Haisla consultation reply outlines flaws in Northern Gateway Joint Review report

Haisla NationThe Haisla Nation response to the federal government’s request for consultation on the Joint Review Panel report on the Northern Gateway lists what the First Nation sees as flaws in the panel’s assessment of the project. (The Haisla filed their first list of flaws in the JRP in a court challenge).

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.

It says:

 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.


Ottawa’s Northern Gateway consultation with First Nations limited to three simple questions and 45 days: documents

Haisla ask cabinet to postpone Northern Gateway decision to allow for adequate consultation with First Nations

Haisla response lists evidence rejected by Northern Gateway Joint Review

Kinder Morgan files last minute objection to Joint Review’s proposed conditions for Northern Gateway

Kinder Morgan logoKinder Morgan has filed a last minute objection to the Northern Gateway Joint Review Panel’s preliminary conditions for the Enbridge project.

One of the objections from Kinder Morgan is the provision in the JRP’s proposed Gateway conditions for “purpose built tugs” to escort tankers (a measure that Enbridge has proposed for the Gateway project). Another provision Kinder Morgan objects to is “secondary containment facilities at marine terminals” likely to become an issue if the Vancouver terminal is expanded by Kinder Morgan.

Overall, Kinder Morgan warns that if the JRP imposes some of the proposed conditions on the Northern Gateway, it could adversely affect future pipeline projects in British Columbia.

As well, Kinder Morgan, it appears, is already concerned that if the proposed oversight of Northern Gateway goes ahead, the Kinder Morgan plan to twin the pipeline from Alberta to Vancouver and expand terminal operations in Vancouver could face ongoing scrutiny and possible delays.

The Kinder Morgan document, from the company’s Calgary lawyer, Shawn Denstedt, of Osler, Hoskins and Harcourt, filed May 31, appeared among all the final arguments filed on Friday by intervenors and governments to the Joint Review Panel on Northern Gateway.

Kinder Morgan’s letter to the JRP comes long after the final deadline for such comments.

Kinder Morgan is a registered intervenor in the Northern Gateway hearings, but has only filed four previous documents during the entire multi-year process. The company does not appear on the list of intervenors scheduled to appear for oral final arguments in Terrace beginning on June 17.

On April 12, 2013, the JRP issued a preliminary list of 199 conditions for the planning, construction and operation of the Northern Gateway project.

Now Kinder Morgan is worried. Denstedt’s letter notes:

we believe a number of the proposed conditions may have a material impact on pipeline and infrastructure development in Canada and consideration should be given to the conditions from this perspective.

Diplomatically, Denstedt goes on to tell the panel:

Our comments are intended to assist the JRP in understanding the potential outcomes of the proposed conditions if they become generally applicable to industry.

Commercial considerations

Under what Detstadt calls “Commercial considerations”, Kinder Morgan says “we observe that several of the proposed conditions are likely to affect the manner and risks involved in procuring pipeline facilities and services.

The list points to

Three layer composite coating or high performance composite coating is required for the entire pipeline although other pipeline coatings are commonly used in the pipeline industry depending upon ground conditions encountered
Complementary leak detection systems must be identified that can be practically deployed over extended distances of pipeline.

The construction of purpose-built tugs involves significant cost and lead time

A volume is prescribed for the secondary containment facilities at the marine terminal without reference to existing codes.

The letter goes on to say that if the conditions proposed by the JRP for the Northern Gateway come into effect, in Kinder Morgan’s opinion, it could adversely affect other pipeline projects in the future.

If broadly applied to industry, such conditions may limit the ability of pipeline companies to obtain competitive quotes because there are few sources of the required materials or services. The effect of conditions that require the use of a particular material or service may be to grant commercial benefits to certain suppliers through the regulatory process beyond the requirements of existing codes. Since several export pipelines are currently proposed, there will be a heightened demand for labour and materials in the coming years. The commercial effect of conditions that may exacerbate shortages of labour and materials should be a relevant consideration for the JRP.



One of Kinder Morgan’s objections is to the timing the JRP proposes for the Northern Gateway project if it applies to other pipelines.

Several of the proposed conditions contain NEB approval requirements and filings deadlines several years prior to operations. For example, plans related to the marine terminal and research programs must be filed for NEB approval three years prior to operations.

We are concerned that requiring reports to be filed for approval several years before operations can create significant schedule risks for infrastructure development projects. For example, a project with a two year construction schedule could take three years to complete with such conditions. Any changes to the construction schedule and anticipated date of operations would affect the filing deadline. Project proponents need sufficient schedule certainty in order to plan major expenditures on labour and materials.

To mitigate such risks, it is relevant for regulators to consider whether the filing deadlines and approval requirements prescribed in conditions could materially alter a project’s schedule. Filing deadlines should be set at a reasonable time before operations in order to minimize the risk that such deadlines materially affect the critical path for a project.

Many of the conditions require NEB approval, and in some cases the participation of other parties in the approval process, in order to be satisfied. Fulfillment of those conditions will require additional time, a Board process and potentially litigation. For example, certain reports must be filed with the NEB for approval prior to commencing construction activities. Other conditions require reports to be filed for approval by the NEB prior to construction with a summary of how concerns from other government agencies and Aboriginal groups were addressed.

So Kinder Morgan says:

In our view, conditions that require subsequent board approvals and that attract the potential for additional regulatory processes should be the exception and not a new standard or norm. There must be clear, well understood rationales given as to why additional approvals are in the public interest.

And so Kinder Morgan asks:

As an alternative, the NEB may utilize its existing powers and processes to ensure that when filings are made to satisfy imposed conditions an additional approval process is not required.

Overall the company sees the rules for Northern Gateway as a step back to the days before deregulation.

A number of the conditions may be interpreted as reflecting a return to a prescriptive approach to regulation. These conditions prescribe detailed audit requirements instead of setting a goal oriented approach to allow the proponent flexibility in mitigating any adverse effects. Such conditions tend to focus on operational aspects that are covered by existing codes and regulations rather than setting goals for the proponent to mitigate any significant adverse effects.

Denstedt, again diplomatically, concludes by saying:

Kinder Morgan wishes to thank the JRP for the opportunity to present these high level perspectives regarding its proposed conditions. Our comments are intended to ensure that the wider implications of the proposed conditions on the pipeline industry and infrastructure development are given appropriate consideration in the deliberations and final recommendations of the JRP.

Kinder Morgan letter to JRP

EPA Orders Enbridge to Perform Additional Dredging to Remove Oil from Kalamazoo River

The United States Environmental Protection Agency has ordered Enbridge to dredge the Kalamazoo River to remove addition bitumen.

