The District of Kitimat has issued a boil water advisory.
Late Saturday evening, the District issued this statement on their website
Due to the significant rainfall, water entering the District of Kitimat’s system is turbid. The District is still treating water, however, until further notice, boil water for 2 solid minutes before using it for cooking or drinking.
The District of Kitimat is working with Northern Health on this matter.
North Coast – coastal sections
The third and final disturbance in this series of storms will approach the North and Central Coasts on Sunday. An intense low is forecast to track west of Haida Gwaii as moves northward. Southeast winds up to 100 km/h will develop over Haida Gwaii midday Sunday and then spread to the North Coast – Coast Sections and Central Coast – Coastal Sections in the afternoon. Winds will diminish Sunday evening as the low moves away from the region.
High winds may toss loose objects or cause tree branches to break.
Wind warnings are issued when there is a significant risk of damaging winds
The Environment Canada web page says Kitimat received 24 mm of rain in the 24 hours preceeding the forecast at 2039 on Saturday.
Sunday’s forecast calls for
Showers. Amount 10 to 20 mm. Windy this evening and after midnight. Low 8.
Sun, 11 Oct Showers. Amount 5 to 10 mm. Wind becoming south 40 to 60 km/h late in the morning. High 10.
Night Showers. Amount 20 mm. Wind south 40 to 60 km/h becoming light near midnight. Low 8.
It comes down to the idea that Harper will approve Gateway “in the national interest,” count on a vote split between the NDP and Liberals in British Columbia to avoid any consequences to the Conservative majority and then leave it up to Enbridge to actually get the job of building the pipeline and terminal project done.
Mason quotes “ a senior member of Mr. Harper’s government,” and while Mason doesn’t say what part of Canada the source is from, (unlikely in my view the source is from BC) what the member told Mason reveals that the Harper government is still mired in it the Matrix-world that has always governed its policy on Northern Gateway.
The first step, apparently coming in the next few days, is that the Harper government “rigorous” new tanker protocols for traffic along the west coast.
Even if the protocols are new, just who is going to enforce those policies?
Even if Gateway and the Kinder Morgan expansion went ahead, he argued, B.C. would still only see about 60 per cent of the annual oil tanker traffic the neighbouring state of Washington deals with. And yet Washington has an exceptionally clean record when it comes to the safe transport of oil in and out of its harbours – this, he noted, while operating under marine safety regulations that are not as rigorous as the ones Ottawa intends to put in place for the shipment of oil along the West Coast.
There are a lot big problems with that statement.
First, there’s an organization that the Mason’s source may have heard of known as the United States Coast Guard. The United States rigorously enforces its “weak” regulations, while Canada’s Coast Guard is plagued by staff shortages and budget cuts.
Second, the State of Washington also rigorously enforces its environmental regulations, not only on the coast but across the state. I have been told by retired British Columbia forestry and environmental officials (not to mention Fisheries and Oceans) that there are often more state environmental watch dogs in most Washington State counties than in all of northern British Columbia where the Northern Gateway is supposed to be going.
The September 2013, report by the US National Oceanographic and Atmospheric Administration on the export of Canadian bitumen sands through the US shows that the Washington Department of Ecology is working on strengthening regulations for both pipelines and (where it’s in state jurisdiction) tanker traffic. The same report says the state of Alaska Department of Environmental Conservation is updating its plans and possible regulations in anticipation that bitumen filled tanker traffic from Kitimat would come close to the coast en route to Asia.
Third, the coast of northern British Columbia is more rugged and stormy than the waters off Washington.
The one factor that the urban media seems to ignore, is the big question.
Who pays to enforce the 209 conditions that the Joint Review Panel imposed on the Northern Gateway project?
If the Harper government announces new tanker regulations in the coming days, who pays to enforce those regulations?
There were no provisions in the February budget for enforcing the 209 conditions. Rather there were continuing budget cuts to the very departments that the JRP ruled must be involved in the studying, planning, implementation and enforcement of the 209 conditions, Environment Canada, Fisheries and Oceans and Transport Canada.
So while Mason says “The federal government will play its part in meeting the five conditions laid out by the B.C. government for support of the project,” the response must be “Show me the money!”
During the recent plebiscite campaign, Northern Gateway finally revealed its plans for the “super tugs” that will escort tankers along the coast and up Douglas Channel. Owen McHugh, a Northern Gateway emergency manager said, “Adding these four or five tugs to the north coast provides a rescue capability that doesn’t exist in this format. So for any large commercial vessel that is traveling on our coast, this capacity to protect the waters of the north coast.” Those tugs and Northern Gateway’s plans to station teams at small bases along the coast means that the company is, in effect, creating a parallel, private, coast guard on the BC Coast.
What about the Coast Guard itself? The Harper government has been gutting Coast Guard resources along the coast even before it had its majority. It closed and dismantled the Kitsilano Coast Guard station in Vancouver. There is more dependence on the Royal Canadian Marine Search and Rescue volunteers, who have to raise money locally for modern rescue boats which cost up to $750,000. The money that government was “generously” giving to RCMSAR had to be split up to 70 stations in 42 communities along the coast as well as its administrative and training staff.
Does anyone notice what is missing from that list? What’s missing are better Coast Guard vessels just to police all the expected tanker traffic on the west coast (whether LNG or bitumen) and no mention of dedicated spill response vessels, which under the “polluter pay” policy will likely be left to private contractors (and hope that the ships are available at the time of a spill)
How will we know?
