Northern Gateway Supreme Court Decision, and Kinder Morgan Pipeline battles in British Columbia; NEB improvements promised

On January 13, the B.C. Supreme Court ruled that the B.C. government breached its duty to consult the Gitga’at and neighbouring First Nations on the Enbridge Northern Gateway pipeline. The decision is seen as a major victory for Coastal First Nations , effectively nullifying the federal government’s initial approval of Northern Gateway , and also providing a precedent protecting First Nations rights in the Trans Mountain pipeline hearings. “ First Nations win court challenge against B.C. over Enbridge pipeline”  includes a copy of the Court’s decision. The West Coast Environmental Law group provides a history of the Northern Gateway case, and its implications for the Kinder Morgan NEB review in Province Can’t Pass the Buck on Oil Pipelines: BC Supreme Court.

The B.C. government formally submitted its letter of opposition to the Kinder Morgan Trans Mountain Pipeline  to the National Energy Board on January 11 , citing the grounds of safety and the risks of an oil spill. Unifor has also consistently opposed the project, seeing it as a exporter of energy jobs, and a threat to its members in the fisheries industry. (Alberta submitted its letter of support on January 12 ).    Even U.S. Aboriginal tribes have filed complaints before the NEB regarding the threat of Kinder Morgan, according to a report in The Guardian . Read an overview of the arguments against KinderMorgan from EcoJustice  . The Tar Sands Reporting project of the National Observer, based in Vancouver, has compiled a series of articles documenting the NEB hearings and the many public protests.

The Kinder Morgan NEB hearings have developed as a symbol of the new Liberal government’s intention to live up to its campaign promises  to review the NEB process and restore transparency and evidence-based decision making in environmental assessments, according to DeSmog Blog.

The Report of the Commissioner of the Environment and Sustainable Development  was tabled in the House of Commons on January 26, and was strongly critical of the National Energy Board’s regulation of pipeline projects. (The CBC summary is here ) . In response, the government has promised additional climate tests and First Nations’ consultations for the Kinder Morgan Trans Mountain pipeline, Energy East pipeline, and Pacific NorthWest’s planned LNG export terminal in B.C., according to the Globe and Mail on January 25. (“Ottawa to mandate climate tests for proposed pipelines, LNG terminal ” )

 

Unifor joins First Nations and Environmental Groups in Court against the Northern Gateway Pipeline decision

Eighteen lawsuits were consolidated and heard in a Federal Court of Appeal in Vancouver, from October 1 to 8, as eight First Nations, four environmental groups and Unifor challenged the decision of the Federal Joint Review Panel on Enbridge’s Northern Gateway Pipeline. Lawyers representing Unifor argued that the Joint Review Panel erred by focusing on the economic benefits of oil sands development and refusing to consider greenhouse gas emissions produced by upstream development (see Unifor’s detailed Memorandum of Fact and Law here). West Coast Environmental Law provides a Legal Backgrounder with official documents, a day by day summary of proceedings and will cover the decision when it is announced in the coming months. “How Harper triggered a First Nations legal war over Northern Gateway” in the National Observer (Oct. 1) provides background.

Reaction to the Harper Government Northern Gateway Decision

Neither the Prime Minister nor any cabinet ministers were available for comments or questions about the expected cabinet approval, released at the last possible moment via a brief press release on June 17. “After carefully reviewing the report, the Government accepts the independent Panel’s recommendation to impose 209 conditions on Northern Gateway Pipelines’ proposal.” …” Moving forward, the proponent must demonstrate to the independent regulator, the NEB, how it will meet the 209 conditions. It will also have to apply for regulatory permits and authorizations from federal and provincial governments. In addition, consultations with Aboriginal communities are required under many of the 209 conditions that have been established and as part of the process for regulatory authorizations and permits.” See the press release at http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=2&nid=858469&crtr.tp1D=1 and the government’s summary statement of the 209 conditions is at http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=858489&crtr.tp1D=930 .

The province of British Columbia has conditions of its own, which Environment Minister Polak reiterated in the official B.C. reaction to the decision on June 17 at http://www.newsroom.gov.bc.ca/2014/06/northern-gateway-pipeline-more-work-needed-to-meet-bcs-five-conditions.html. Most notably, the First Nations of B.C. have condemned the decision: see the Coastal First Nations website at http://www.coastalfirstnations.ca/ , where Art Sterritt, Executive Director of the Coastal First Nations says: “The government’s announcement giving its approval to Enbridge is meaningless. ‘It’s an approval in name only. This project is dead. ’…… The project can’t proceed with these conditions. We’ve been clear there is no technology to clean up an oil spill and the dispersant that is used causes more damage than the oil itself.” (http://www.coastalfirstnations.ca/news-release/june-17-2014-215pm ).