The EPA issued this news release

CHICAGO (March 14, 2013) – The U.S. Environmental Protection Agency today issued an administrative order that requires Enbridge to do additional dredging in Michigan’s Kalamazoo River to clean up oil from the company’s July 2010 pipeline spill. EPA’s order requires dredging in sections of the river above Ceresco Dam, upstream of Battle Creek, and in the Morrow Lake Delta.

EPA has repeatedly documented the presence of recoverable submerged oil in the sections of the river identified in the order and has determined that submerged oil in these areas can be recovered by dredging. The dredging activity required by EPA’s order will prevent submerged oil from migrating to downstream areas where it will be more difficult or impossible to recover.

Enbridge has five days to respond to the order and 15 days to provide EPA with a work plan. Dredging is anticipated to begin this spring and is not expected to result in closures of the river. EPA’s order also requires Enbridge to maintain sediment traps throughout the river to capture oil outside the dredge areas.

On July 26, 2010, Enbridge reported that a 30-inch oil pipeline ruptured near Marshall, Michigan. Heavy rains caused the spilled oil to travel 35 miles downstream before it was contained.


PART THREE: Keystone EIS looks in-depth at the railway to Prince Rupert option for bitumen and crude

There have always been commentators who believe that if the Northern Gateway Pipeline is rejected by the Joint Review Panel or stopped by other means, that the bitumen from Alberta should be carried by rail to Prince Rupert.

A pipeline to Prince Rupert has already been rejected by Enbridge as impractical given the mountainous terrain and the narrow footprint along the Skeena River from Terrace to Prince Rupert.

That means taking bitumen by rail to Prince Rupert has not been seriously studied—until now.

The State Department Environmental Impact Study (EIS) on the controversial Keystone XL pipeline from Alberta to the US Gulf, does give serious consideration to the rail to Rupert option.

That’s because under its mandate the State Department had to consider alternatives to Keystone. The detailed look at carrying crude to the west coast is contained in the “No Action Alternatives” section of the Keystone report (that is telling President Barack Obama what might happen if he takes no action on Keystone)

The EIS took a brief look at the possibilities of rail to Kitmat, but concentrates mostly on Prince Rupert.

As for sending bitumen to the Gulf,via rail and tanker, the Keystone report concludes, as have most analysts that even if bitumen was shipped by rail to Prince Rupert, it would be cheaper to send it to markets in Asia than through the Panama Canal to the US Gulf Coast.

If pipelines to the Canadian West coast are not expanded or approved, even incurring the additional cost of rail transport to the West Coast ports (Vancouver, Kitimat, or Prince Rupert), estimated at $6 per barrel, results in a total transport cost to Asia that is still 40 percent cheaper than going via the Gulf Coast.

Absent a complete block on crude oil exports from the Canadian West Coast, there would belittle economic incentive to use the proposed project as a pass through. The high costs of onward transport to other potential destinations tend to mitigate against WCSB [Western Canada Sedimentary Basin] heavy/oil sands crudes being exported in volume from the Gulf Coast.

As an alternative to Keystone, the State Department examined a scenario where bitumen and possibly Bakken shale crude oil would be:

• Loaded onto rail in Lloydminster and transported to Prince Rupert, British Columbia;

• Transferred to a new/expanded marine terminal at Prince Rupert; and

• Shipped via Suezmax vessels to the Gulf Coast area (Houston/Port Arthur) through the Panama Canal.

If the tanker cars are hauling bitumen, they would be actually loading “railbit” which the report says is “similar to dilbit but with less diluent added” (Dilbit is the standard diluted bitumen in pipelines) There is also, according to the EIS, a possibility that the tank cars would carry raw bitumen without dilutent (although this requires insulated rail cars with steam coils)

New facilities in Prince Rupert would consist of a large rail terminal complex, most likely on themainland, where off-loaded crude oil would be stored until it could be loaded onto tankers, and an expanded port. The entire facility would cover 4,700 acres (1,900 hectares), including 3,500 acres (1,400 hectares) for storage and off-loading/on-loading facilities at the rail terminal and approximately 1,200 acres (487 hectares) of land at the expanded port.

The new tank terminal construction would consist of the following:

• Fourteen petroleum storage tanks (11 oil and three condensate);

• A security fence to encompass the tank terminal;

• A 180-foot-wide (55 metre) firebreak area around the outside perimeter of the terminal;

• Electrical supply and distribution (this terminal would be serviced by the Texada Island

Reactor substation); and

• Buildings (control center and civil infrastructure including roads).

Related Link Prince Rupert Port Authority Performance Report


The scenario calls for adding approximately 13 trains with 100 tanker cars per day on the 1,100 miles (1,770 kilometres) of CN and Canadian Pacific rail lines between Lloydminster and Prince Rupert.

(On the other hand, media mogul David Black who has proposed a refinery at Onion Flats half way between Kitimat and Terrace is considering a rail link to Kitimat if the Northern Gateway pipeline is stopped. Black estimates there would be six trains per day, 120 cars in each direction. While there is usually only one train a day to Kitimat or less, that idea would increase traffic along the Skeena and in his news release Black says 

If BC remains set against a pipeline the oil will come to the refinery by rail. CN and the oil companies are keen on this. A great deal of crude in North America is being moved by rail now. The costs are not that different in this case and no permits are required. Rail tankering is, however, not as safe and it is more disruptive. Small towns along the route with level crossings would rue having 12 more trains running through every day.

The State Department scenario says that if the Prince Rupert option actually happened there would be “one to two additional Suezmax tanker vessels per day (430 tankers per year) would travel between Prince Rupert and the Gulf Coast area refinery ports via the Panama Canal.”

The concept of the Suezmax tankers is critical to the west coast, even if none of the scenarios eventually happen, because the State Department report notes that the Panama Canal is now being expanded, so that larger ships, including tankers, can go through the canal after 2014.

The current size is Panamax (maximum size for the current Panama Canal) to Suezmax (the maximum size for the Suez Canal), and, according to the State Department that means even if the even bigger Very Large Crude Carriers are not calling at west coast ports, the newer, larger Suezmax tankers may  be.

It should be noted, however, that if WCSB crude oil reaches a Pacific port, regardless of whether by rail or by pipeline, the economics for movement via tanker would favor shipping the oil to Asia rather than the Gulf Coast area. The cost of transporting crude oil via tanker from Prince Rupert to Houston and Port Arthur is estimated to be approximately $4.70/bbl, whereas the transport cost via tanker from Prince Rupert to refinery ports in Asia (e.g., Ulsan, South Korea and Dalian, China), is estimated to be only approximately $1.70 and $2.00/bbl, respectively. The lower transport cost to Asia versus the Gulf Coast area is attributable to shorter trip duration (30 to 37 days to Asia versus about 45 days to the Gulf Coast area), avoiding the Panama Canal toll(about $0.70/bbl), and being able to use a larger tanker because it would not be constrained by the Panama Canal (a VLCC tanker to China would have a capacity of almost 2 million bbl versus a Suezmax tanker to the Gulf Coast area with a capacity of about 884,000 bbl).