Then there is the question of how will people even know if the 209 conditions are being enforced; whether or not the reports demanded by the Joint Review Panel are going be sitting on the National Energy Board server and ignored.
There is every indication, given the government’s obsession with secrecy that until there is a disaster the Canadian public will never know what’s going on. Harper’s muzzling doesn’t just cover government scientists, it covers the lowest level of bureaucrats, as District of Kitimat Council found out when low level DFO bureaucrats refused to appear publicly before council to discuss the risk to the Kitimat River.
So the scenario is, according to Mason’s source
“I think once this decision is made, Enbridge could have shovels in the ground the next day,” the member said. “They are ready to go. This means the First Nations could start realizing profits from this right away, as opposed to the promised profits from LNG, which may never materialize. I think they need to think about that.”
While the LNG market is volatile, the “member” forgets that most of the First Nations of British Columbia have opposed the Northern Gateway since Enbridge first floated the idea in 2001. The current LNG rush didn’t start until after Japan shut down its nuclear power plants after the March 2011 earthquake, The first major anti-Enbridge rally, “The Solidarity Gathering of Nations” was held at Kitamaat Village in May 2010.
Writing off BC
It appears that Conservatives, in their election strategy have already written off Gateway opponents:
Still, there is a raw political calculus that needs to be taken into account. Polls measuring support for the pr.oject in B.C. vary, but generally have shown that anywhere from 55 to 60 per cent of the province opposes Gateway and 40 to 45 per cent support it. Isn’t that enough to scare off a government that needs critical votes in B.C. to win another majority?
“Let’s say 60 per cent are against it,” he said. “And that vote splits between the Liberals and the NDP come the next election. Who are the 40 per cent going to vote for?”
Mason also speculates that Harper will approve Gateway to stick it to Barack Obama and the delays on Keystone XL. As he points out that’s a political, not an economic decision.
There are civil disobedience classes being held across northwestern BC this month. Access to Information requests by the Vancouver Observer revealed increased RCMP surveillance of the anti-Gateway movement. There has always been talk of a “war in the woods” if the pipeline project is forced on an unwilling population.
So it comes down to a question that Mason and the Conservatives are avoiding. Mason’s source says Northern Gateway is crucial to the national interest:
“At the end of the day, you have to do what’s right, not what’s politically expedient,” he said. “You have to ask: What’s in the best interests of all Canadians?”
So given all that will the Harper government leave Enbridge to tough it out on its own?
But will the Harper government, with its bean counting obsession on balancing the budget be willing to pay for all that is needed?
There’s lots of marine clay along the pipeline route, laid down by ancient oceans. That brings to mind just one word. Quagmire, not just the wet, sticky BC mud but a political quagmire.
Environment Canada is cutting its Compliance Promotion and Enforcement, marine pollution and emergency response budgets over the coming years, raising questions when cuts to other federal departments are added in, about just how the department can continue to operate, much less enforce the 209 conditions that the Joint Review Panel has laid down for the Enbridge Northern Gateway project, not mention future projects connected with LNG and mining in the northwest.
A table published on the site shows that Environment Canada spent $17,467,430 on compliance and enforcement in fiscal 2011 to2012; $16,695,292 in 2012 to2013. It estimates spending a little more in 2013 to 2014, $16,725,035; then comes a steady drop $15,821,926 for 2014 to 2015; $15,321,593 for 2015 to 2016 and $15,356,059 for 2016 to 2017.
According to organizational table on the spending estimates site, Marine Pollution and
Environmental Emergencies comes under the Substances and Waste Management division, with most of the department’s concentration on “substances management” and “effluent management.” Despite the probable growing threat to the environment from marine pollution and the possibility of a marine disaster from a tanker plying the northwest, the overall budget for Substances and Waste Management is also shrinking; from $83,291,322 in 2011 to 2012, $79,295,781 in 2012 to 2013. $76,209,841 for 2013 to 2014, $75,747,789 for 2014 to 2015 and $73,834,432 for 2015 to 2016.
The budget cuts take effect just as the Enbridge Northern Gateway project, if it gets a final go ahead and the LNG projects begin to come on stream.
Overall Environment Canada will spending from $1.01 billion in 2014 to 2015 to $698.8 million in 2016 to2017.
In addition, Environment Canada’s list of strategic priorities has absolutely no mention of either monitoring and enforcing pipeline conditions nor protecting the British Columbia coastline.
Plans for meeting the “Sustainable Environment” priority:
Improve and advance implementation of the Species at Risk program including by reducing the number of overdue recovery documents;
Pursue a collaborative approach to protect and conserve biodiversity at home and abroad, including by supporting the development of a National Conservation Plan and the maintenance and expansion of a network of protected areas;
Contribute to responsible resource development through the provision of science-based expert advice during environmental assessments;
Advance work through the Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring;
Implement a comprehensive approach to protecting water and to ecosystem management;
Continue collaborative work with the provinces and territories on water quantity monitoring through the National Hydrometric Program; and,
Promote compliance with and enforce wildlife acts and regulations.
The Star notes “Spending on the department’s climate change and clear air program is projected to decrease from $234.2 million this year to $54.8 million in 2016-17.”
On the site, Environment Canada notes
As is the case for all organizations, Environment Canada faces uncertainties in meeting its objectives. These uncertainties create opportunities and risks with potential to positively or negatively affect program results and outcomes. Uncertainties include those driven by external environmental factors, such as dependencies on partners and stakeholders, changing regulatory and legislative requirements, increasing Canadian and international expectations concerning the management of the environment and the continuously increasing pace of advances in science and technology.