Another press release from the Coastal First Nations, on June 16th, states: “With many First Nations gearing up for court battles to protect their territories from this risky proposal, representatives of Coastal First Nations, Dogwood Initiative, Unifor, West Coast Environmental Law, Douglas Channel Watch and One Cowichan promised to work together to defeat Northern Gateway, regardless of any approvals issued by the federal cabinet.”

The internet is alive with opposition campaigns: Within B.C., the Dogwood Initiative is calling for a referendum at Let B.C. Vote at http://www.letbcvote.ca/ , (includes a compilation of news reports). Stand Strong Christy, co-ordinated by ForestEthics Advocacy, at http://standstrongchristy.ca/ has an online petition urging B.C. Premier Christy Clark to hold firm to her earlier stated 5 conditions for Northern Gateway approvals in B.C.

Leadnow.ca and ForestEthics Advocacy host another petition at http://www.enbridge21.ca/ naming the Enbridge 21 (the 21 federal Conservative cabinet ministers from B.C.) and providing an online email form to contact them, and “hold them accountable” by pledging to vote for whoever opposes Enbridge in the 2015 election.

David Suzuki posted an open Letter and has an online petition to Stephen Harper , and the leaders of all federal parties at http://action2.davidsuzuki.org/no-enbridge-pipeline?utm_campaign=enbridgeEmail&utm_source=EM1&utm_medium=email&utm_content=link&mkt_tok=3RkMMJWWfF9wsRolu6XLZKXonjHpfsX66u8kXK%2B3lMI%2F0ER3fOvrPUfGjI4CSsFiI%2BSLDwEYGJlv6SgFS7jNMbZkz7gOXRE%3D .

The federal Green Party also has its own petition at http://www.greenparty.ca/media-release/2014-06-17/predictable-cabinet-decision-enbridge-project-launches-fight-stop-pipelines . Environmental Defense has an online email form to send a protest message to the political leaders at http://environmentaldefence.ca/stop-tar-sands-expansion?utm_source=Environmental+Defence+Campaign+Email+List&utm_campaign=06cf692bda-Lighten+Up+FINAL&utm_medium=email&utm_term=0_df56834cfa-06cf692bda-27545293.

For reaction from environmental groups, see EcoJustice at http://www.ecojustice.ca/media-centre/press-releases/federal-approval-doesnt-guarantee-enbridge-northern-gateway-will-be-built ; Pembina Institute at http://www.pembina.org/reacts-fed-decision-gateway, Greenpeace Canada at http://www.greenpeace.org/canada/en/Blog/harper-just-picked-a-fight-he-cant-win/blog/49666/ , Environmental Defence Canada at http://environmentaldefence.ca/articles/statement-environmental-defence%E2%80%99s-tim-gray-in-response-federal-cabinet%E2%80%99s-irresponsible-deci and Natural Resources Defence Council (U.S.) at http://switchboard.nrdc.org/blogs/eshope/canada_approves_northern_gatew.html .

House of Commons Standing Committee Applauds the Oil and Gas Industry

In the lead-up to the Northern Gateway decision, on June 11th the House of Commons Standing Committee on Natural Resources presented its 7th Report on the Cross-country Benefits of the Oil and Gas Industry. The report selectively reproduces the testimony of industry-affiliated witnesses, and quotes the Assistant Deputy Minister of Natural Resources Canada, who is reported to have said that “the socio-economic benefits from the oil and gas industry are universally positive.” Not only socio-economic benefits, but, according to the Standing Committee, “the development of the oil and gas industry generates various environmental benefits, including improved air quality, water quality, and reforestation. Many of these improvements are achieved through world-class innovation and clean technologies developed and supported by the industry”.

