry of authorizations, with the long-term goal of crafting appropriate regulations that respond to real-world events. Work with Indigenous nations under the terms of the the United Nations Declaration on the Rights of Indigenous Peoples.

Many seem optimistic the government will make the most of the opportunity to restore protections to pre-2012 levels and exceed them with “modern safeguards.”

Skuce also notes the minister’s father, Roméo LeBlanc, was responsible for implementing habitat protection in the first place in 1977 and that she hopes his son can “do the same thing but even better.”

“It’s such a no-brainer,” Skuce says. “You have to protect habitat to protect fish. The sooner they can do it the better as we’re seeing declining salmon stock and projects being permitted. We’d really like to see this happen sooner rather than later.”

Image: Freshwaters Limited

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.

Canada’s major ports handle more than 300 million tonnes of cargo every year. They’re how we import products like cars and TVs and how we export commodities like grain and oil. Yet many of us have likely never thought of how the country’s 18 Canada Port Authorities (CPAs) are run — until now.

The way that decisions are made at Canada’s ports are coming under increasing scrutiny from environmentalists, who take issue with ports operating as both a promoter and regulator of trade.

The boards of directors of Canada’s port authorities determine what terminals receive approval for construction, and thus what types of commodities end up leaving the harbour.

Take Port Metro Vancouver (officially known as the Vancouver Fraser Port Authority), for example. It’s the largest port authority by tonnage in the country: in 2015 it facilitated the exchange of 138 million tonnes of cargo.

In September 2012, Fraser Surrey Docks — one of 28 marine terminals located at Port Metro Vancouver — announced plans to export eight million tonnes of thermal coal mined in Montana and Wyoming to Asian markets every year.

Paula Williams co-founded the advocacy group Communities and Coal in May 2013 in response to potential health effects and climate impacts stemming from such exports.

While Port Metro Vancouver’s CEO has readily admitted the port authority has never encountered such considerable opposition to a proposal before, the terminal’s proposal is still slated to go ahead (there are multiple lawsuits filed against it over alleged lack of consultation).

“At times, I’ve felt powerless, even though I remained hopeful,” Williams says. “You really start to see the machine that you’re up against.”  

Port Users Nominate Board of Directors

That’s because seven of the 11 people who serve on the board of directors for Port Metro Vancouver are nominated by port users. In other words, the businesses that reap financial benefits from port-related transactions have a majority of the say in who gets recommended as a board member to the federal minister of transportation, who makes the final selection.

The other four spots are filled with selections by: 1) the 16 municipalities within Port Metro Vancouver’s jurisdiction; 2) the province of British Columbia; 3) the three prairie provinces; and 4) the federal transport minister (without recommendation from the port user group).

The selection process is spelled out by 1998’s Canada Marine Act, which established port authorities as federal not-for-profit corporations mandated with the three-pronged task of facilitating trade, consulting with communities and protecting the environment. Today, Canada Port Authorities serve as landlord, regulator and property developer.  

Fox Watching the Hen House

Kathryn Harrison, a political science professor at the University of British Columbia, expresses concern over the board nomination process, as there’s no requirement for the ports to seek representation from First Nations, environmental or public health groups.

“The nomination process really exemplifies for me the degree to which this port authority has been envisioned as an agency that pursues the interests of industry,” she says. “It has a coordinating role, so you’ve got to have all the industries represented. But think about it: now you have a board primarily made up of those industries overseeing regulation of themselves.”

Peter Hall, director and professor of urban studies at Simon Fraser University and expert on port institutions, says that while ports can introduce widespread consultation, it makes little difference if they don’t have “the right people” at the final decision-making point.

That said, Hall states that he doesn’t believe a locally appointed board should decide on what a port trades, as that should remain the responsibility of provincial and federal governments. But who’s represented at the table has to change, he says, as does the mandate that “all cargo is by definition good.”

“There is this presumption the [Canadian Port Authority] in your city or region should say yes to everything because it’s presumed to be in the interests of Canada,” he says. “In that sense, it’s more difficult for local interests of any type to say ‘no, we’d rather not have that.’”

Hall adds the port industry is made up of a series of oligopolies and the current board composition is “not at all good” at dealing with tough environmental and social questions. Rejigging the composition to allow for more regional municipal representation would help.

“In the long run, we shouldn’t worry so much about these very big, financially successful port authorities just being able to get as much business as they can,” he says.

