Environmental justice in Canada: A labour union call to action, and evidence from the UN Special Rapporteur

  “We will not rest, we will not stop: Building for better in a post-pandemic recovery” appeared in the Labour Day issue of Our Times magazine, written by Yolanda McClean and Christopher Wilson, executive officers of the Coalition of Black Trade Unionists (CBTU). Set in the context of the pandemic and the Black Lives Matter movement, the article states: “The calls to intensify the struggle against Canada’s police violence, economic apartheid and environmental racism are resounding.  …Anti-Indigenous, anti-Black and systemic racism extend beyond our political structures to our education and healthcare systems, to our corporations, workplaces, communities and, yes, to our labour movement.  (On this point, the authors refer to “Dear White Sisters & Brothers,” an Open Letter by unionist Carol Wall which appeared in the Summer 2020 issue of Our Times).

Wilson and McClean call upon the labour movement, stating: “A labour vision for a post-pandemic recovery must confront structural racial inequalities and advocate for the inclusion of BIPOC communities — economically, politically and socially.”   As positive examples, the article cites the Ontario Federation of Labour, which joined with the CBTU in a joint statement in July, stating: “As allies, we must act now and support the call to defund the police”. Wilson and McClean also highlight the CBTU’s “Green Is Not White” Environmental Racism research project, and its associated webinar “What Can Unions Do to Stop Environmental Racism?” , produced by the CBTU, the Asian Canadian Labour Alliance, and York University’s Adapting Canadian Work and Workplaces to Respond to Climate Change (ACW).   

UN Special Rapporteur reviews toxic chemicals in Canada and concludes: Environmental injustice persists in Canada

The UN Special Rapporteur on Human Rights and Toxics, Mr. Baskut Tuncak, officially visited Canada in May/June 2019, and presented his resulting Report to the United Nations Human Rights Council in early September 2020. The report states clearly that “Environmental injustice persists in Canada. A significant proportion of the population in Canada experience racial discrimination, with Indigenous, and racialized people, the most widely considered to experience discriminatory treatment.” The report focused on the extractive industries (defined as “mining of metals and oil sands”) in Canada and abroad – noting that over 50% of the world’s multinational mining companies are based in Canada. The report also discusses oil and gas pipelines, and chemical industries (including pesticides in agriculture). After documenting many specific examples, the Rapporteur concludes with recommendations for legislative and regulatory changes.

Excerpted highlights from the Report of the UN Special Rapporteur on Human Rights and Toxics :

“….Contamination from extractive industries, including the massive tailing ponds in Alberta, and the possibility of seeping into local water supplies, is of concern.

… despite compliance with the Fisheries Act, 76% of metal mines have confirmed effects on fish, fish habitat or both. Among these mines, 92% confirmed at least one effect of a magnitude that may be indicative of a higher risk to the environment.

….The health risks posed to Indigenous peoples by the multibillion-dollar oil sands industry are another example of concerns. Fort McMurray, Fort MacKay and Fort Chipewyan (Fort Chip) paint a disturbing picture of health impacts of the oil sands (i.e. tar sands) that were not properly investigated for years, despite increasing evidence of health impacts on local communities.

 … the situation of the Aamjiwnaang First Nation in Sarnia is profoundly unsettling. Deeply connected with their land, residents on the reservation invaded by industry as far back as the 1940s are now surrounded on three sides by over 60 industrial facilities that create the physiological and mental stress among community members …It is one of the most polluted places in Canada, dubbed “chemical valley.” ….   

…Workers are unquestionably vulnerable regarding their unique and elevated risks to chemical exposures. In Canada, occupational diseases and disabilities due to such exposures pose a major challenge to fulfilment of workers’ rights. Recent estimates show over 2.9 million workers are exposed to carcinogens and other hazardous substances at work, which is a gross underestimation.. ”  

NEB rules that Trans Mountain pipeline is in public interest, despite marine dangers and ignoring climate impacts

NEB reconsideration reportIn headline news on February 22,  Canada’s National Energy Board released the Report of its Reconsideration process (here in French), and for the second time, approved construction of the Trans Mountain Pipeline.  The NEB states: “…Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern resident killer whale and on Indigenous cultural use associated with the Southern resident killer whale. The NEB also found that greenhouse gas emissions from Project-related marine vessels would likely be significant. While a credible worst-case spill from the Project or a Project-related marine vessel is not likely, if it were to occur the environmental effects would be significant. While these effects weighed heavily in the NEB’s consideration of Project-related marine shipping, the NEB recommends that the Government of Canada find that they can be justified in the circumstances, in light of the considerable benefits of the Project and measures to minimize the effects.”