So what would happen if there was a scheme to truck bitumen and crude to Prince Rupert and ship via the Panama Canal to the Gulf?

The State Department EIS says:

 the transport of the crude oil via tankers from Prince Rupert to the Gulf Coast area refineries would not have any effects on geology, soils, groundwater, wetlands, vegetation, land use, socioeconomics, noise, or cultural resources, other than in the event of a spill.

It goes on to note:

The Gulf Coast area refineries already receive crude oil shipments via tankers from Mexico, Venezuela, and other locations; the Rail/Tanker Scenario is expected to simply displace these sources of crude oil with WCSB crude oil. Therefore, no new construction or new operational impacts are expected to occur as a result of this scenario at the Gulf Coast area refineries or surrounding habitats or communities.

In its study of a possible expanded Prince Rupert terminal that would welcome tankers, the State Department says:

The proposed Northern Gateway terminal at Kitimat, British Columbia was used as a surrogateto estimate the marine facilities needed at Prince Rupert. The Northern Gateway facility isdesigned to handle about 525,000 bpd of crude delivered by pipeline for loading on vessels to theWest Coast and Asia. In addition, it is designed to receive about 193,000 bpd of diluent (a verylight oil obtained from natural gas production) from cargoes arriving by water and discharging into storage at the terminal and moving back to Alberta via a parallel pipeline. The total volumeof about 718,000 bpd approximates the volume of WCSB heavy crude oil that would be loaded at Prince Rupert.



More Details:
Northwest Coast Energy News Special report links

What the Keystone Report says about Kitimat and Northern Gateway
What the Keystone Report says about the Kinder Morgan pipeline to Vancouver.
What the Keystone Report says about CN rail carrying crude and bitumen to Prince Rupert.
The State Department Environmental Impact Study of the railway to Prince Rupert scenario.

State Department news release

State Department Index to Supplemental Environmental Impact Study on the Keystone XL pipeline


PART FOUR: State Department assessment of the railway to Rupert route for bitumen

Here are edited portions of the EIS assessment for a major oil terminal at Prince Rupert

Environmental Setting

The EIS says “the local surface geology at the Prince Rupert site consists of bedrock (granitic rocks) overlain by glacial outwash and a thin soil cover.” and goes on to note that “Prince Rupert is located along the coastal region of Canada, which is seismically active.”

Potential Impacts

At Prince Rupert, depth to bedrock is expected to be relatively shallow, so rock ripping and some blasting could be necessary. The impacts of rock ripping and blasting are limited to the immediate area and would not result in any significant impacts to the underlying or nearby geology. Excavation activities, erosion of fossil beds exposed due to grading, and unauthorized collection can damage or destroy paleontological resources during construction.

(The report notes that The potential for finding paleontological resources in the areas that would be disturbed is unknown. But the area of the coast has been heavily metamorphisized and most fossils, so far, have been found further inland, largely along the Copper River near Terrace)

In terms of geologic hazards, the Prince Rupert terminals would be located along the coastal region of Canada, which is seismically active. In addition, the presence of steep slopes increases the risk of landslides and the port’s coastal location increases the risk of flooding…. The Prince Rupert rail terminals and port facilities would be designed to withstand potential seismic hazards and flooding…

Construction of the proposed terminals and port expansion in Prince Rupert would result in the disturbance of approximately 3,500 acres (1,400 hectares) of land for the construction of the rail terminal complex and approximately 1,200 acres (487 hectares) for the expansion of the port. Potential impacts to the soils resources of the area could result from vegetation clearance, landscape grading, and recontouring to ensure proper drainage, the installation of storm water drainage systems, construction of the required infrastructure, and other construction activities.
One of the primary concerns during construction activities is soil erosion and sedimentation.
Potential impacts to soils from erosion are expected to occur in areas where the slopes are greater than 20 per cent and where the erosion potential due to their nature is high. Based on available landscape and soils information, the soils found in the area are not highly erodible and the required infrastructure would be located in areas that are relatively flat. Therefore, the impact of the proposed terminal complex and port construction activities on soil erosion would be minor.


Environmental Setting

The Prince Rupert Terminals and port expansion would occur in British Columbia on Kaien Island, which receives about 102 inches of rainfall per year. The terminals would be located on an inlet that is part of the eastern Pacific Ocean on the Venn Passage near the much larger Inland Passage, which extends from Washington State to Alaska along the islands and mainland of British Columbia, Canada. Venn and Inland Passages are marine (salt water) waterbodies. The islands consist of bedrock (granitic rocks) overlain by glacial outwash and a thin soil cover.
Groundwater is shallow, poor quality, and unused. Drinking water is derived from lakes on the mainland. Water quality in the terminal complex area is seawater and inland brackish.

Potential Impacts

During construction of the facilities at Prince Rupert, the primary potential impacts to groundwater would be spills or leaks from construction equipment. Mitigation for these impacts includes having in place appropriate plans in place and appropriate cleanup materials available.
During operations of the facilities at Prince Rupert, the primary potential impacts to groundwater would again most likely be spills or leaks from operation equipment or associated with crude oil unloading of railcars. Although the initial impacts of potential releases or spills may be contained or limited to soil, potential impacts to groundwater may occur depending on the depth to groundwater, soil characteristics (e.g., porosity, permeability), spill volume and extent, and whether the spill reaches surface water bodies, some of which are interconnected to groundwater.

Surface Water
Environmental Setting

The upland character surrounding the potential Prince Rupert terminal area is dominated by bog forest uplands and the flowing surface water bodies are predominantly precipitation- and shallow groundwater-fed intermittent streams. Some open waterbodies are present in the southeast portion of Kaien Island. Tidal shore zones are of a rugged and rocky nature and receive wave energy generated by naturally occurring fetch and large wakes from marine traffic. Winter winds are strong and from the southeast to southwest, with surface currents predominantly northward from the Hecate Strait. Lighter summer winds have less influence on currents and allow freshwater runoff from land and deep water tidal effects to exert more control and provide variation in summer current patterns. Significant wind and tidal mixing tend to occur where waters are shallow and around islands and rocky points of land. The coastal landscape is predominantly fjords carved into the granitic Coast Mountains, created by the last of several glacial periods approximately 12,000 years ago. Shores tend to be rocky and steep with beaches restricted to sheltered areas adjacent to estuaries and the navigable straits and channels provide a wide variety of exposures and habitats.

