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).