The decision was expected, and reaction was immediate:  From The Energy MixNEB Sidesteps ‘Significant’ Impacts, Recommends Trans Mountain Pipeline Approval”  , which summarizes reaction;  from the National Observer in  “For a second time, NEB recommends approval of Trans Mountain pipeline expansion” (Feb. 22)  and  “NEB ruling sparks new vows to stop the Trans Mountain pipeline”.  An Opinion piece by Andrew Nikoforuk in The Tyee  is titled, “NEB ‘Reconsideration Report’ a New Low for Failing Agency” and from the Council of Canadians, “The fight to #StopTMX Continues as feds approve their own pipeline” .  From British Columbia, where the government has appeared as an intervenor against the pipeline , the Sierra Club reaction is here ; the Dogwood Institute pledged opposition (including a rally against the decision in Vancouver)  and pledged to  make the Trans Mountain project a major part of the federal election scheduled for Fall 2019;  and West Coast Environmental Law press release   also pledged continued opposition.  Albertans see it differently, with Premier Rachel Notley releasing a statement which sees the decision as progress, but not enough to be a victory, and states: “We believe these recommendations and conditions are sound, achievable, and will improve marine safety for all shipping, not just for the one additional tanker a day that results from Trans-Mountain.” It is important to note that not all Albertans are pro-pipeline: Climate Justice Edmonton is protesting with a  “People on the Path” installation along the route, and Extinction Rebellion Edmonton  actively protests fossil fuel development.

Meaningful Indigenous consultation still needed :  The NEB Reconsideration process was triggered by an August 2018 decision of the Federal Court of Appeal, which ordered the NEB to re-examine especially the potential impacts of marine shipping on marine life, and the potential damages of an oil spill. The Reconsideration report has resulted in 16 new recommendations on those issues, along with the existing 156 conditions.   Although the final decision on the project rests with Cabinet, the issue of meaningful Indigenous consultation is still outstanding from the order of the Court of Appeal.  According to the CBC, “Ottawa has met already with three-quarters of Indigenous communities during Trans Mountain consultation reboot” as of Feb. 20, but also according to the CBC, the Union of B.C. Indian Chiefs says “We still say no to the project. tiny house warriorsEven if one nation, one community says no, that project is not happening”  . And the Tiny House Warriors  continue to occupy buildings along the pipeline path, to assert their authority over the land.

Canada ignores GHG impacts while Australia rules against a coal mine on GHG grounds….  A motion was brought by the environmental group Stand.earth, demanding that the NEB reconsideration of Trans Mountain include consideration of its upstream and downstream greenhouse gas emissions, as had been done in the Energy East consultation. Stand.earth stated: “The board cannot possibly fulfill its mandate of determining whether the project is in the public interest without considering whether the project is reconcilable with Canada’s international obligations to substantially reduce GHG emissions.” An article in the National Observer,   “IPCC authors urge NEB to consider climate impacts of Trans Mountain pipeline expansion” summarizes the situation and quotes Tzeporah Berman, international program director at Stand.earth, as well as Marc Jaccard and Kirsten Zickfeld, two professors from Simon Fraser University.  On February 19, the National Energy Board ruled on the Stand.earth motion, refusing to expand the scope of their reconsideration. Council of Canadians reacted with  “NEB climate denial another Trudeau broken promise”  .

It is doubly disappointing that Canada’s National Energy Board declined to include climate change impacts in its assessment, in the same month that the Land & Environment Court of New South Wales, Australia upheld the government’s previous denial of a permit for an open cut coal mine.   According to a report in The Guardian,     the decision explicitly cited the project’s potential impact on climate change, writing that an open-cut coalmine in the Gloucester Valley “would be in the wrong place at the wrong time.… Wrong time because the GHG [greenhouse gas] emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.”  The decision was also covered in: “Court rules out Hunter Valley coal mine on climate change grounds” (Feb. 8) in the Sydney Morning Herald, and from the  Law Blog of Columbia University: “Big Climate Win Down Under: Australian Court Blocks Coal Mine Citing Negative Impacts of Greenhouse Gas Emissions”.

Federal Court of Appeal stops Trans Mountain pipeline in its tracks

killer whales rainforestAn August 30 decision by the Federal Court of Appeal  has quashed the approval of the Trans Mountain oil pipeline expansion, directing that the the consultation with First Nations be re-done before the approval can again be considered.  The Court’s decision was based on two grounds: 1). Failure to adequately consult with First Nations –  characterizing the interaction as more “note-taking” than consultation – and 2) the National Energy Board  did not consider  the environmental impacts of  oil tanker traffic, especially its effect on the Southern Resident Orca Whales .  The Court stated:  “The unjustified exclusion of project-related marine shipping from the definition of the project rendered the board’s report impermissibly flawed”.  The National Observer has summarized the decision thoroughly  here , and maintains an ongoing series on “Kinder Morgan” here .  CBC News produced several stories, including a broad overview, including reactions, in “After Federal Court quashes Trans Mountain, Rachel Notley pulls out of national climate plan” .  A straightforward, briefer summary appeared in the Calgary Herald, “Five things to know about today’s Trans Mountain Pipeline Court Ruling” .

Reaction from environmentalists and First Nations is understandably overjoyed. EcoJustice, one of the main legal players in this consolidated case issued a press release  jointly  with the Raincoast Conservation Foundation and  Living Oceans Society, emphasizing the conservation aspects of the decision. It states: “The past six years have been a hard-fought battle against a project that has come to symbolize some of the defining issues Canadians face at this moment in time: Navigating the ongoing process of reconciliation, mitigating climate change, and protecting the land and water for future generations.”   Climate Action Network states that “This decision from the Federal Court of Appeal affirms the primacy of Indigenous rights and community consent. “  The David Suzuki Foundation press release touches on both aspects of the decision, saying “What is clear is that today’s decision sets a new high-water mark in terms of what it means to achieve true reconciliation, with Indigenous Peoples and nature.”  From The Narwhal,  “The death of Trans Mountain pipeline signals future of Indigenous rights: Chiefs” is a good compilation of First Nations response, to be read along with the Vancouver Sun‘s “B.C. First Nations Divided on Kinder Morgan Ruling”.