Potential Impacts

Construction of the facilities at Prince Rupert would disturb approximately 4,700 acres. The primary potential impacts to surface waters include erosion and sedimentation and spills/leaks of hazardous materials. Mitigation for these impacts includes having in place appropriate SPCC plans in place and appropriate cleanup materials available.
During operations, the primary potential impacts to surface waters include storm water runoff, spills, or leaks from operation equipment or associated with crude oil unloading of railcars.
Provision of storm water management measures would mitigate the impacts of stormwater runoff.

Terrestrial Vegetation
Environmental Setting

The Prince Rupert terminals and port facilities would be located in the Coastal Gap Level III Ecoregion. The vegetation immediately adjacent to the Pacific Ocean includes stunted, opengrowing western red cedar, yellow cedar, and western hemlock with some stunted shore pine and Sitka spruce . There are also open areas present within the affected areas. It is unclear if biologically unique landscapes or vegetation communities of concern exist within the proposed Prince Rupert terminal complex boundary.

Potential Impacts

The proposed rail terminal complex and port facilities at Prince Rupert would require the clearing of up to 4,700 acres of natural vegetation, most of which is forested based on aerial photo interpretation. There does not appear to be any biologically unique landscapes or communities of conservation concern within the terminal complex boundary. Nearly all of these impacts would be permanent as natural habitats are converted for use as rail terminals and port facilities.

Environmental Setting

Many wildlife species use this coastal area for hunting, foraging, roosting, breeding, and nesting (Tourism Prince Rupert 2012). Wildlife characteristic of this ecoregion include grizzly bear (Ursus arctos horribilis), black bear (Ursus americanus), mountain goat (Oreamnos americanus), black-tailed deer (Odocoileus hemionus
columbianus), wolf (Canis lupus), moose (Alces alces), mink (Mustela sp.), bald eagle
(Haliaeetus leucocephalus), seabirds, shorebirds, waterfowl, and grouse (Tetraoninae)
The Prince Rupert terminal complex would be located in the Northern Pacific Rainforest(Region 5) bird conservation region, which is an ecologically distinct region in North America…

The coast of the Northern Pacific Rainforest is characterized by river deltas
and pockets of estuarine and freshwater wetlands set within steep, rocky shorelines. These wetlands provide critical nesting, wintering, and migration habitat for internationally significant populations of waterfowl and other wetland-dependent species. The area includes major stopover sites for migrating shorebirds, especially western sandpipers (Calidris mauri) and dunlins (Calidris alpina). Black oystercatchers (Haematopus bachmani), rock sandpipers (Calidris
ptilocnemis), black turnstones (Arenaria melanocephala), and surfbirds (Aphriza virgata) are common wintering species. Nearshore marine areas support many nesting and wintering sea ducks. Many seabirds breed on offshore islands, including important populations of ancient murrelet (Synthliboramphus antiquus), rhinoceros auklet (Cerorhinca monocerata), tufted puffin (Fratercula cirrhata), common murre (Uria aalge), western gull (Larus occidentalis), glaucouswinged gull (Larus glaucescens), and Leach’s storm-petrel (Oceanodroma leucorhoa). Pelagic
waters provide habitat for large numbers of shearwaters (Calonectris spp. and Puffinus spp.), storm-petrels (Hydrobatidae), and black-footed albatross (Phoebastria nigripes)

Potential Impacts

Direct impacts could occur due to vegetation removal or conversion, obstructions to movement patterns, or the removal of native habitats that may be used for foraging, nesting, roosting, or other wildlife uses (Barber et al. 2010). Indirect impacts to wildlife are difficult to quantify and are dependent on the sensitivity of the species, individual, type and timing of activity, physical parameters (e.g., cover, climate, and topography), and seasonal use patterns of the species (Berger 2004). Most of these impacts would be essentially permanent.

Environmental Setting

Prince Rupert is an important deepwater port and transportation hub of the northern coast of British Columbia. It is located on the northwest shore of Kaien Island, which is connected to the mainland by a short bridge. The town of Prince Rupert is just north of the mouth of the Skeena River, a major salmon-producing river. Key commercial fisheries include Pacific salmon, halibut, herring, and groundfish, which are processed from Prince Rupert.

Prince Rupert area supports a high density of streams and rivers that host an array of valuable recreational fisheries for salmon, steelhead (anadromous rainbow trout), rainbow trout, lake trout, cutthroat trout, char, Arctic grayling, and northern pike .

Potential Impacts

New impacts to commercial and recreational fisheries’ habitats from the construction and operation of the facilities in Prince Rupert could include marine intertidal zones as well as fish spawning zones (e.g., herring), if present. There would likely be short-term impacts to the benthic (bottom dwelling) community during construction of the berths and mooring facilities. Bottom-dwelling
fish (i.e., halibut, flounder, and rockfish) and marine invertebrates (i.e., clams, mussels, crabs, and other bivalves and crustaceans) could potentially be impacted during construction as well, but these affects are expected to be minor and temporary or short-term in duration.

Additional shipping traffic would increase underwater sound because large vessels, including tankers, put out relatively high noise levels. Fish and other aquatic organisms (including invertebrates and marine mammals) use sound as a means of communication and detection within the marine acoustic environment. Increased shipping traffic could mask natural sounds by increasing the ambient noise environment from Prince Rupert Harbor and along the marine route to the Gulf Coast area. Long-lasting sounds, such as those caused by continuous ship operation, can cause a general increase in background noise and there is a risk that such sounds, while not causing immediate injury, could mask biologically important sounds, cause hearing loss in affected organisms, and/or have an impact on stress levels and on the immune systems of aquatic species.

Exotic and invasive species are sometimes transferred in the ballast water of tanker ships.
Monitoring and controls would need to be implemented to treat ballast water discharged into Prince Rupert Harbor such that invasive or exotic species would not be released into the marine environment.

Threatened and Endangered Species

This section focuses on animal and plant species present in the Prince Rupert area that are Canada SARA protected. As a coastal area along the Pacific Migratory Bird Route, and an area that receives a lot of precipitation and is heavily forested, many wildlife species inhabit the area, as discussed in Section, Wildlife. According to the British Columbia (B.C.) Conservation Data Centre (2012), only one SARA threatened/endangered species is known to occur in Prince Rupert—the green sturgeon (Acipenser medirostris), a Pacific Ocean inhabitant. In addition, several SARA special concern species occur in Prince Rupert, including western toad (Anaxyrus boreas), coastal tailed frog (Ascaphus truei), North American racer (Coluber constrictor), grey whale (Eschrichtius robustus), and Stellar sea lion (Eumetopias jubatus)

Potential Impacts

The green sturgeon is typically found along nearshore marine waters, but is also commonly observed in bays and estuaries. The expansion of the proposed port facility could have minor adverse effects on the green sturgeon, but the sturgeon could readily avoid the port area.
Increased shipping traffic at Prince Rupert and as the vessels transit to the Gulf Coast area refineries may affect the feeding success of marine mammals (including threatened and endangered species) through disturbance, because the noise generated by tankers could reduce the effectiveness of echolocation used by marine mammals to forage for food. Whales use underwater vocalizations to communicate between individuals while hunting and while engaged in other behaviors. Increased underwater noise from additional shipping traffic could disrupt these vocalizations and alter the behavior of pods of whales. Moreover, additional boat and
tanker traffic could also increase the potential for collisions between marine mammals and shipping vessels. These effects would be additive in nature and could potentially add to existing disturbance effects and collision risks caused by the current level of shipping traffic, commercial and recreational fishing, and cruise ship passage.