Environment Canada gives itself an out, should the Conservative government suddenly be converted to environmental protection while on the road to the 2015 election. Since it notes
The 2015–16 decrease is explained by the reduction in funding for the SDTC Foundation and the sun setting of temporary funds. In 2016–17, the decrease in funding is explained by the sun setting of funding for temporary initiatives. Sun setting programs are subject to government decisions to extend, reduce, or enhance funding. Outcomes of such decisions would be reflected in the Department’s future Budget exercises and Estimates documents.
In other words, Environment Canada is becoming more dependent on partnerships with private companies and foundations to help provide funding for what the government should be doing and it is allowing for the politicians to introduce new temporary programs, probably just before the election, to make it look green.
The Haisla Nation are calling on the federal cabinet to postpone its decision on the Northern Gateway project to allow time for adequate consultations with First Nations, according to the Haisla response to the Joint Review Panel, seen by Northwest Coast Energy News.
The Joint Review Panel report and recommendations were released on Dec. 19, 2013 and the cabinet has 180 days from that point to recommend approval of the project.
The Haisla argue that Section 54 of the National Energy Board act allows the Governor-in-Council, the federal cabinet, to extend the timeline if it wants to, if recommended by the Minister of Natural Resources.
So far, the Harper government has refused to extend the deadline. The Haisla response document says Chief Counsellor Ellis Ross spoke to Minister of Natural Resources Joe Oliver on the telephone requesting the extension, but, according to the document, all Oliver did was point to the legislation that calls for the 180 day response to a joint review report.
The Haisla response document also has a long lists of what the Haisla say are flaws in the Joint Review Panel report.
In correspondence with the Haisla, Brett Maracle, Crown Consultation Coordinator at the Canadian Environmental Assessment Agency for the Northern Gateway project, says:
the process set out by the Government of Canada in the Aboriginal Consultation Framework was finalized after receiving and carefully considering input from Aboriginal groups….The Government of Canada believes the process outlined in the Aboriginal Consultation Framework provides for a deep level of meaningful consultation with Aboriginal groups with Phase IV being the final step prior to a decision being made on the Project.
The Haisla dispute there has been any “deep level of meaningful consultation,” citing in the document a long list of attempts to engage the federal government with little or no response.
In their response, the Haisla Nation Council says:
Canada, has, to date, refused to engage in meaningful consultations with the Haisla Nation. Instead Canada has unilaterally imposed what it calls a “deep level meaningful consultation” process which is fundamentally flawed for a number of reasons…
The document lists attempts by the Haisla to engage with ministers and government departments including requests for a meeting with then Environment Minister Peter Kent, prior to the opening of the JRP formal hearings in Kitamaat Village in January 2012. Although the Haisla requested a meeting with Kent, several times in 2011, no meeting ever occurred. It was not until April 19, 2012, four months later that Kent replied to the Haisla saying he had asked the President of the Canadian Environmental Assessment Agency to meet with the First Nation prior to the start of the JRP hearings. However, it was apparently impossible to schedule such a meeting in December, 2011.
To which the Haisla reply:
For over six years, Canada ignored Haisla Nations requests for meetings. Once the JRP’s oral hearings process commenced, Canada further closed the door on any opportunity for a meeting until the JRP Report was release. This refusal to consult was baseless. The ongoing JRP process was not a rational or justifiable basis for Canada’s refusal to consult…
Canada has yet to meet with the Haisla Nation to discuss the proposed project, other than to tell the Haisla Nation it is only engaging through the JRP process for now. This is not consultation. It is, perhaps, at best an initial step towards a consultation process.
Ignoring the Eyford report
In March 2013, Natural Resources Minister Joe Oliver flew to Terrace for a photo op to announce the appointment of Douglas Eyford to consult First Nations on the Northern Gateway project. Oliver then flew back to Ottawa without meeting anyone in the region. Eyford’s report Forging Partnership Build Relationship was released in November, 2013.
The Haisla say:
Mr. Eyford’s Report recommended that Canada should consider undertaking early engagement to address Aboriginal interests that may not be dealt within a regulatory process. The Haisla Nation has been seeking such early engagement from Canada since the proposed project was first announced.
Mr. Eyford’s Report also recommended that Canada should engage and conduct consultations n addition to those in regulatory processes, as may be required, to address issues and facilitate resolutions in exceptional circumstances. The Haisla Nation also asked for this, identifying early that this proposed project was an exceptional circumstance due to the significant potential impacts on the Haisla Nation.
The Haisla Nation Council response was sent to Brett Maracle, Crown Consultation Coordinator at the Canadian Environmental Assessment Agency for the Northern Gateway project. The Haisla also sent copies of the response to Joe Oliver, the Minister of Natural Resources, Gaetan Caron, Chair of the National Energy Board, Leon Aqlukkaq, Minister of the Environment, Bernard Valcourt Minister of Aboriginal Affairs and Northern Development, Gail Shea, Minister of Fisheries and Oceans, BC Premier Christy Clark, Steve Thomson, BC Minister of Forests, Lands and Natural Resources and Mary Polak, BC Minister of the Environment.
In the response, seen by Northwest Coast Energy News, the Haisla are objecting to both the government’s and the JRP’s attitude toward the idea of consultation as well as some of the specific findings by the panel. The Haisla also fault the JRP process for refusing to take into consideration reports and studies that were released after the evidentiary deadlines.