Another environmentalist reaction: “‘This pipeline is dead’: Stand.earth applauds federal court decision on Trans Mountain Pipeline”  which states: “Today’s victory is a vindication for everyone who worked to stop the Trans Mountain pipeline and tanker project — the hundreds of Water Protectors who were arrested in acts of peaceful civil disobedience, the tens of thousands of climate activists who marched against this pipeline, and the millions of Canadians who used their votes to elect candidates committed to creating a better future for Canada and the world.”

What does this mean for Canadian climate policy?  Professor David Tindall of University of British Columbia wrote an Opinion piece which appeared  in The Conversation on August 30, “Trans Mountain ruling: Victory for environmentalists, but a setback for action on climate change”.  He states: “While environmentalists can claim a victory in delaying the construction of a pipeline that would ship a further 500,000 barrels of oil each day to the Pacific Coast, the court ruling also threatens Canada’s plan to deal adequately with its greenhouse gas emissions. ”   A fuller discussion of this dilemma appears in “Trans Mountain pipeline ruling shakes central pillar of Trudeau agenda” (Aug. 31)  in the National Observer, and features in the many arguments for “Why Ottawa should step away from the Trans Mountain pipeline” , in Policy Options in August.  (A follow-up to an August 29 Open Letter to Prime Minister Trudeau on the topic, from 189 Canadian academics).  Finally, “The Global Rightward Shift on Climate Change”  in The Atlantic    (Aug. 28) examines Trudeau’s contradictory policies even before the Court decision,  in light of the recent ouster of Australia’s Prime Minister, partly over energy policies.

The threat to federal climate change policy comes because Alberta’s Premier Rachel Notley, in reaction to the Court’s decision,  pulled the province out of the Pan Canadian Framework on Clean Growth and Climate Change, blaming the federal government for “the mess we find ourselves in”.  The Premier’s press release issues an ultimatum, stating: “…Alberta, and indeed Canada, can’t transition to a lower carbon economy, …if we can’t provide the jobs and prosperity that comes from getting fair value for our resources….So the time for Canadian niceties is over… First, the federal government must immediately launch an appeal to the Supreme Court of Canada. Even more importantly, Ottawa must immediately recall an emergency session of Parliament to assert its authority and fix the NEB process as it relates to this project to make it clear that marine matters have been and will be dealt in a different forum.  Then Ottawa needs to roll up its sleeves and continue its work to protect our coast and improve consultation and accommodation relating to Indigenous peoples in the way they deserve.”

The political context is behind Notley’s response is  reported in “‘Notley’s in a lot of trouble’: Massive political fallout from Trans Mountain court decision” in the Calgary Herald and in the Edmonton Journal (Aug. 31) :  “’It is a crisis’: Alberta premier withdraws support for federal climate plan after Trans Mountain approval quashed” . Other Western politicians are quoted in  “ ‘A hideously expensive white elephant’: Essential quotes on the quashing of the Trans Mountain pipeline approval”  in the Calgary HeraldReaction from British Columbia’s  Premier  was brief, and focused on First Nations rights;  the mayors of Burnaby and Vancouver B.C.  were more enthusiastic (having been part of the applicant group of the case) .

What’s Next?  The Prime Minister reiterated federal resolve to build the pipeline in an interview on August 31, after the decision.  Construction has been stopped indefinitely, but a CBC analysis cautions, “Don’t dig Trans Mountain’s grave just yet” , and UBC Professor George Hoberg has predicted that it will take another 18 months at least for the issue to reach, and be decided, in the Supreme Court of Canada.  And in the meantime, in Canada, the September 8 RISE Global Day of Climate Action will be a day of celebration .

 

First Nations communities trading dirty diesel for renewable energy

First Nations’ commitment to renewable energy is described in Growing Indigenous Power: A Review of Indigenous Involvement and Resources to further Renewable Energy Development across Canada  released in February 2018 by  TREC Renewable Energy Co-operative. The report highlights examples of renewable energy projects, describes the potential benefits for  communities,  and outlines supportive policies and programs in each province. In the section on workforce issues, the report states:  “Whether a community is partnering with a developer and/or hiring a construction firm for their own project, it is important to insist, in writing, on a certain number of employment positions. After working with a developer on a wind project, Millbrook and Eskasoni First Nations (Nova Scotia) developed a database of skilled community members and had them join the union, to address employment issues.” The report contains a unique bibliography of articles and reports from lesser-known Indigenous and local sources.

The National Observer publishes frequent updates on the issue of First Nations and renewable energy  in British Columbia, which they have compiled into a Special Report titled First Nations Forward. Highlights from the series include “First Nations powering up B.C.” (Dec. 2017), and most recently,  “In brighter news, a clean energy success story:   Skidegate on the way to becoming a “city of the future”   (April 9). Also in British Columbia, the Upper Nicola Band  in the southern Interior will vote in April on a proposal to build a solar farm project  which, if approved, will be 15 times larger than the current largest solar farm in British Columbia ( a converted mine site at Kimberley ) .  CBC profiled the proposed new project in March. DeSmog Canada also profiled the Upper Nicola Project, and in November 2017 published “This B.C. First Nation is harnessing small-scale hydro to get off diesel.”