Land Use, Recreation, and Visual Resources
Environmental Setting

Land use, recreation, and visual resources for the Prince Rupert area where the new terminals and expanded port facilities would be built differ sharply from the other terminal sites. Prince Rupert is located on an inlet of the Pacific Ocean in a heavily forested area of British Columbia.
Urban land use is generally limited to the communities in and around the city of Prince Rupert, with some small outlying communities and villages in the area. Given Prince Rupert’s role as a terminus of the Alaska Ferry System, many people see the port and surrounding areas in a recreational context. The area is largely undeveloped and would be sensitive to changes in the visual landscape.

Potential Impacts

If constructed on previously undeveloped land, the new facilities would primarily impact mixed forest… The construction and operational impacts on land use, recreation, and visual resources at the Lloydminster, Epping, and Stroud terminal complex sites and along the Cushing pipeline route would be the same as for the Rail/Pipeline Scenario.

Environmental Setting


Construction and operations activities are not expected to have a significant effect on population and housing for this scenario. Because construction and operations job estimates have not yet been determined for this scenario, worker requirements for Prince Rupert, Lloydminster, and Epping are assumed to be minor..additional temporary housing could be needed in Prince Rupert… Prince Rupert only has about 740 hotel/motel rooms

Local Economic Activity

Tanker infrastructure and operations would be affected as ships transport crude oil from Prince Rupert through the Panama Canal to Texas ports near Houston.

Direct construction expenditures for facilities at Prince Rupert would be approximately $700 million, with approximately 1,400 annual construction jobs, based on the cost estimates of the proposed Enbridge Northern Gateway marine terminal in Kitimat

Despite the large population of First Nations people in the Prince Rupert area, Canada does not have a similar definition to minorities as the Keystone report applied under US law and so it notes “Impacts to minority and low-income populations during construction and would be similar to those described for the proposed [Keystone] Project and could possibly result in increased competition for medical or health services in underserved populations. Canada does not define HPSA and MUA/P, so it is unknown whether or not the minority populations in Prince Rupert or Lloydminster exist in a medically underserved area.

Tax Revenues and Property Values

It says construction of a new terminal Prince Rupert would generate provincial sales taxes, goods and services taxes, and hotel taxes. Construction of the tank and marine terminals at Prince Rupert…would involve large numbers of road trips by heavy trucks to transport construction materials and equipment to and from the sites. Construction in Prince Rupert could also potentially involve vessel deliveries of material. This traffic could cause congestion on major roadways, and would likely require temporary traffic management solutions such as police escorts for oversize vehicles.

Cultural Resources

Despite the rich heritage of First Nations in the Prince Rupert area, the Keystone alternative study reported;

No cultural resources studies have been conducted for the Prince Rupert area. Review of aerial photographs shows that a small portion of the area that could potentially be developed has already been disturbed by development, including port facilities, structures, and roads. This preliminary review shows that most of the area appears undeveloped and would have the potential for intact buried cultural resources.

The report notes that “Any ground disturbance, especially of previously undisturbed ground, could potentially directly impact cultural resources.”

It goes on to note that the potential to

include intact buried cultural resources would require evaluation through research and cultural resources surveys. If cultural resources were identified, follow-up studies could be required. In general terms, the archaeological potential of heavily disturbed areas, such as might be found in active rail yards or within developed transportation corridors, is normally lower than in undisturbed areas.

Archaeological potential is also contingent upon factors such as access to water, soil type, and topography, and would have to be evaluated for each area to be disturbed. Aboveground facilities have the potential to indirectly impact cultural resources from which they may be visible or audible. The potential for increased rail traffic to contribute to indirect impacts would require consideration.

Air and Noise

The report also summarizes the possible green house gas emissions for the rail and tanker project as whole from Prince Rupert to the Gulf Coast refineres and notes that overall

On an aggregate basis, criteria pollutant emissions, direct and indirect GHG emissions, and noise levels during the operation phase for this scenario would be significantly higher than that of the proposed [Keystone XL] Project mainly due to the increased regular operation of railcars, tankers, and new rail and marine terminals.

Air Quality

The rail cars and tankers transporting the crudes would consume large amounts of diesel fuel and fuel oil each day….The criteria pollutant emissions would
vary by transportation segment, particularly during marine-based transit. Oil tankers traveling from the Prince Rupert marine terminal through the Panama Canal to Houston/Port Arthur pass through several different operational zones, including reduced speed zones leading into and out of the ports, North American Emission Control Areas where the use of low-sulfur marine fuel is mandated, and offshore areas where the tankers travel at cruise speeds.

During the return trip, tankers are filled with seawater (ballast) to achieve buoyancy necessary for proper operation, which affects the transit speeds of the vessel. Furthermore, the tankers spend several days loading or unloading cargo at each marine terminal with auxiliary engines running (an activity called hoteling). The tanker emissions accounted for return trips (i.e., both loaded cargo going south and unloaded cargo going north).

In aggregate, the total operational emissions (tons) estimated over the life of the project (50 years) are several times greater than those associated with the combined construction and operation of the proposed Keyston XL Project

Greenhouse Gases

Direct emissions of GHGs would occur during the construction and operation of the Rail/Tanker Scenario. GHGs would be emitted during the construction phase from several sources or activities, such as clearing and open burning of vegetation during site preparation, operation of on-road vehicles transporting construction materials, and operation of construction equipment for the new pipeline, rail segments, multiple rail and marine terminals, and fuel storage tanks.

Due to limited activity data, GHG emissions from construction of the Rail/Tanker Scenario were not quantified; however, these emissions would occur over a short-term and temporary period, so construction GHG impacts are expected to be comparable to the proposed [Keystone XL] Project.
During operation of the railcars and tankers that comprise this scenario, GHGs would be emitted directly from the combustion of diesel fuel in railcars traveling over 4,800 miles (7,725 km) and fuel oil in marine tankers traveling over 13,600 miles (21,887 km) round-trip.