“We should be worrying about their long-term social and environmental commitments because there is capacity to do that. I don’t think we’re in any danger of destroying the golden goose. I think we’re actually much more in danger of a crisis of political legitimacy.”  

Promoter or Regulator of Trade? Both.

Other port authorities have suffered from poor optics over the years: in 2011, the RCMP started investigations into an allegedly corrupt nomination process at Montreal’s port authority that involved the Prime Minister’s Office. Former Conservative cabinet minister Lisa Raitt came under fire in in 2009 for an expense scandal during her time as CEO of the Toronto Port Authority. Halifax’s port authority has faced criticism from a former port chairperson due to its loss of a major container customer. The list goes on.

While UBC’s Harrison agrees there’s an urgent need to reform the nomination process for the board of governors — which would require an Act of Parliament to amend the Canada Marine Act and the issuing of new letters patent to Canadian Port Authorities — she says port authorities also suffer from mixed mandates, in which they serve as both a promoter and regulator of trade. The goal of regulating business, she says, can come into conflict with the port’s reliance on income from projects to fund its operations.

Such a narrow focus on economic benefit, without fully considering environmental and social impacts, also concerns Andrew Gage, staff lawyer at West Coast Environmental Law.

“If you view coal as a normal and legal commodity, then you can’t understand how someone would limit its export,” he says via e-mail. “If you view coal as a product that, due to its central role in fossil fuel pollution and climate change, plays a crucial role in killing people and destroying property, then your answer may be different.”  

Bill C-43 Allowed Ports to Destroy Documents

Those tensions were exacerbated in 2014 with Bill C-43, the 475-page budget implementation omnibus bill that, among many other things, authorized the sale of federal land to port authorities. Such lands, now leasable to private industry, are no longer covered by the Canadian Environmental Assessment Act and Species at Risk Act. In the same section of the bill, port authorities were empowered to establish rules that would allow them to physically destroy documents.

Such an amendment carries extra weight given that the year prior, the Vancouver-based organization Voters Taking Action on Climate Change uncovered documents via an Access to Information request that showed an uncomfortably close relationship between Port Metro Vancouver and National Public Relations, the firm that also represents the Coal Alliance (which Fraser Surrey Docks is a member of).

Throw in the fact Port Metro Vancouver has been facing serious problems with organized crime — a Vancouver Sun investigation published in May 2015 revealed that over two dozen longshoremen are affiliated with the Hells Angels and associates — and Harrison suggests a serious overhaul is needed.

“If there are concerns being raised about organized crime operating in ports as a way to smuggle drugs, that’s not the time to be passing legislation authorizing the destruction of documents and reducing transparency,” she says.  

Lobbying Activity Flies Under the Radar

Topping it all off is that employees of Canada Port Authorities aren’t subject to the federal Lobbying Act, which means the public can’t find out which individuals or businesses are meeting with Port Metro Vancouver board directors. While Harrison doesn’t perceive any nefarious intent behind the omission, it’s yet another sign for her that the governance model hasn’t kept up with the changing times and expectations of transparency.

In 2010, the federal commissioner of lobbying issued an advisory opinion confirming that communication between shared governance organizations — a category that port authorities belong to — and “federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable activity.”

Robyn Crisanti, director of public affairs at Port Metro Vancouver, notes the port authority has met with a number of federal ministers since the beginning of the year and there’s a lot of interest in the port’s activities.

“We’re very aware of what our marching orders are and we follow them,” she says.  

Grappling With the Long-Term Questions

One of the key tasks of the Canada Port Authorities, Crisanti says, is to do long-term planning: “It’s this thing of looking quite far into the future and trying to assess where Canada’s going to go in terms of trade and trade deals and things of that nature.”

For projects such as the G3 Terminal Vancouver — which if approved will annually transport eight million tonnes of grain — this can be a fairly straightforward task. While the economics may vary, there’s no doubt the world will require grain for the foreseeable future.

But it’s a different story when it comes to exports like coal and petroleum products. Canada has signed international agreements, notably the G7 commitment to phase out all fossil fuels by 2100 and the Paris Agreement to limit global warming to two degrees Celsius, both of which could seriously impact future investments in terminals that export energy products.

According to Gage of West Coast Environmental Law, Port Metro Vancouver “can consider whether fossil fuel specific infrastructure being built on port lands may become ‘stranded assets’ as the world moves away from a fossil fuel economy, as well as any potential liabilities that may be associated with fossil fuel infrastructure.”