How green energy is changing one Alberta First Nation”  in the Toronto Star (April 10)  profiles a solar project at Louis Bull First Nation, south of Edmonton. It  was initiated under the  Alberta Indigenous Solar Program , one of several provincial grant programs to encourage renewable energy and energy efficiency amongst First Nations.  On  April 5, Alberta’s Renewable Electricity Program was announced – a  3-phase program which the government claims will attract approximately $10 billion in new private investment.  By 2030, it is also expected to create about 7,000 jobs in a wide range of fields, including construction, electrical and mechanical engineering, project management, as well as jobs for IT specialists, field technicians, electricians and mechanics. Phase 2 will include a competition for renewable energy projects  which are at least 25% owned by First Nations.

On March 22, the Ontario government announced :  “The federal and Ontario governments are partnering with 22 First Nations to provide funding for Wataynikaneyap Power to connect 16 remote First Nations communities in Northern Ontario to the provincial power grid…..When complete in 2023, the Wataynikaneyap Power Grid Connection Project will be the largest Indigenous-led and Indigenous-owned infrastructure project in Ontario history. It will mean thousands of people will no longer have to rely on dirty diesel fuel to meet their energy needs.”  The Wataynikaneyap Power website offers a series of press releases that chronicle the years-long development of this initiative, in partnership with FortisOntario . The most recent press release on March 22 states that the goal is to establish “a viable transmission business to be eventually owned and operated 100% by First Nations. In addition to the significant savings associated with the avoided cost of diesel generation, the Project is estimated to create 769 jobs during construction and nearly $900 million in socio-economic value.  These include lower greenhouse gas emissions (more than 6.6 million tonnes of CO2 equivalent GHG emissions are estimated to be avoided), as well as improved health of community members, and ongoing benefits from increased economic growth.”  Also of interest, a 2017 press release from FortisOntario : “Over $2 Million Announced For Wataynikaneyap Transmission Project First Nations Training Program .”

 

Labour activists raising environmental justice issues in Canada’s climate change policy

ourtimes cover-Chris JawaraThe featured article in the Winter 2018 issue of Our Times is  “A Green Economy for All” , which describes the action-research project Environmental Racism: The Impact of Climate Change on Racialized Canadian Communities: An Environmental Justice Perspective.   The ultimate goal: to equip Black trade unionists and racialized activists in Canada with the tools they need to influence the public policy debate over climate change, to ensure that the new green economy does not look the same as the old white economy.   With important inspiration from the Idle No More movement and the Indigenous experience in Canada, the project began with research into what has already been written about environmental racism in Canada, along with  a participatory social media campaign using the Twitter hashtag #EnvRacismCBTUACW,  to solicit more information about lived experience.  The project has now reached its second phase, designing and facilitating workshops to develop activism around the issue.  The first of these workshops  was presented to the Elementary Teachers of Toronto (ETT) in December 2017.  Facilitation questions, case studies and workshop information will be made publicly available, with the goal of engaging other social and political activists, as well as the labour movement.

The Environmental Racism: The Impact of Climate Change on Racialized Canadian Communities  project was launched in 2017 by the Adapting Canadian Work and Workplaces to Respond to Climate Change (ACW) project at York University,  in collaboration with Coalition of Black Trade Unionists , and is being led by Chris Wilson, Ontario Regional Coordinator for the Public Service Alliance of Canada (PSAC) and  PSAC Ontario union negotiator Jawara Gairey.

“A Green Economy for All”  also mentions the work of the Toronto Environmental Alliance , which produced a map of toxic concentrations in the city in 2005, and the forthcoming book  There’s Something in the Water: Environmental Racism in Indigenous and Black Communities,  which highlights the grassroots resistance against environmental racism in Nova Scotia, and is written by Ingrid Waldron, an associate professor at Dalhousie University  and  Director of the Environmental Noxiousness, Racial Inequities & Community Health Project (The ENRICH Project).

 

National Energy Board is a casualty of Canada’s new legislation for environmental assessment

On February 8, following 14 months of consultation and review, the Minister of Environment and Climate Change introduced the mammoth Bill C-69 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts  . The government press release from Environment and Climate Change Canada highlights these talking points about the proposed legislation-  It will:  Restore public trust through increased public participation; Included transparent, science-based decisions; Achieve more comprehensive impact assessments by expanding the types of impacts studied to include health, social and economic impacts, as well as impacts on Indigenous Peoples, over the long-term. Also, it promises  “One project, one review” – through a new Impact Assessment Agency, (replacing the Canadian Environmental Assessment Agency) which will be the lead agency, working with a new Canadian Energy Regulator (replacing the National Energy Board), as well as the Canadian Nuclear Safety Commission and Offshore Boards.  Further, it will make decisions timely; Revise the project list; Protect water, fish and navigation ; and Increase funding.  The detailed government  explanation of the changes  is here ; other summaries appeared in the National Observer in “ McKenna unveils massive plan to overhaul Harper environmental regime”  ; “Ottawa to scrap National Energy Board, overhaul environmental assessment process for major projects”   in CBC News; and in the reaction by The Council of Canadians, which expresses reservations about the protection of navigable waters, and these “Quick Observations”:
“1- the current industry-friendly Calgary-based National Energy Board would be replaced by a proposed Calgary-based (and likely industry-friendly) Canadian Energy Regulator
2- it includes the ‘one project, one review’ principle as demanded by industry
3- assessments of major projects must be completed within two years, a ‘predictable timeline’ also demanded by industry
4- the bill notes the ‘traditional knowledge of the Indigenous Peoples of Canada’ but does not include the words ‘free, prior and informed consent’, a key principle of the United Nations Declaration on the Rights of Indigenous Peoples
5- McKenna said that no current projects (including the Kinder Morgan pipeline which crosses more than 1,300 water courses) would be sent back to ‘the starting line’
6- the government is seeking to implement the law by mid-2019.”