Overall, the Haisla say
The JRP report is written in a way that prevents an assessment of how or whether the JRP considered Haisla Nation concerns and of how whether the JRP purports to address the Haisla Nation’s concerns. Further the JRP Report is lacking n some of the fundamental justification required to understand how arrived at its recommendations.
So what are the Haisla concerns?
In the document filed with the Canadian Environmental Assessment Agency, the Haisla say:
The proposed project carries with it an inordinate amount of risk to Haisla Nation Territory. The Haisla Nation is being asked to play host to this proposed project, despite the risk the proposed project poses to the land waters and resources relied on by the Haisla Nation for sustenance and cultural heritage. The risk includes a huge risk to Haisla Nation aboriginal rights to trap, hunt and fish, to gather seafood and gather plant materials. It could result in significant damage to the Haisla Nation cultural heritage—its traditional way of life…..
The terminal site is one of the few areas suitable for terminal development in our territory. It is also home to over 800 Haisla Nation Culturally Modified Trees (CMTs). Northern Gateway proposes to irrevocably alter the land, the use of the land and access to this land for the duration of the proposed project, which is anticipated to be at least 80 years. This irrevocable alteration includes the felling of our CMTS….
By seeking to use Haisla Nation aboriginal title land for the proposed project, Northern Gateway will be effectively expropriating the economic value of this land. Northern Gateway is proposing to use Haisla Nation aboriginal title land for a project with no benefit to the Haisla Nation and which is fundamentally at odds with Haisla Nation stewardship principles.
Obstructed clear understanding
The Haisla say that “Canada has failed to adhere is own framework” for the JRP because in the Aboriginal Consultation Framework says “Federal departments will be active participants in the JRP process to ensure the environmental assessment and consultation record, is as accurate and complete as possible.”
The Haisla say “Canada provided limited written evidence to the JRP” and goes on to say that the “federal governments not only failed to provide relevant information but also obstructed a clear understanding of project impacts.”
Among the evidence relevant to Northern Gateway that the federal government was “unable or unwilling to provide” includes:
Natural Resources had expertise on acid rock damage and metal leaching but did not include evidence on that in their evidence
Fisheries and Oceans did not have a mandate to conduct an assessment of the potential toxicological effects of an oil spill.
Environment Canada did not review or provide information on the spills from pipelines.
The federal government witnesses were unable to answer questions about the toxicity of dispersant.
Environment Canada was asked if it had studies of the subsurface currents and the movement of submerged oil. Environment Canada told the JRP did not measure hydrodynamic data but relies on DFO. DFO cold not provide any witnesses to the JRP with expertise on subsurface currents.
In the formal response on the JRP report, Haisla also say:
The JRP has concluded that the risk of a large spill form the pipeline in the Kitimat River Valley is not likely, despite very significant information gaps relating to geohazards, leak detection and spill response.
The JRP has concluded that a large spill would result in significant adverse environmental effects. However, the JRP appears to base a finding that these effects are unlikely to occur on an unreasonable assumptions about how widespread the effects could be or how long they would last. The JRP has not considered the extent to which a localized effect could impact Haisla Nation.
The JRP relies on the concept of “natural recovery” as mitigation of significant adverse effects. The Haisla Nation asked the JRP to compel information from Northern Gateway about the applicability of its evidence to species found in Haisla National Territory. The JRP, however, refused to compel this evidence from Northern Gateway.
The JRP has accepted at face value that Northern Gateway would shut down its pipeline within 13 minutes in the event of a rupture and has failed to consider the effects of a large spill that is not detected with this timeframe through the control centre (or was in the case of Kalamazoo, is detected by the control centre but is systematically mischaracterized and ignored).
As part of the consultation process the Haisla want 22 changes to the JRP report, changes which echo the Haisla Final Written Argument that was filed at the end of the hearings.
The Panel should find that potential impacts to asserted Haisla Nation aboriginal rights and title from the proposed project are such that project cannot be found to be in the public interest in the absence of meaningful consultation… The current status of engagement and the federal government imposition of a 6-month time limit to complete consultation raise serious concerns that meaningful consultation will not be possible. Therefore the proposed project is not in the public interest.
Among the others are:
The JRP should have determined the significant of adverse effects to rare ecological communities that cannot mitigated.
The JRP should have provided more information to allow a reasonable assessment of the risk of a spill from the pipelines.
The JRP would have considered all factors to contribute to the risk of a spill.
The JRP should have found that Northern Gateway’s assessment of the toxicity of an oil spill because it did not consider the full range of products to be shipped nor did it consider the potential pathways of the effect of a toxic spill, whether from a pipeline, at the marine terminal or in the case of a tanker spill
The evidence had not demonstrated that Northern Gateway’s spill response would be able to mitigate the effects of a spill either at the pipeline, at the Kitimat marine terminal or from a tanker spill.
The JRP did not consider the impact of the Kitimat Marine Terminal on their cultural and archaeological heritage, including culturally modified trees.
The Haisla Nation in their response to the Crown on the Northern Gateway Joint Review Panel details four studies, three Canadian and one American that were released after the Joint Review evidentiary deadline had passed, evidence that the Haisla say should be considered in any consideration of the Northern Gateway pipeline, terminal and tanker project. (The American report from the National Oceanic And Atmospheric Administration was released after the JRP final report)
JRP chair Sheila Leggett’s constant citing of rules of procedure and her stubborn refusal to consider new evidence and studies in a dynamic situation that was changing rapidly was one of the reasons that many people in the northwest said the JRP had lost credibility.