The Rail/Tanker Scenario would also result in indirect emissions of GHGs due to the operation of 16 new rail terminals, an expanded port, and potential pumping stations. The new rail terminal in Prince Rupert would be projected to require 5 MW of electric power to operate, possibly bring indirect GHG emissions


Noise would be generated during the construction and operation of the Rail/Tanker Scenario. Noise would be generated during the construction phase from the use of heavy construction equipment and vehicles for the new pipeline, rail segments, and multiple rail and marine terminals, and fuel storage tanks. Due to limited activity/design data, noise levels from the construction of this scenario were not quantified; however, this noise would occur over a short term and temporary period, so construction noise impacts are expected to be comparable to those
of the proposed Project. During operation of the railcars and tanker ships that comprise this scenario, noise would be generated from the locomotives, movement of freight cars and wheels making contact with the rails as the train passes, train horns, warning bells (crossing signals) at street crossings, and tanker engines during hoteling and maneuverings at the new rail and marine terminals in Prince Rupert.

(Noise from ocean going vessels which is a concern for coastal First Nations and environmental groups is covered later on impact on wildlife)


Climate Change Effects on the Scenario
Environmental Setting

The Keystone study looks at the affects of climate change, but concentrates largely on the Gulf Coast beause the most of the Rail/Tanker Scenario was outside of the boundaries of the study, but it does note that the sea levels are projected to rise due to glacial melting and thermal expansion of the water. The rate, total increase, and likelihood of the rise is in part dependent on how rapid the ice sheets warm and is a source of ongoing scientific uncertainty.

The United States Global Change Research Program (USGCRP) estimates that sea level rise could be between 3 to 4 feet by the end of the century.

Increasing sea level projected due to climate changes as described above shifts the impact of mean high tide, storm surge, and saltwater intrusion to occur further inland and this would negatively affect reliable operation of the port infrastrucure for tanker traffic. Mitigation of these climate effects could be addressed by making engineering and operational changes at the port.

Potential Risk and Safety
Environmental Setting

The Rail/Tanker Option would combine the risk inherent in both pipeline and oil tanker
transport. However, the risks and consequences for using oil tankers to transport the hazardous materials are potentially greater than the proposed Project. Overall, crude oil transportation via oil tankers has historically had a higher safety incident rate than pipelines for fire/explosion, injuries, and deaths.

Spills have been reported while the vessel is loading, unloading, bunkering, or engaged in other operations

The main causes of oil tanker spills are the following:
• Collisions: impact of the vessel with objects at sea, including other vessels (allision);
• Equipment failure: vessel system component fault or malfunction that originated the release of crude oil;
• Fires and explosions: combustion of the flammable cargo transported onboard;
• Groundings: running ashore of the vessel; and
• Hull failures: loss of mechanical integrity of the external shell of the vessel.

From 1970 to 2011, historical data shows that collisions and groundings were the maincauses of oil tanker spills worldwide.

Potential Impacts

Loading and unloading of the railcars at tank farms near seaports could allow spills to migrate and impact seawaters and shorelines.

However, the loading and unloading are generally carried out under supervision and would be addressed promptly by the operators, limiting the potential migration and impacts of the spill to the immediate area.

Once the tanker is loaded and at sea, the propagation and impacts of a spill could become significant. Oil tankers may carry up to 2,000,000 bbl of oil

A release of oil at sea would be influenced by wind, waves, and current. Depending on the volume of the release, the spreading of oil on the surface could impact many square miles of ocean and oil birds, fish, whales, and other mammals and could eventually impact shorelines. Oil would also mix with particulates in sea water and degrade. As this occurs some oil will begin to sink and either be retained in the water column (pelagic) or settle to the ocean floor (sessile).

Pelagic oil could be consumed by fish or oil fauna passing though the submerged oil. Sessile oil could mix with bottom sediment and potentially consumed by bottom feeding fauna. Spills in ports-of-call could affect receptors similar to an open ocean release but also could temporarily affect vessel traffic and close ports for cleanup activities.

The identification of key receptors along the rail route alternative was not available for this evaluation. Therefore a comparison to the proposed project was not completed.

Surface Water

The Lloydminster to Prince Rupert portion of this route would begin in the western plains at the Saskatchewan/British Columbia border and travel west through an area of high-relief mountains with large valleys, referred to as the Cordillera region. From a water resource perspective, the plains region of Canada is characterized by relatively large rivers with low gradients. The plains rivers drain the Rocky Mountains to the Arctic Ocean. The Cordillera region is largely composed of northwest-southwest trending mountain ranges that intercept large volumes of Pacific
moisture traveling from the west towards the east. River systems in this region are supplied by a combination of seasonal rainfall, permanent snowfields, and glaciers.

The following are larger rivers crossed by the existing rail lines between Lloydminster and Prince Rupert:

• North Saskatchewan River, Alberta
• Pembina River, Alberta
• McLeod River, Alberta
• Fraser River, British Columbia
• Nechako River, British Columbia
• Skeena River, British Columbia


Spills within wetlands would most likely be localized, unless they were to occur in open, flowing water conditions such as a river or in the ocean. A crude oil spill in a wetland could affect vegetation, soils, and hydrology. The magnitude of impact would depend on numerous factors including but not limited to the volume of spill, location of spill, wetland type (i.e., tidal versus wet meadow wetland), time of year, and spill response effectiveness. The construction of additional passing lanes to accommodate increased train traffic resulting from this scenario could
result in permanent impacts to wetlands if passing lanes were constructed where wetlands occur.
However, as there is some leeway regarding the exact location of the passing lanes, it is expected that wetlands would be avoided by design.


The Rail/Tanker Scenario railroad route would cross numerous major streams and rivers in Canada, many of which support anadromous fish species such as salmon.

Anadromous species are those that spawn and rear in freshwater but migrate to the ocean at a certain size and age. Pacific salmon are large anadromous fish that support valuable commercial and recreational fisheries. Commercial fisheries for salmon occur in marine water and most recreational fishing for salmon occurs in freshwater. Salmon eggs are vulnerable to the effects of fine sediment deposition because female salmon deposit their eggs in stream bed gravels.

Despite this vulnerability, the overland railway route is not expected to present any new impacts to salmon unless there is a spill into its habitat, although the risk of spills does increase under this scenario due to the increase in the number of trains that would use the route.

Potential new impacts under the Rail/Tanker Scenario on commercially or recreationally significant fisheries along the route would be minor because the railroads that would be used are already built and in operation. However, the risk of an oil spill or release of oil or other materials still exists. The tanker portion of this route scenario is also subject to oil spill risk.