An overview of other reaction appears in   “New Federal Environmental Assessment Law Earns Praise from Climate Hawks, Cautious Acceptance from Fossils” from the Energy Mix.  Reaction from West Coast Environmental Law (WCEL) is here ; and from  Environmental Defence here .  The Canadian Environmental Law Association sees some forward progress but warns that “the Impact Assessment Act is marred by a number of serious flaws that must be fixed in the coming months.”    Reaction from the Pembina Institute says “Today’s legislation improves the federal assessment process by centralizing authority for impact assessment under a single agency; providing a broader set of criteria for assessing projects including impacts to social and health outcomes; and removing the limitations on public participation that were put in place in 2012…. Building on today’s legislation, we would like to see progress towards the establishment of an independent Canadian Energy Information Agency to ensure that project reviews include Paris Agreement-compliant supply and demand scenarios for coal, oil and gas.”

Companion legislation, also the product of the lengthy Environmental Regulation Review, was introduced on February 6, Bill C-68 An Act to amend the Fisheries Act and other Acts in consequence  (Press release is here ; there is also a Backgrounder comparing the old and new legislation). Most importantly, Bill C-68 restores a stronger protection of fish and fish habitat – the HADD provision – to the definition used before the 2012 amendments by the Harper government. (HADD = the harmful alteration, disruption or destruction of fish habitat).  Reaction is generally very favourable:   The David Suzuki Foundation says : “The most important changes we were looking for are part of these amendments” and West Coast Environmental Law says that the proposed legislation   “meets the mark”.  Reaction is also favourable from the Ecology Action Centre in Halifax . And from the Alberta Environmental Law Centre, some background in “Back to what we once HADD: Fisheries Act Amendments are Introduced” .

no consentAnd finally, where does the new environmental assessment process leave Canada’s Indigenous people?  The new legislation includes the creation of an Indigenous Advisory Committee and requires that an expert on Indigenous rights be included on the board of  the new Canadian Energy Regulator body, according to a CBC report, “Indigenous rights question remains in Ottawa’s planned environmental assessment overhaul” . Minister McKenna is also quoted as saying the government will “try really hard” to conform to the principles of the UN Declaration on the Rights of Indigenous Peoples   – a statement that is not satisfactory to some Indigenous leaders.    See “Indigenous consultation and environmental assessments” (Feb. 7)  in Policy Options for a discussion of the issue of “free, prior and informed consent”.  On February 7, Private member’s Bill C-262, an Act to Harmonize Canada’s Laws with the United Nations Declaration on the Rights of Indigenous Peoples passed 2nd reading in the House of Commons.

First Nations, Renewable Energy, and the benefits of community-owned energy projects

“These are exciting times in British Columbia for those interested in building sustainable, just and climate-friendly energy systems.” So begins the October 12 featured commentary, “BC First Nations are poised to lead the renewable energy transition”, published by the Corporate Mapping Project, a research project led by the University of Victoria, Canadian Centre for Policy Alternatives (BC and Saskatchewan Offices) and Parkland Institute. The commentary summarizes the results of a survey conducted for the B.C. First Nations Clean Energy Working Group  by academics at the University of Victoria , published in April 2017 . The survey reveals that 98% of First Nations respondents were either interested in, or already participating in a renewable energy projects – 78 operational projects, 48 in the planning or construction phase, and 250 further projects under consideration in B.C. alone.  The responses reveal a growing interest in solar photovoltaic (PV), solar thermal, biomass and micro-hydro projects under development—compared to already-operational projects, 61% of which are run-of-river hydroelectricity. Survey respondents identified three primary barriers to their involvement in renewable energy projects: limited opportunities to sell power to the grid via BC Hydro – (mostly because of the proposed Site C hydro project), difficulties obtaining financing, and a lack of community readiness.

Although the discussion focuses specifically on B.C.’s  First Nations, the article holds up the model of community-level energy projects beyond First Nations : “Instead of proceeding with Site C, BC has an opportunity to produce what new power will be needed through a model of energy system development that takes advantage of emerging cost effective technologies and public ownership at a community scale. Doing so would enable an energy system that can be scaled up incrementally as demand projections increase. It would also ensure the benefits energy projects are channelled to communities impacted by their development, and help respond to past injustices of energy development in our province….Choosing this path would result in a more distributed energy system, more resilient and empowered communities, a more diverse economy and a more just path towards climate change mitigation.”