The Haisla say: “It is incumbent upon Canada to consider and discuss the information in these reports as part of a meaningful consultation process…” and then lists “key findings” that have potential impacts on aboriginal rights and title:
The West Coast Spill response for the government of British Columbia which found:
Most oil spilled into the marine environment cannot be cleaned up
There is a disconnect between planning and actual repose capability
Canada’s spill response is “far from world class.”
The Transport Canada Ship Oil Spill Preparedness and Response study:
Douglas Channel will go from low risk to high risk for pills if the project goes ahead
The study recommends preparation for a “true worst case discharge” rather than “the credible worst case discharge” as proposed by Northern Gateway
Canada needed a much more rigorous regulatory regime covering tankers.
The joint federal government technical report on the properties of bitumen from the Canadian Oil Sands:
There are uncertainties on how diluted bitumen would behave in a marine environment.
Northern Gateway did not provide adequate information about sediment levels to allow for proper study of interaction with diluted bitumen
Dispersant may not be effective.
Weathered diluted bitumen would “reach densities at which it will sink freshwater without mechanical or physical assistance.”
The US National Oceanic And Atmospheric Administration report on Transporting Alberta Oil sands:
Diluted bitumen has “significant differences from conventional crudes.’ (The JRP used conventional crude as a benchmark in its findings)
The physical properties of diluted bitumen “fluctuate based on a number of factors.
Pipeline operators may not have detailed information related to products in the pipeline at the time of a spill
There is a lack of experimental data on the weathering behaviour of oil sands product which limits the ability of spill response organizations “to understand and predict the behaviour and fate of oil sands products in freshwater, estuarine and saltwater environments.”
The Haisla Nation have filed a challenge to the Northern Gateway Joint Review Panel with the Federal Court of Appeal requesting that court quash the JRP findings.
The Haisla suit comes at a time that a coalition of environmental groups and the Gitxaala Nation are asking for court reviews of the JRP. The court challenge also comes at time when the District of Kitimat Council has maintained its position on an April 12 plebiscite asking the residents of Kitimat if they approve of the Joint Review Panel’s findings on the Northern Gateway project.
Late Wednesday, the Gitga’at Nation at Hartley Bay also announced they are challenging the JRP.
The Haisla argument filed by Jennifer Griffiths of Donovan and Company, representing the Haisla Nation, points to the Scope of Factors governing the JRP saying the proponent (Enbridge Northern Gateway) must “provide a sufficient description of the local setting to allow the Panel, other regulators, the public and others to clearly understand the rationale for environmental assessment decisions.”
The application asks that courts order that:
the findings be referred back to the JRP for further consideration
the Panel obtain and consider the necessary information about marine environment and freshwater and marine fish habitat
the Panel provide its assessment of effects of the project on Haisla Nation cultural heritage
the court direct the Panel to provide it assessment of the adequacy of Crown consultation to date
the Panel reconsider its public interest assessment after considering adequacy of consultation, impacts on cultural heritage and impacts on aboriginal rights and interests
that the JRP report “as issued on December 19, 2013, does not contain the recommendations required” under the Canadian Environmental Assessment Act.
In the Haisla challenge, the Nation argues the Panel erred by:
making findings about potential impacts to the marine environment and freshwater and marine fish habitat without having before it information it was required to consider under the Scope of Factors
failing to assess the environmental effects of the project on Haisla Nation cultural heritage
failing to provide a rationale for its conclusion that there would be no adverse environmental effects on cultural heritage
failing to provide a rationale for its conclusions regarding significant adverse effects, including but not limited to the conclusion that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions are very low
failing to provide a summary of comments received from interested parties on potential conditions
concluding that a large spill from pipeline facilities, terminal or tankers is unlikely
concluding that, after mitigation, the likelihood of significant adverse environmental effect resulting from the project malfunctions or accidents is low
fails to justify its conclusion that a large spill from pipeline facilities terminal or tankers is unlikely
fails to justify its conclusion that, after mitigation, the likelihood of significant adverse effects resulting from the project malfunctions is very low.
Fails to provide a rationale for the conclusion that there would be no adverse environmental effects on cultural heritage
The Haisla challenge also says the Joint Review Panel failed “to conduct its assessment in a precautionary manner” when it recommended:
that the project is not likely to result in significant adverse effects with respect to freshwater fish and fish habitat
that project is not likely to result in significant adverse effects with respect to marine fish and fish habitat
recommended that the project is not likely to cause significant adverse environmental effects in Canada on cultural heritage
concluded that a large spill from the pipelines, terminal or tanker is unlikely
concluded that the project is in the public interest.
The Haisla challenge also argues that the “Panel failed to observe procedural fairness in the hearing and deliberation” by:
failing to extend timelines a reasonably requested by parties
failing to consider all the information available to it about the large spill of oil as a result of the rupture of the Enbridge pipeline in Kalamazoo, Michigan
failing to assess impact on aboriginal rights or interests in its public interest assessment
failing to fully consider the submission of the Haisla Nation on potential conditions for the project.
The challenge also deals with the issue of cultural modified trees, especially the JRP’s finding that “impacts to Haisla Culturally Modified Trees can be mitigated” and by concluding “that impacts to Haisla Nation Culturally Modified Trees can be mitigated by including a condition that Northern Gateway file a plan to protect and manage post-1846 CMTS.” The part of the challenge dates back to time when Enbridge surveyors entered Haisla traditional territory without permission and as part of the survey cut down or damaged cultural modified trees.