Threatened and Endangered Species

The rail route would cross over the Rocky Mountain region of western Alberta, which is inhabited by species such as the woodland caribou (Rangifer tarandus) (a SARA threatened species) and grizzly bear (a SARA special concern species). This region of British Columbia is home to a number of SARA threatened/endangered species, including the peregrine falcon (Falco peregrinus anatum) (SARA threatened), salish sucker (Catostomus sp.) (SARA endangered), white sturgeon (Acipenser transmontanus) (SARA endangered), caribou (southern mountain population) (SARA threatened), northern goshawk (Accipiter gentilis laingi) (SARA threatened), and Haller’s apple moss (Bartramia halleriana) (SARA threatened).

A number of additional SARA special concern species inhabit the regions of Canada that would be traversed by the Rail/Tanker Scenario, including but not limited to those special concern species expected to occur in the Prince Rupert region, and discussed above (B.C. Conservation Centre 2012).

Northwest Coast Energy News Special report links

What the Keystone Report says about Kitimat and Northern Gateway
What the Keystone Report says about the Kinder Morgan pipeline to Vancouver.
What the Keystone Report says about CN rail carrying crude and bitumen to Prince Rupert.
The State Department Environmental Impact Study of the railway to Prince Rupert scenario.

State Department news release

State Department Index to Supplemental Environmental Impact Study on the Keystone XL pipeline


Decision on Black’s Kitimat refinery in 60 days, Edmonton Journal reports

The Edmonton Journal is quoting David Black as saying in Fate of proposed Kitimat refinery to be determined within 60 days:

British Columbia newspaper magnate David Black says he’ll know in about 60 days whether his controversial idea for a new refinery on the West Coast will move forward or die a quiet death.

In a recent interview, Black said he has signed memorandums of agreement with parties interested in the idea of a $15-billion refinery at Kitimat, done some preliminary design work and talked to financial backers — though any deal has a long way to go.

“I’ve been pulling threads together — potential customers, financiers, government, First Nations — and they should all be saying ‘yes’ or ‘no’ within 60 days.”

If the parties say “yes,” there would be two years of regulatory approvals required before construction could begin, he said.

Rolling Stone discovers Northern Gateway controversy, but gets lost on the way to Kitimat

Rolling Stone article on Canadian pipelines
A screen grab of the Rolling Stone article on the Canadian Northern Gateway and Keystone pipelines.

It’s every muscian’s dream to make it On the Cover of the Rolling Stone. (And when Rolling Stone does investigative journalism, every politician’s nightmare).

Now the venerable, storied music mag has discovered the Northern Gateway pipeline, running a story on August 2 on its website and slated to appear in the next dead tree issue on August 16.

The article by Jeff Goodell is a sort of a primer for hip but not yet clued in Americans on the controversies over Canadian pipelines. It features the usual nasty depiction of the bitumen sands with a file photo from the Washington Post via Getty.

But does Kitimat rate a mention in the magazine that has celebrated the Beatles, the Beach Boys, the (original and real) Rolling Stones, Bob Dylan, the Police, Nirvana, Justin Bieber and The Sheepdogs?

Nope.  Imagine that, an entire article on the Northern Gateway Pipeline and not one mention of Kitimat. Instead Goddell says:

Canada is pushing for a new route called the Northern Gateway, which would cut through three major watersheds in western Canada and turn the fragile coast of British Columbia into a bustling tanker port.


In one way Kitimat is in good company, for when the band that originated the “Cover” song, Dr. Hook & the Medicine Show, did make Rolling Stone, the magazine cover had “What’s-Their-Names Make the Cover.”

It’s one thing not to get any respect for Kitimat from the Alberta media, but at least Albertans spell Kitimat right (most of the time–although sometimes they get Kitamaat Village wrong). Here in the northwest we’re used to being dissed by Albertans.

Of course, while the entire coast is endangered by increased traffic in supertankers, it’s Kitimat that is the perhaps maybe, perhaps sometime, perhaps inevitable, perhaps never “bustling tanker port.”

So what could Kitimat do  to make it up from being ignored on the back pages of Rolling Stone to make it to the famous and proverbial cover?

My first idea was a vision of the District of Kitimat Council forming themselves into a rock band.

Joanne and the……  you can come up with an idea for a name, but I am not sure that would work.

Or maybe if we had a Justin Bieber concert at Riverlodge? That might keep young people from leaving Kitimat at least for a while.

Seriously. We’ve been ignored by Rolling Stone up until now. Now we’re that close to being   equal to What’s-Their-Names.

Maybe Kitimat can change that.

So now the people of Kitimat have a new challenge, beyond dealing with Enbridge, the JRP, the province and the feds,  beyond spending those long months clearing snow and those brief summer days of fishing, and that challenge is: get Kitimat on the cover of the Rolling Stone.


Enbridge files thousands of pages in document dump reply evidence to Northern Gateway JRP

Enbridge Northern Gateway has filed thousands of pages of “reply evidence” to the Northern Gateway Joint Review panel, responding to questions from the panel, from government participants like DFO, and intervenors.

Enbridge also used the filing to issue a news release saying it is adding $500 million in new safety features for its pipeline plans.

Northern Gateway Pipelines Reply_Evidence_  (summary of filings PDF)

Link to 43 item  reply filing on JRP website.

In the introduction to the summary of the evidence the JRP asks

Should the fact that Northern Gateway does not respond to all points in a particular intervenor’s evidence or to all intervenor evidence be taken as acceptance by
Northern Gateway of any of the positions of intervenors?

To which Enbridge replies:

No. Northern Gateway does not accept any of the intervenor positions that are contrary tothe Application or additional material filed by Northern Gateway. Some of those  positions will be dealt with by Northern Gateway in cross examination and argument rather than reply evidence, and others will simply be left to the JRP to determine on the basis of the filed evidence alone.

Related: Vancouver Sun: Christy Clark toughens pipeline stance as Enbridge announces safety upgrades


The reply covers a multitude of topics including

  • Economic Need and the Public Interest
  • Engineering
  • Avalanche Risk and Groundwater Concerns
  • Corrosivity of Diluted Bitumen
  • Improvements Since the Marshall Incident
  • Geotechnical Concerns
  • Geohazards Issues
  • Seismic Design Concerns
  • Recovery of Biophysical and Human Environment from Oil Spills
  • Corrosion, Inspection and Maintenance of Oil Tankers
  • Design and Construction of Oil Tankers
  • Pilotage

In response to numerous questions about the Marshall, Michigan, oil spill, Enbridge repeats what it said in an e-mail to “community leaders” earlier this week and in this morning’s news release, saying: “Enbridge has made a number of improvements since the Marshall incident.”

As part of the filing Enbridge has also filed an update on its aboriginal engagement program.

There are also detailed and updated reports on the company’s plans for the Kitimat valley region.

Haisla Nation confirms it opposes Northern Gateway, demands Ottawa veto Enbridge pipeline; First Nation also outlines “minimum conditions” if Ottawa approves the project

Haisla NationThe Haisla Nation has confirmed in a filing with the Northern Gateway Joint Review Panel that it opposes the Enbridge Northern Gateway project.