This is where it all circles back to the board nomination process and underlying mandate.

Williams of Communities and Coal suggests that it’s currently not beneficial for the port authority to reject a project such as the Fraser Surrey Docks expansion given its modus operandi to facilitate trade, especially given that a majority of governors are commissioned under the “user pay-user say” principle.

However, Williams suggests the experience that Port Metro Vancouver went through with the controversial Fraser Surrey Docks proposal was a good learning opportunity, something Crisanti confirms (the Canada Port Authorities hired external consultants to review the permitting process and launched a new process last July). But there’s much more to be done, Williams says.

“If any change is going to come about, it’s got to be federally mandated,” she concludes. “It has to come from above.”

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.

A new report released Wednesday chronicles the changes made to Canada’s environmental laws under the federal Conservatives since they formed government in 2011.

The report, released by West Coast Environmental Law and the Quebec Environmental Law Centre, highlights “the repeal or amendment of most of Canada’s foundational environmental laws since 2011” and suggests many of the changes were a “gift to industry.”

“The record suggests that industry lobbied hard for removing environmental protections that it believed were impeding business,” the report states.

Major changes include the weakening of the Navigable Waters Protection Act, which removed 99 per cent of Canada’s lakes and rivers from protection, as well as changes to the Fisheries Act and the Species at Risk Act.

Weakening of the Canadian Environmental Assessment Act means approximately 90 per cent of major industry projects that would have undergone a federal review no longer will, according to the report.

Karine Peloffy, director general of the Quebec Environmental Law Centre, said Canada’s environmental legislation is intrinsically tied into the fabric of the country’s democracy.

“Our waters, species, and our very democracy have been put at risk by changes made to our environmental laws since 2011,” Peloffy said.

“When these legal changes were first brought in, we could only speculate about the impacts they would have on Canadians and the environment. Unfortunately, our analysis indicates that our fears have been borne out on the ground.”

Summary of environmental law changes from Canada's Track Record on Environmental Laws 2011-2015.

The majority of the legal changes were pushed through via omnibus budget legislation, something the current Conservative government has employed more than any previous government.

The report refers to omnibus budget bill C-38 (voting record here) and C-45 (voting record here) as “two critical blows” to environmental law “in order to streamline approval processes for risky or controversial industrial activities.”

“Basically all of the main changes that were made to federal environmental laws in those two omnibus budget bills, C-38 and C-45, were made at the request of industry,” West Coast Environmental Law Association staff counsel Anna Johnston, author of the report, told DeSmog Canada.

“We have the evidence to show that.”

The report is accompanied by a comparison of federal party platforms as they relate to environmental law (see below).

Platform promises put forward by the NDP, the Green Party and the Liberal Party reflect the public’s concern about the way environmental laws have been altered in recent years.

Johnston said the result of weaker environmental laws is that the public is pushed out of the democratic process.

“I think there’s a lot in the three platforms about that — about including Aboriginal peoples, the public and other stakeholders groups — not just industry — in developing and ensuring the implementation of environmental laws.”

Changes made to the Canadian Environmental Assessment Act limit public participation to “interested parties” — those who can demonstrate they are “directly affected” by a project or have relevant expertise that relates to the project.

As a result of this law, hundreds of British Columbians were barred from participating in the review process for the expansion of the Kinder Morgan Trans Mountain pipeline, leading to a loss of public confidence in the process.

Johnston said that loss of confidence in process has led to significant social unrest in Canada.

“If you have a process that is a sham process the public is going to feel ripped off and eventually they are going to find a way to have their voices heard,” she said. “Which is why we see people getting arrested on Burnaby Mountain, forming protests up in Fort St. John against Site C, and the formation of Idle No More.”

Johnston said stronger environmental laws that carve out a space for public participation, on the other hand, help alleviate this kind of social distress.

“With meaningful participation, even if people don’t agree with the end results, they feel like they’ve had their concerns heard.” 

“I think that tends to reduce the amount of civil disobedience and the amount of proceedings brought to the courts. And I think it results in better assessments, because you have more information and evidence and testing of evidence,” Johnston said.  

Party platform comparisons from West Coast Environmental Law and the Quebec Environmental Law Centre can be seen below. Click on images for full report:

Image: Chris Yakimov via Flickr

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.