CBC reported on another survey of First Nations – this one at a national level –  in “Indigenous communities embracing clean energy, creating thousands of jobs” ( October 11). The article focuses on First Nations renewable energy projects on a commercial scale, stating: “nearly one fifth of the country’s power is provided by facilities fully or partly owned and run by Indigenous communities”. The article links to case studies and numerous previous articles on the topic, but focuses on the job creation impacts of clean energy: “15,300 direct jobs for Indigenous workers who have earned $842 million in employment income in the last eight years.”

The CBC article summarizes a survey conducted by Lumos Energy , a consultancy which specializes in energy solutions, especially renewable energy, “for First Nations, Métis and Inuit leaders and communities”. Lumos Energy  leads the Indigenous Clean Energy Network ; its principal, Chris Henderson, has written the book Aboriginal Power: Clean Energy and the Future of Canada’s First Peoples (2013).

The new British Columbia government tackles climate change policy and controversies: Site C, Kinder Morgan, and Carbon Tax neutrality

As the smoke from over 100  forest fires enveloped British Columbia during the summer of 2017, a new brand of climate change and environmental policy emerged after June 29, when the New Democratic Party (NDP) government assumed power , thanks to a Confidence and Supply Agreement with the Green Party Caucus.  Premier John Horgan appointed Vancouver-area MLA George Heyman, a former executive director of Sierra Club B.C. and president of the B.C. Government Employees and Service Employees’ Union, as Minister of Environment and Climate Change Strategy, with a mandate letter which directed Heyman to, among other priorities, re-establish a Climate Leadership team,  set a new 2030 GHG reduction target, expand and increase the existing carbon tax, and “employ every tool available to defend B.C.’s interests in the face of the expansion of the Kinder Morgan pipeline.”  A separate mandate letter to the Ministry of Energy, Mines and Petroleum Resources, directed the Minister to create a roadmap for the province’s energy future, to consider all Liquified Natural Gas proposals in light of the impact on climate change goals, to freeze hydro rates and to  “immediately refer the Site C dam construction project to the B.C. Utilities Commission on the question of economic viability and consequences to British Columbians in the context of the current supply and demand conditions prevailing in the B.C. market.” In addition, the government “will be fully adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the Calls to Action of the Truth and Reconciliation Commission.”

Some notes on each of these priorities:

Re the B.C. Climate Leadership Plan The recommendations of the B.C. Climate Leadership Team were ignored by the Liberal government when delivered in 2016.  In mid-September 2017, the reasons for that became clear, as reported by the National Observer , DeSmog Canada, Rabble.ca and Energy Mix . According to the National Observer,  “provincial officials travelled to Calgary to hold five rounds of secret meetings over three months in the boardroom of the Canadian Association of Petroleum Producers (CAPP). Representatives from Alberta-based oil giants Encana and Canadian Natural Resources Ltd (CNRL) are shown on the list of participants meeting with B.C.’s ministry of natural gas development.”  In the article for DeSmog Canada, Shannon Daub and Zoe Yunker state that the Climate Leadership process was a stunning example of institutional corruption: “what can only now be characterized as a pretend consultation process was acted out publicly….  The whole charade also represents an abuse of the climate leadership team’s time and a mockery of B.C.’s claims to leadership during the Paris climate talks, not to mention a tremendous waste of public resources.”  The documents underlying the revelations were obtained under Freedom of Information requests by Corporate Mapping Project  of the Canadian Centre for Policy Alternatives, of which Shannon Daub is Associate Director.

Re the  Carbon Tax:  The Budget Update released on September 11 states: “The Province will act to reduce carbon emissions by increasing the carbon tax rate on April 1, 2018 by $5 per tonne of CO2 equivalent emissions, while increasing the climate action tax credit to support low and middle income families. The requirement for the carbon tax to be revenue-neutral is eliminated so carbon tax revenues can support families and fund green initiatives that help us address our climate action commitments.” For context, see “B.C. overturns carbon tax revenue-neutrality”  (Sept. 22) by the Pacific Institute for Climate Solutions;  for reaction, see the Canadian Centre for Policy Alternatives-B.C. or the Pembina Institute .

Re the Kinder Morgan Trans Mountain Pipeline:  On October 2, 2017, the Federal Court of Appeal  is scheduled to start the longest hearing in its history, for the consolidated challenges to the National Energy Board and Federal Cabinet approval of Kinder Morgan’s Trans Mountain Project.  The government has applied for intervenor status, and in August  hired environmental lawyer and former B.C. Supreme Court Justice  Thomas Berger as an external legal advisor on the matter.  West Coast Environmental Law blogged, “See you in court, Kinder Morgan” , which provides a thorough summary of the 17 cases against the TransMountain expansion; WCEL has also published a Legal Toolbox to Defend BC from Kinder Morgan, which goes into the legal arguments in more detail.  The NEB website provides all official regulatory documents. Ecojustice is also involved in the complex court challenge.

Re the Site C Dam:  In early August, the B.C. government announced a review of the Site C project by the B.C. Utilities Commission.  The Preliminary Inquiry Report was released on September 20,  calling for more information before passing judgement on whether BC Hydro should complete the project. The Inquiry Panel also finds “a reasonable estimate of the cost to terminate the project and remediate the site” would be $1.1 billion, based on the figures provided by BC Hydro and Deloitte consultants. The Inquiry report is  summarized by  CBC . Next steps:  a series of round-the-province hearings and final recommendations to government to be released in a final report on November 1.