Dissenting reports from the Liberal and New Democratic members of the committee attempt to give voice to some of the less enthusiastic witnesses. See the report at http://www.parl.gc.ca/Content/HOC/Committee/412/RNNR/Reports/RP6644319/412_RNNR_Rpt07_PDF/412_RNNR_Rpt07-e.pdf (English version) or http://www.parl.gc.ca/Content/HOC/Committee/412/RNNR/Reports/RP6644319/412_RNNR_Rpt07_PDF/412_RNNR_Rpt07-f.pdf (French version). Briefs and evidence submitted are not available online, but the oral testimony and minutes of the committee meetings can be read at http://www.parl.gc.ca/committeebusiness/CommitteeMeetings.aspx?Cmte=RNNR&Language=E&Mode=1&Parl=41&Ses=2 (English) http://www.parl.gc.ca/committeebusiness/CommitteeMeetings.aspx?Cmte=RNNR&Mode=1&Parl=41&Ses=2&Language=F (French version).

Pipeline News: Kitimat, First Nations Reject Northern Gateway; the Government Downgrades Protection for Humpback Whales

The Enbridge Northern Gateway Pipeline has encountered new road blocks as communities voice renewed opposition to the project. In Kitimat, residents voted against the pipeline by 60% in a non-binding plebiscite on April 19th. Kitimat might stand to gain the most if the project proceeds, with a promise from Enbridge to bring 180 permanent jobs to the community in addition to indirect opportunities for local contractors and suppliers. The day before the vote, four First Nations from the Yinka Dene, just west of Kitimat, expressed their official opposition to Northern Gateway in a meeting with the Canadian Environmental Assessment Agency, the National Energy Board, and the Department of Fisheries and Oceans. The Yinka Dene have already gathered 160 B.C. First Nations behind a petition against the project. Other communities that have previously stated their opposition include Terrace, Prince Rupert, and Smithers.

See “Kitimat Residents Vote ‘No’ in Pipeline Plebiscite” from The Globe and Mail at: http://www.theglobeandmail.com/news/british-columbia/kitimat-residents-vote-in-northern-gateway-oil-pipeline-plebiscite/article17949815/, “Does Kitimat’s Vote Matter?” In The Tyee at: http://thetyee.ca/News/2014/04/12/Kitimat-Northern-Gateway-Vote/, and “Four Dene clans officially reject Northern Gateway pipeline” from The Globe and Mail at: http://www.theglobeandmail.com/news/british-columbia/four-dene-clans-officially-reject-northern-gateway-pipeline/article17948468/.

See https://workandclimatechangereport.org/2014/01/28/northern-gateway-headed-to-court-as-neb-approval-provokes-criticism-of-review-process/ for background on the current lawsuits against the Northern Gateway project by First Nations and environmental groups.

Meanwhile, on April 22nd, Environment Canada has recommended that the humpback whale be reclassified, from “threatened” to “species of special concern” under the Species At Risk Act. This would remove legal protection for humpback habitat (which happens to include the British Columbia coast where oil tanker traffic would increase if Northern Gateway is approved, and is part of the basis of a lawsuit launched by EcoJustice and others). See the CBC report at: http://www.cbc.ca/news/technology/humpback-whale-losing-threatened-status-amid-northern-gateway-concerns-1.2617633.

Unifor Condemns Northern Gateway & Keystone XL, Supports Line 9, and Establishes a New Energy Council within the Union

In December, Unifor released a “primer” explaining its opposition to the Northern Gateway and Keystone XL pipelines, and support for the smaller Line 9 pipeline. The national union condemns all recent major export pipelines on both economic and environmental grounds, asserting that export pipelines do not prioritize Canadian consumers or maximize Canadian jobs. It also fears massive exports will harm other sectors, such as manufacturing, as the Canadian dollar rises.
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Unifor asserts that the smaller Line 9 pipeline does not suffer from the same problems as the enormous export pipelines. Provided Line 9 oil is not shipped to Maine, and pending strict environmental and safety measures and First Nations approval, the union backs the Line 9 promise of energy independence and value-added manufacturing jobs, especially in Quebec. Unifor’s position echoes a statement issued by the Alberta Federation of Labour in October, which also contraposed Line 9 and major export pipelines.
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In contrast to the Unifor and AFL positions, some labour activists continue to dismiss Line 9 benefits as “myths”, instead emphasizing the magnitude of safety, environmental, and economic threats. January revelations regarding an influx of Enbridge maintenance notices filed with the NEB has reinforced concerns regarding the age and fragility of the pipeline.
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Delegates to Unifor’s Ontario Regional Council meeting in December approved recommendations for a long-term national energy strategy, including emissions targets and a climate action plan, energy independence, and a national energy grid. They also endorsed the National Executive Board’s call for a moratorium on unconventional fracking, until environmental and First Nations concerns have been addressed. Arriving at a national energy and environmental strategy for Unifor will be the task of its new Energy Council, soon to be constituted by delegates from all energy-related locals in the union.
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LINKS: 
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Debating Pipelines: A Primer is available at the Unifor website at: http://www.unifor.org/sites/default/files/documents/document/pipeline_primer_dec_2013.pdf
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Press release regarding Unifor Ontario Council Recommendation for a National Energy and Environmental Policy is at: http://www.unifor.org/en/whats-new/news/unifor-ontario-council-calls-national-energy-and-environmental-strategy.