On the afternoon of January 22, the Gitga’at Nation at Hartley Bay also announced they were filing a challenge to the JRP.
A news release from the Gitga’at says “the Joint Review Panel erred in law, including by failing to properly consider all evidence provided by the Gitga’at, whose culture and way of life would be severely threatened by supertanker traffic, shipping bitumen from Alberta and importing condensate from Asia and elsewhere.”
The application states that while the Gitga’at are resilient, they are also highly vulnerable to threats to their local ecosystems and community well being from impacts cause by increased tanker traffic. The negative impacts to Gitga’at society, culture, identity, health, and economy will only increase in the event of an oil spill, with the impacts increasing with the size and consequences of the spill. Traditional foods harvested from the sea comprise the largest portion of the Gitga’at diet.
On January 16, Ecojustice lawyers, representing ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed the lawsuit seeking a court order to prevent Cabinet from relying on the flawed JRP report to approve the proposed pipeline.
“The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment,” said Karen Campbell, Ecojustice staff lawyer. “The panel made its recommendation despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment.”
The humpback whale recovery strategy identifies toxic spills and vessel traffic as two threats to the iconic species’ survival and recovery — all relevant information that should have been considered during the review hearings.
On January 16, Fisheries and Oceans issued a statement “clarifying” its role after signing an agreement with the National Energy Board on fisheries protection along pipeline routes, saying DFO “remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.”
DFO says there is little difference between its agreement with the NEB and collaborative agreements with the provinces.
Fisheries and Oceans Canada has established a collaborative agreement with the National Energy Board that will help eliminate overlap and duplication during regulatory reviews while maintaining a strong regime to manage threats to fish and fish habitat.
Fisheries and Oceans Canada remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.
Our collaborative arrangement builds on the decades of training, experience and expertise of NEB biologists in assessing the potential environmental impacts of development projects, including regarding fish and fish habitat.
These arrangements will yield a number of benefits:
• Ensuring regulators focus on the greatest threats to fish and fish habitat;
• Making the best use of available resources; and
• More efficient approval processes.
The Policy and Operational Guidelines that are followed by DFO staff and anyone else involved in these matters are available on Fisheries and Oceans Canada’s website.
The National Energy Board is best placed to deliver regulatory review responsibilities under the Fisheries Act for activities relating to federally regulated energy infrastructure (such as pipelines).
The Memorandum of Understanding between Fisheries and Oceans Canada and the National Energy Board will enable the NEB to:
• Review proponent applications for impacts to fish and fish habitat;
• Assess appropriate measures to avoid and mitigate impacts to fish and fish habitat;
• Include measures to avoid and mitigate impacts as conditions of licences, orders or certificates issued by the NEB; and
• Assess the acceptability of proponent offsetting plans when authorization is required.
Over the years, DFO has established similar arrangements with some Provinces and with Conservation Authorities.
In all cases, the standards for fisheries protection are established by DFO and the Fisheries Act Authorizations continue to be done by DFO.
Skeena Bulkley Valley MP Nathan Cullen says at least two of the Northern Gateway Joint Review Panel’s 209 conditions may already be outdated.
In a news release January 15, 2013, Cullen said, “The requirement of $950 million in spill insurance was recently called into question as reports surfaced of cleanup costs at the sites of Enbridge’s 2010 Michigan spill surpassing $1.035 billion.”
Cullen is referring to a study by Environment Canada Emergencies Science and Technology,Fisheries and Oceans Canada Centre for Offshore Oil, Gas and Energy Research and Natural Resoures Canada on bitumen that was completed in November and released this week.
The study found
. Like conventional crude oil, both diluted bitumen products floated on saltwater (free of sediment), even after evaporation and exposure to light and mixing with water;
. When fine sediments were suspended in the saltwater, high-energy wave action mixed the sediments with the diluted bitumen, causing the mixture to sink or be dispersed as floating tarballs;
(The use of the term “tarball” in this report follows convention in the literature and refers to the consistency of floating, heavily-weathered oil. It does not describe the chemical composition of the product.)
. Under conditions simulating breaking waves, where chemical dispersants have proven effective with conventional crude oils, a commercial chemical dispersant (Corexit 9500) had quite limited effectiveness in dispersing dilbit;
. Application of fine sediments to floating diluted bitumen was not effective in helping to disperse the products;
. The two diluted bitumen products display some of the same behaviours as conventional petroleum products (i.e. fuel oils and conventional crude oils), but also significant differences, notably for the rate and extent of evaporation.
The Panel acknowledges the variety of opinions from experts regarding the behavior and fate of oil spilled in aquatic environments. These experts generally agreed that the ultimate behavior and fate of the oil would depend on a number of factors, including the volume of oil spilled, the physical and chemical characteristics of the product, and the environmental conditions at the time.
The Panel finds that likely oil behaviour and potential response options can be predicted from knowledge of the type of oil spilled and its physical and chemical characteristics. Details of oil behaviour and response options cannot be specified until the actual circumstances of a spill are known.
The Panel is of the view that, if placed along a spectrum of: tendency to submerge; persistence; and recovery difficulty, dilbit would be on the higher end of the spectrum, similar to other heavy oil products.
The Panel accepts evidence from previous spills showing that, in response to circumstances at the time, the behaviour of heavier oils, including conventional oils and synthetic crudes, can be dynamic. Some oil floats, some sinks, and some is neutrally buoyant and subject to submergence and overwashing.