After years of protests about Site C, evidence against it seems to be piling up. A series of reports from the University of British Columbia Program on Water Governance, begun in 2016, have addressed the range of issues involved in the controversial project : First Nations issues; environmental impacts; regulatory process; greenhouse gas emissions; and economics.  In April, an overview summary of these reports appeared  in Policy Options as  “Site C: It’s not too late to hit Pause”,  stating that Site C is “neither the greenest nor the cheapest option, and makes a mockery of Indigenous Rights in the process.”   On the issue of Indigenous Rights, the UN Committee on the Elimination of Racial Discrimination called for a halt on construction in August, pending a full review of how Site C will affects Indigenous land.

If Site C is a good project, it’s time for Trudeau to trot out the evidence” in  iPolitics (Sept. 17), calls Site C “an acid test for Trudeau’s promise of evidence-based policy” and an environmental and economic disaster in the making.  The iPolitics article summarizes the findings of a submission to the BC Utilities Commission review by Robert McCullough, who concluded that BC Hydro electricity demand forecasts overestimate demand by 30%, that its cost overruns on the project will likely hit $1.7 to $4.3 billion, and that wind and geothermal are cleaner alternatives to the project. McCullough’s conclusions were partly based on his review of the technical report by Deloitte LLP, commissioned by the Inquiry.

 

ILO report about Indigenous People’s role in the green economy; Canadian First Nations and clean energy

An April report released by the ILO, Indigenous peoples and climate change: From victims to change agents through Decent Work rejects the characterization of Indigenous people as “victims”.  The report states that indigenous peoples, numbering  over 370 million worldwide , “are at the vanguard of running modern green economies”, and “if they have access to decent work opportunities; if they are empowered to participate in decision making; if their rights are protected; and if policies address their social, economic and environmental vulnerabilities while honing their positive potential as partners, workers, entrepreneurs and innovators, indigenous peoples will become empowered agents of change who can play a vital role in spurring green growth and combating climate change.”

As if to prove the points of the ILO report, a press release on April 24 announced the results of a survey conducted by the University of Victoria Environmental Studies for   B.C. First Nations Clean Energy Working Group and  Clean Energy B.C.First Nations and Renewable Energy Development in British Columbia reports the results of a survey conducted from October 2016 to February 2017, showing that 47% of the 105 First Nations respondents are involved in the clean energy industry in some way – from ownership to receiving royalties. There are currently 78 operating projects, (in which they have invested over $35million), plus 49 projects under development and an additional 249 projects that they want to build, ranging from wind farms to solar installations to run of river power generation. 61% of First Nation respondents said the biggest barrier for their projects is the lack of opportunity to sell power to B.C. Hydro, because the utility has stopped buying power from independent producers,  projecting a surplus of power from the controversial Site C dam.  (DeSmog Canada compiles the latest news and research about the Site C project here.)

First Nations across Canada are also active investors in green energy, according an article in the Toronto Star April 26, “Six Nations of Grand River lead the charge on green energy”   . The article mentions projects in Quebec and Manitoba, and highlights the Ontario Six Nations of the Grand River solar and wind projects as exemplary – most recently, the Oneida Business Park in Ohsweken, Southwestern Ontario, which was awarded Aboriginal Project of the year by the Ontario Sustainable Energy Association in summer 2016.

six nations development corporationSix Nations of the Grand River Development Corporation (SNGRDC) manages the Six Nations’ economic interests in 17 renewable energy projects and numerous economic development opportunities. It employs over 100 people.  SNGRDC’s current green energy portfolio is capable of producing over 900 MW of renewable energy through its direct or indirect involvement in 10 solar, 6 wind and one hydroelectric project(s). Consultation is currently underway about another investment in a solar project near the now-decommissioned Nanticoke coal-burning power plant – which will consist of  175,000 to 210,000 solar photovoltaic  panels on 4 parcels of land either owned or leased by Ontario Power Generation.   The Grand River Employment and Training (GREAT) administration is involved to promote employment of First Nations workers in the contruction phase.

In January 2016,  the Whitesand First Nation also received an OSEA award for their sustained efforts to launch a 3.64 MW combined heat and power biomass plant, which will provide electricity to three communities of the Far-north.

Case studies of Community and human rights impacts of Renewable energy companies, and a ranking of multinationals in Ag/Food, Apparel and Mining

renewable energy investor briefing coverAn April 2017 report from the London-based advocacy group,  Business and Human Rights Resource Centre asks,  “What adverse impacts can renewable energy projects have on communities around the world?”   Renewable Energy investor briefing: Managing risks & responsibilities for impacts on local communities  (April 2017) is directed at financial and investment professionals who are considering investment in renewable energy projects- in this report, comprised of wind and small-to-medium hydro, but excluding solar .  It starts from the premise that Just Transition principles are essential, then explains the international human rights responsibilities of companies.  The report also provides examples of the kinds of questions that should be asked in shareholder meetings and before investment decisions are made, and gives examples of best practice policies – for example, inclusion of community benefits agreements.  One of the main issues it discusses is the right to free, prior and informed consent of Indigenous peoples, which is an ongoing topic monitored by the BHRC.