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The official statement of Recommendations is available at: http://www.unifor.org/sites/default/files/attachments/ont_council_energy_recommendation.pdf

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The Alberta Federation of Labour statement is available at: http://www.afl.org/index.php/Press-Release/afl-makes-final-argument-in-favour-of-enbridge-line-9-pipeline.html.

“Six reasons why some labour is rallying against Line 9”, a Rabble.ca blog (Nov. 2013) is available at: http://rabble.ca/blogs/bloggers/jesse/2013/11/six-reasons-why-some-labour-rallying-against-line-9

Enbridge launches hundreds of digs for cracks in Line 9 (Jan. 21, 2013) at CBC Hamilton website at: http://www.cbc.ca/news/canada/hamilton/news/enbridge-launches-hundreds-of-digs-for-cracks-in-line-9-1.2504175

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.

On the Eve of the NEB Decision Re Northern Gateway Pipeline: Eyford Report Addresses First Nations and Energy Development

On December 5th, Prime Minister Harper’s Special Representative, Douglas Eyford, presented his report about how to engage with First Nations communities and governments in British Columbia and Alberta on future energy infrastructure development. The recommendations of Forging Partnerships, Building Relationships, are summarized in the Executive summary as:

“Building Trust: identifies the efforts needed to establish constructive dialogue about energy development, to demonstrate commitment to environmental sustainability, and to enhance understanding of and participation in pipeline and marine safety.

Fostering Inclusion: proposes focused efforts to realize Aboriginal employment and business opportunities, to establish collaborations among Aboriginal communities that allow for better outcomes, and to facilitate the financial participation of Aboriginal communities in energy projects.

Advancing Reconciliation: recommends targeted efforts to build effective relationships including refinements to Canada’s current approach to consultation and engagement, to explore mutually beneficial initiatives that support reconciliation, and to encourage Aboriginal communities to resolve shared territory issues.

Taking Action: recommends the establishment of a Crown-First Nations tripartite energy working group to create an open and sustained dialogue and action on energy projects.”

The official response to the Eyford report from Assembly of First Nations (AFN) National Chief Shawn Atleo states: “First Nations are not anti-development but if any project is going to proceed it must be responsible, sustainable, we must be involved, our rights must be respected and there must be meaningful engagement consistent with the principles of free, prior and informed consent as set out in the United Nations Declaration on the Rights of Indigenous Peoples.” The official response of the Union of British Columbia Indian Chiefs is more strongly worded. Grand Chief Stewart Phillip states: “It is clear that Mr. Eyford listened to our communities as many, if not all, of his recommendations reflect the public positions and statements of many First Nations standing against Enbridge’s proposed Northern Gateway Pipeline and Kinder Morgan’s proposed expansion of their Trans Mountain pipeline. Unfortunately, many of his recommendations will be ignored. The Harper Government has time and time again demonstrated their jobs agenda trumps, ignores and arrogantly dismissed our constitutionally-enshrined, judicially-recognized inherent Title, Rights and Treaty Rights.”

Almost 1,000 delegates met in Gatineau, Quebec for the Assembly of First Nations Special Chiefs Assembly, from December 10-12, coinciding with the first anniversary of the Idle No More protests. Their press release states that they discussed and made progress on a policy towards a First Nations Energy Policy, although their first priority was the recent government proposals regarding aboriginal education. An article in the Globe and Mail Report on Business on December 14th is an on-the-ground profile of “a community in conflict”, the Fort McKay First Nation in Alberta, as it tries to balance the economic benefits of oil sands development with the resulting environmental damage.