Although the project would transport different types of oil, the majority of the evidence presented during the hearing process focussed on whether dilbit is likely to sink when spilled in an aquatic environment. In light of this, the Panel has chosen to focus its views on dilbit. The Panel heard that the fate and behaviour of dilbit has not been studied as much as that of other oils.
Although there is some uncertainty regarding the behavior of dilbit spilled in water, the Panel finds that the weight of evidence indicates that dilbit is no more likely to sink to the bottom than other heavier oils with similar physical and chemical properties.
The Panel finds that dilbit is unlikely to sink due to natural weathering processes alone, within the time frame in which initial, on-water response may occur, or in the absence of sediment or other particulate matter interactions. The Panel finds that a dilbit spill is not likely to sink as a continuous layer that coats the seabed or riverbed.
“It hasn’t even been a month since the JRP released their 209 conditions, and it seems like we’re already seeing some of them become obsolete,” Cullen said.
“Throughout the review process, the JRP continually ignored the situation in Michigan as it unfolded before our eyes. They saw the spill caused by Enbridge’s negligence, which was worsened by Enbridge’s incompetence, and how it brought untold damage to the local ecosystem and cost over $1 billion US. But the 209 conditions didn’t reflect what we learned about Enbridge’s history or its culture, or what we’ve learned about diluted bitumen at all.”
The Joint Review process was set up to deliver a positive verdict, according to Cullen, regardless of what the real life case studies in Michigan had already shown. “To say that it won’t cost as much – if not more – to respond to a spill in a remote corner of northwestern BC during winter than it was in Michigan in the middle of July is ridiculous,” Cullen said.
“What’s even more astonishing is that we asked repeatedly for these studies on the behaviour of diluted bitumen in the marine environment to be part of the Joint Review Panel’s assessment. That the government waited until after the JRP had given its conditional yes to release these findings is not only appalling but also highly suspect.
Cullen says there are two key questions that the Harper government now must answer. “What kind of protection is the government providing when it lowballs on the insurance for oil spills? And what kind of oversight is it giving Canadians when the verdict is given before the evidence is released?”
If you read both the 76 pages of Volume One of the Northern Gateway Joint Review decision and the 417 pages of Volume 2, a total of 493 pages, one word keeps reappearing. That word is “burden.”
The JRP panel asks “How did we weigh the balance of burdens, benefits, and risks?”
And it says:
Many people and parties commented on the economic benefits and burdens that could be brought about by the Enbridge Northern Gateway Project. In our view, opening Pacific Basin markets wouldbe important to the Canadian economy and society. Though difficult to measure, we found that the economic benefits of the project would likely outweigh any economic burdens.
The JRP notes:
The Province of British Columbia and many hearing participants argued that most of the project’s economic benefits would flow to Alberta, the rest of Canada, and foreign shareholders in oil and pipeline companies. They said British Columbia would bear too many of the environmental and economic burdens and risks compared to the benefits.
But, as the panel does throughout the ruling, it accepts, with little, if any, skepticism, Northern Gateway’s evidence and assertion:
Northern Gateway said about three-quarters of construction employment would occur in British Columbia, and the province would get the largest share of direct benefits from continuing operations.
It does touch on the “burdens” faced by the Aboriginal people of northern BC and others in the event of a catastrophic spill.
In the unlikely event of a large oil spill, we found that there would be significant adverse effects on lands, waters, or resources used by Aboriginal groups. We found that these adverse effects would not be permanent and widespread. We recognize that reduced or interrupted access to lands, waters, or resources used by Aboriginal groups, including for country foods, may result in disruptions in the ability of Aboriginal groups to practice their traditional activities. We recognize that such an event would place burdens and challenges on affected Aboriginal groups. We find that such interruptions would be temporary. We also recognize that, during recovery from a spill, users of lands, waters, or resources may experience disruptions and possible changes in access or use.
And the JRP goes on to say:
We recommend approval of the Enbridge Northern Gateway Project, subject to the 209 conditions set out in Volume 2 of our report. We have concluded that the project would be in the public interest. We find that the project’s potential benefits for Canada and Canadians outweigh the potential burdens and risks….
We are of the view that opening Pacific Basin markets is important to the Canadian economy and society. Societal and economic benefits can be expected from the project. We find that the environmental burdens associated with project construction and routine operation can generally be effectively mitigated. Some environmental burdens may not be fully mitigated in spite of reasonable best efforts and techniques…. We acknowledge that this project may require some people and local communities to adapt to temporary disruptions during construction.
As for the chance of a major oil spill, again the JRP talks about burdens:
The environmental, societal, and economic burdens of a large oil spill, while unlikely and not permanent, would be significant. Through our conditions we require Northern Gateway to implement appropriate and effective spill prevention measures and spill response capabilities, so that the likelihood and consequences of a large spill would be minimized.
It is our view that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions or accidents is very low.
We find that Canadians will be better off with this project than without it.
In the Joint Review ruling is one fact. Northern British Columbia must bear the “burden” of the Northern Gateway project for the good of Alberta and the rest of Canada. The JRP accepts, without much questioning, Northern Gateway’s assurances that environmental disruptions during construction will be minimal and that the chances of a major spill from either a pipeline or a tanker are minimal.
Canadians as a whole may be better off with the Northern Gateway. Whether the people who live along the pipeline and tanker route will be better off is another question, one which the Joint Review Panel dismisses with casual disdain.
The politics of the Joint Review Panel
There are actually two Joint Review Panel reports.