The report provides case studies, including  six positive examples, including: the Ixtepec community-owned wind project in Mexico; the Jeffreys Bay Wind Farm in South Africa; and  a cluster of wind projects in Jämtland, Sweden, for which OECD guidelines are being used in negotiations between the company and affected Indigenous people.  The full suite of case studies is presented in a searchable database which allows searching by company name, issue, country, and more.  There are no Canadian projects included in the 2017 report, although a profile of Ontario Power Generation  is available as part of the Centre’s ongoing database  of human rights in the energy sector  .

In March 2017, the Centre also launched an updated and expanded  Corporate Human Rights Benchmark website , which ranked 98 of the world’s largest publicly traded companies, from the  Agriculture, Apparel, and Extractive industries. The Benchmark is intended to drive a “race to the top” and is directed at business, government, and “ to empower civil society, workers, communities, customers, and the media with better public information to reward, encourage, and promote human rights advances by companies and make well-informed choices about which companies to engage with.”  A 50 page summary report is here .  There are six thematic measurement categories, including “ Company Performance: Human Rights Practices”  which  includes rankings related to living wage, freedom of association and right to bargain collectively, health and safety, amongst others.

Tsilhqot’in Landmark Decision with Implications for Resource Developments in Canada

The decision by the Supreme Court of Canada to grant British Columbia’s Tsilhqot’in nation title over a portion of their ancestral lands marks the first time Aboriginal title has been formally recognized in Canada. Gowlings law firm calls it “one of the most significant Aboriginal law cases in Canadian history” and a blog at West Coast Environmental Law calls the decision “a watershed moment”.
Notably, the decision clarifies the test for whether an indigenous group has title over an area, including such criterion as occupation prior to the Crown assertion of sovereignty and continuous occupation since. In particular, the case established that “nomadic or semi-nomadic” land use, such as that of the Tsilhqot’in, does not preclude title.
It also offers some explanation about what legal rights and responsibilities title entails, such as decision-making power over how the land will be used, the right to derive economic benefits from the land and to use and manage it. Yet considerable uncertainty remains about resource extraction or other projects espoused by the government. The decision stops short of requiring consent, but recommends seeking consent from title-holders prior to project approval.
The West Coast Environmental Law blog offers an analysis of the text of the decision and how it may impact pipeline development in B.C. See the Supreme Court decision at: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do; subsequently, the B.C. government announced a letter of agreement with the Tsilhqot’in in a press release at: http://www.newsroom.gov.bc.ca/2014/09/tsilhqotin-bc-sign-historic-letter-of-understanding-set-the-stage-for-lasting-reconciliation.html.
See also: “Supreme Court of Canada grants Tsilhqot’in Aboriginal title claim” summary from Gowlings Law Firm available at: http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3399
and “Tsilhqot’in Nation v. British Columbia: Implications for the Enbridge Tankers and Pipelines Project” from West Coast Environmental Law is available at: http://wcel.org/resources/environmental-law-alert/tsilhqotin-nation-v-british-columbia-implications-enbridge-tankers.

Northern Gateway Headed to Court as NEB Approval Provokes Criticism of Review Process

On December 19th, the National Energy Board granted conditional approval to the controversial Enbridge Northern Gateway pipeline, citing 209 conditions.The federal NDP and Green parties criticized the decision, while some opponents of the pipeline allege the joint review panel itself has been “undemocratic” and has undermined the integrity of the environmental review process in general, echoing an August 2013 lawsuit in which NGO ForestEthics claimed NEB public participation rules were unconstitutional. A series of at least 10 lawsuits has been launched in response to the NEB approval, notably one by B.C. Nature and one by a coalition of NGOs including EcoJustice, ForestEthics, Living Oceans Society, and Rainforest Conservation Foundation. The environmental groups allege the Joint Review Panel (JRP) final report contains serious legal and scientific gaps, such as uncertainty regarding geohazards along the pipeline route and the behaviour of spilled bitumen in marine environments. They claim the JRP also failed to address legal obligations to the humpback whale and caribou populations whose habitats lie in the pipeline path, both of which are protected under the Species at Risk Act.

Three First Nations, Gitxaala, Git’gat, and Haisla, have launched lawsuits of their own calling for federal review of the NEB decision. They claim their unique constitutional rights regarding development on their lands were also neglected during the review process.

Read the press release from EcoJustice on their lawsuit at: http://www.ecojustice.ca/media-centre/press-releases/environmental-groups-launch-lawsuit-over-flawed-northern-gateway-report. CBC coverage of lawsuits from environmental groups is available at: http://www.cbc.ca/news/canada/british-columbia/northern-gateway-pipeline-report-draws-lawsuit-1.2501051; coverage of First Nations lawsuits is available at: http://www.cbc.ca/news/canada/british-columbia/gitga-at-northern-gateway-lawsuit-joins-9-other-challenges-1.2507155.

According to West Coast Environmental Law, Enbridge may be experiencing difficulty attracting investment to the project in light of persistent opposition. See: NEB’s Thumbs Up Ignores Wall of Opposition that will Stop Enbridge (Jan. 16) is at: http://wcel.org/resources/environmental-law-alert/neb%E2%80%99s-thumbs-ignores-wall-opposition-will-stop-enbridge.