LINKS 

Forging Partnerships Building Relationships: Aboriginal Canadians and Energy Development. A Report to the Prime Minister. (The Eyford Report ) is at:  http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/www/pdf/publications/ForgPart-Online-e.pdf

“First Nations Leaders Cool to Blueprint for Garnering their Support on Energy Projects” in Globe and Mail (December 5, updated Dec. 6) at:

http://www.theglobeandmail.com/news/british-columbia/first-nations-support-for-energy-projects-hinges-on-ottawa-changing-its-ways-pm-told/article15784461/

Assembly of First Nations Chief Welcomes Eyford Report and calls for Action…is at: http://www.afn.ca/index.php/en/news-media/latest-news/assembly-of-first-nations-national-chief-welcomes-eyford-report-and-ca

UBCIC Responds to Forging Partnerships Building Relationships is at:  http://www.ubcic.bc.ca/News_Releases/UBCICNews12061301.html#axzz2nNjdoHsH

Assembly of First Nations Special Chiefs Assembly Concludes press release is at:  http://www.afn.ca/index.php/en/news-media/latest-news/assembly-of-first-nations-special-chiefs-assembly-concludes-reaffirmed

“A Line in the Oil Sands: the Dispute the entire Oil Industry is Watching” in the Globe and Mail (Dec. 14th) at: http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/the-fort-mckay-first-nation-a-line-in-the-oil-sands/article15968340/

Union Positions on Northern Gateway and Line 9 Pipelines

The Joint Review Panel for the Enbridge Northern Gateway Project, mandated by the Minister of the Environment and the National Energy Board, is reaching the final stages, with a report expected by the end of 2013. The written process was completed on May 31; final oral arguments will be heard in Terrace, B.C., beginning June 17 and lasting approximately two weeks. On May 31, the Government of British Columbia submitted a written statement opposing the current proposal and setting five conditions, including that First Nations treaty rights must be respected, and B.C. must receive its “fair share” of the fiscal and economic benefits of the pipeline construction and operation, as they first demanded in 2012.

Receiving less coverage were the May 31 written submissions by the Communications, Energy and Paperworkers Union (CEP), the Alberta Federation of Labour, and the United Fishermen and Allied Workers’ Union (UFAWU). All three unions oppose approval of the pipeline, arguing that refining jobs in Canada will be lost by shipping raw bitumen to Asia.

The CEP position in support of Enbridge’s West-to-East Line 9 pipeline project is more controversial. As reported by the Toronto Globe and Mail and the Montreal Gazette, the CEP in Quebec is part of a campaign by the Coalition in Support of Line 9 Reversal, which includes the Quebec Employers Council, Montreal Board of Trade, and the Fédération des chambres de commerce du Québec. Representatives launched the coalition in Montreal on May 29, stating, “This project is essential for Montreal and the whole Quebec economy and has broad support from the Ontario and Quebec governments … If refining does not remain competitive in Montreal East, then ultimately, there will be more closures and the specialized petrochemical plants will have to import their feedstocks or face closure.”

LINKS:  

Full Joint Review Panel for Northern Gateway website is at:  http://gatewaypanel.review-examen.gc.ca/clf-nsi/hm-eng.html (English) and http://gatewaypanel.review-examen.gc.ca/clf-nsi/hm-fra.html (French); all submitted documents are available under Section D: Intervenors/Intervenants.

B.C. Officially Opposes Enbridge Northern Gateway Pipeline (May 31), and multiple links to related stories, at the CBC website at: http://www.cbc.ca/news/canada/british-columbia/story/2013/05/31/bc-northern-gateway-rejected.html

Written submissions to Northern Gateway hearings: by CEP is at: https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624910/785392/959884/D39-13-1_CEP_-_Final_Argument_of_CEP_%2800519679%29_-_A3I1H1.pdf?nodeid=959885&vernum=0 ; by Alberta Federation of Labour at (and see further details of their position in a separate Submission to the Standing Committee on Alberta’s Economic Future on The Study of the BRIK (Bitumen Royalty in Kind) Program (March 2013) at: http://www.afl.org/index.php/component/option,com_sectionex/Itemid,118/id,7/view,category/.

Submission by the United Fishermen is at:  https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624910/697824/960959/D203-14-1_United_Fishermen_and_Allied_Workers%27_Union_-_CAW_-Final_Arg_May_31.13_-_A3I2A8?nodeid=960822&vernum=0 

RE LINE 9:

“Refinery union warns against TransCanada exports of crude through Quebec ” in Globe and Mail (May 29,2013) by Nathan Vanderklippe at:

“Line 9 pipeline reversal last chance to save 2,000 jobs: lobby group” in the
Montreal Gazette (May 29) at:http://www.montrealgazette.com/business/Line+pipeline+reversal+last+chance+save+jobs+lobby+group/8451769/story.html