One is political, one is regulatory. The political decision by the three member panel, two from Alberta and one from Ontario, is that the concerns of northwestern British Columbia are fully met by Enbridge Northern Gateway’s assurances. There is a second political decision, found throughout both volumes of the report, and the reader sees the Joint Review Panel has the notion that many parts of the environment have already been degraded by previous human activity, and that means the construction and operation of the Northern Gateway will have little consequence.
Here is where the Joint Review Panel is blind to its own bias. With its mandate to rule on the Canadian “public interest,” the panel makes the political determination that, in the Canadian public interest, northwestern BC must bear the “burden” of the project, while other political issues were not considered because, apparently those issues were outside the JRP’s mandate.
…some people asked us to consider the “downstream” emissions that could arise from upgrading, refining, and diluted bitumen use in China and elsewhere. These effects were outside our jurisdiction, and we did not consider them. We did consider emissions arising from construction activities, pipeline operations, and the engines of tankers in Canadian territorial waters.
During our hearings and in written submissions, many people urged us to include assessment of matters that were beyond the scope of the project and outside our mandate set out in the Joint Review Panel Agreement. These issues included both “upstream” oil development effects and “downstream” refining and use of the products shipped on the pipelines and tankers…Many people said the project would lead to increased greenhouse gas emissions and other environmental and social effects from oil sands development. We did not consider that there was a sufficiently direct connection between the project and any particular existing or proposed oil sands development or other oil production activities
If someone in Northwestern British Columbia favours the Northern Gateway project, if they believe (and many people do) what Enbridge Northern Gateway says about the economic benefits, then it is likely they will accept the burden and the further environmental degradation imposed by the Joint Review Panel on this region of British Columbia.
If, on other hand, for those who are opposed to the project, then the decision to impose the burden on this region is both unreasonable and undemocratic (since no one in northern BC, in the energy friendly east or the environmental west has been formally asked to accept or reject the project). For those opposed to the project, the idea that since the environment has already been disrupted by earlier industrial development, that Canadians can continue to degrade the environment with no consequence will only fuel opposition to the project.
As for the assertion that green house gas emissions were not part of the Joint Review Panel’s mandate, that is mendacious. The panel made a political decision on the role of the people of northwestern BC and the state of northwestern BC’s environment. The panel made a political decision to avoid ruling on the role of Northern Gateway in contributing to climate change or the larger world wide economic impact of pipelines and the bitumen sands.
The Joint Review Panel is supposed to be a regulatory body and should be pipeline, terminal and tanker project go ahead after the expected court challenges from First Nations on rights, title and consultation and from the environmental groups, then those 209 conditions kick in.
While the Joint Review Panel largely accepts Enbridge Northern Gateway’s evidence with little questions, in some areas the panel does find flaws in what Northern Gateway planned. In a few instances, it actually accepts the recommendations from intervenors (many from First Nations, who while opposed to the project, successfully demanded route changes to through environmentally sensitive or culturally significant territory.)
When it comes to regulations, as opposed to politics, the Joint Review Panel has done its job and done it well. If all 209 conditions and the other suggestions found in the extensive second volume of the ruling are actually enforced then it is likely that the Northern Gateway will be the safe project that Enbridge says it will be and actually might meet BC Premier Christy Clark’s five conditions for heavy oil pipelines across BC and tankers off the BC coast.
But and there is a big but.
The question is, however, who is going to enforce the 209 conditions? In recent conversations on various social media, people who were quiet during the JRP hearings, have now come out in favour of the pipeline project. Read those comments and you will find that the vast majority of project supporters want those conditions strictly enforced. Long before the JRP findings and before Premier Christy Clark issued her five conditions, supporters of the Northern Gateway, speaking privately, often had their own list of a dozen or two dozen conditions for their support of the project.
The people of northwestern BC had already witnessed cuts to Fisheries and Oceans, Environment Canada and the Canadian Coast Guard in his region even before Stephen Harper got his majority government in May 2011.
Since the majority government Harper has cut millions of dollars from the budgets for environmental studies, monitoring and enforcement. The Joint Review Panel began its work under the stringent rules of the former Fisheries Act and the Navigable Waters Act, both of which were gutted in the Harper government’s omnibus bills. Government scientists have been muzzled and, if allowed to speak, can only speak through departmental spin doctors. The Joint Review Panel requires Enbridge Northern Gateway to file hundreds of reports on the progress of surveying, environmental studies, safety studies, construction plans and activities and project operations. What is going to happen to those reports? Will they be acted on, or just filed in a filing cabinet, perhaps posted on an obscure and hard to find location on the NEB website and then forgotten?
Will the National Energy Board have the staff and the expertise to enforce the 209 conditions? Will there be any staff left at Environment Canada, Transport Canada, Fisheries and Oceans and the Canadian Coast Guard where the conditions demand active participation by government agencies, or ongoing consultation between federal agencies and Northern Gateway? Will there actual be monitoring, participation and consultation between the project and the civil service, or will those activities amount to nothing more than meetings every six months or so, when reports are exchanged and then forgotten? Although Stephen Harper and his government say the Northern Gateway is a priority for the government, the bigger priority is a balanced budget and it is likely there will be more cuts in the coming federal budget, not enhancements to environmental protection for northwestern BC.
The opponents of the project might reluctantly agree to the 209 conditions if Harper government forces the project to go ahead. It will be up to the supporters to decide whether or not they will continue their support of Northern Gateway if the 209 conditions are nothing more than a few pages of Adobe PDF and nothing more.