The document, filed June 29, 2012, is one of the most significant filed with the JRP during all the years of the debate over the controversial Northern Gateway, setting out a three stage process that will govern, whether Enbridge or the federal government like it or not, the future of the Northern Gateway pipeline project.

First, the Haisla Nation affirms that it opposes the Northern Gateway project

Second, the Haisla Nation is demanding that the federal government, in recognition of aboriginal rights and title, reject the Northern Gateway project on Haisla traditional territory.

Third, probably anticipating that Stephen Harper and his government will attempt to force the Northern Gateway on British Columbia, the Haisla are demanding meaningful consultation and set out a stringent set of minimum conditions for the project on Haisla traditional territory.

The Haisla Nation’s lawyers filed the document today late today, June 29, in response to a series of questions posed to the First Nation by Enbridge through the Joint Review process.

The Haisla also say that there already projects that are better suited to their traditional territory, the liquified natural gas projects.

The Haisla position that Ottawa must reject the pipeline if First Nations oppose it is the opening round in the constitutional battle over not just the pipeline, but entire question of aboriginal rights and title. So far the government of Stephen Harper has said that First Nations do not have a “veto” on the pipeline and terminal project.

The Haisla also refuse to answer questions that Enbridge posed on the liquified natural gas projects because the filing argues, the questions are beyond the scope of the current Joint Review inquiry.

Detailed excerpts

Haisla outline where they believe Enbridge Gateway plans are inadequate

Haisla outline conditions, concerns for Northern Gateway project



Why the Haisla oppose Northern Gateway

In the filing with the Joint Review panel, the Haisla outline nine reasons for opposition to the Northern Gateway project:

1. Northern Gateway is proposing to site its project in a location that places at risk the ecological integrity of a large portion and significant aspects of Haisla Nation Territory and resources.

2. All three aspects of the proposed project – the pipelines, the marine terminal and tankers – have the potential to impact Haisla Nation lands, waters and resources.

3. Northern Gateway has neither conducted sufficient due diligence nor provided sufficient information with respect to the assessment of a number of critical aspects of the proposed project, including but not limited to project design, impacts, risks, accidents and malfunctions, spill response, potential spill consequences and the extent, degree and duration of any significant adverse environmental effects.

4. There are significant risks of spills of diluted bitumen, synthetic crude, and condensate from corrosion, landslide hazards, seismic events along the pipeline route and at the terminal site; as well asloss of cargo or service fuels from tanker accidents, with no realistic plan provided for spill containment, cleanup, habitat restoration or regeneration of species dependent on the affected habitat.

5. Diluted bitumen, synthetic crude and condensate are all highly toxic to the environment and living systems and the consequences and effects of a spill could be devastating on the resources that support the Haisla Nation way of life, and would therefore have significant adverse effects on Haisla Nation culture and cultural heritage and aboriginal rights.

6. Risk assessments and technology have not overcome the potential for human error, wherein it is well established that 80% of oil tanker accidents that cause oil spills at sea are a result of human errors: badly handled manoeuvres, neglected maintenance, insufficient checking of systems, lack of communication between crew members, fatigue, or an inadequate response to a minor incident
causing it to escalate into a major accident often resulting in groundings and collisions (http://www.black-tides.com/uk/source/oil-tanker-accidents/causes-accidents.php). It has also become increasingly obvious that maintenance of pipeline integrity and the remote detection of pipeline ruptures is inadequate as exemplified by major environmental damage from recent pipeline ruptures in Michigan and Alberta.

7. The proposed project requires the alienation of Haisla Nation aboriginal title land, and the federal government has refused to engage in consultation with the Haisla Nation about the potential impacts of the proposed project on Haisla Nation aboriginal rights, including aboriginal title.

8. The proposed project would require the use of Haisla Nation aboriginal title land for a purpose that is inconsistent with Haisla Nation stewardship principles and with the Haisla Nation’s own aspirations for this land.

9. For the reasons set out above, the proposed project would constitute an unjustified infringement of Haisla Nation aboriginal title and rights. It would therefore be illegal for the Crown to authorize the project.

Canada is obliged to decline approval of the project

Up until now, the federal government has refused to engage First Nations in the northwestern region over the issue of the Northern Gateway pipeline and terminal, saying that the constitutionally mandated consultation will take place after the Joint Review Panel has released its report. However, the government’s Bill C-38, which gives the federal cabinet (actually the prime minister) the power to decide the pipeline means that the JRP report will be less significant than it would have been before the Conservatives gained a majority government in May, 2010.

The Haisla say the nation has “repeatedly requested early engagement by federal government decision-makers to develop, together with the Haisla Nation, a meaningful process for consultation and accommodation in relation to the proposed project.”

The filing says JRP and “the federal government’s ‘Aboriginal Consultation Framework’ have been imposed on the Haisla Nation and other First Nations, with significant aspects of the concerns expressed by the Haisla Nation about this approach being ignored.”

The Haisla says it “continues to seek a commitment from the federal government to the joint development of a meaningful process to assess the proposed project and its potential impacts on Haisla Nation aboriginal rights, including aboriginal title.”

Later in the filing the Haisla say:

The Haisla Nation has…  repeatedly asked federal decision-makers to commit to the joint development of a meaningful consultation process with the Haisla Nation. The federal Crown decision-makers have made it very clear that they have no intention of meeting with the Haisla Nation until the Joint Review Panel’s review of the proposed project is complete…

The federal Crown has failed to provide any clarity, however, about what procedural aspects of consultation it has delegated to Northern Gateway. Northern Gateway has not consulted with the Haisla Nation and has not advised the Haisla Nation that Canada has delegated any aspects of the consultation process.

The Haisla then go on to say:

Canada is legally required to work with the Haisla Nation to develop and follow such a process. If the process establishes that the approval of the proposed project would constitute an unjustified infringement of Haisla Nation aboriginal rights or aboriginal title, then Canada would be legally obliged to decline approval.

Deficiencies and Conditions

Enbridge asked the Haisla that if there are conditions of approval that would nonetheless
address, in whole or in part, the Nation’s concerns; and then asked for details “on the nature of any conditions that the Haisla Nation would suggest be imposed on the Project, should it be approved.”

The Haisla reply that because there are “significant deficiencies in the evidence provided by Northern Gateway to date.” The nation goes on to say that “the acknowledged risks that have not been adequately addressed in the proposed project.” The Haisla Nation then says it “does not foresee any conditions that could be attached to the project as currently conceived and presented that would eliminate the Haisla Nation’s concerns.”

The Haisla then repeat that Enbridge has not provided sufficient information so that

it is difficult for the Haisla Nation to identify conditions to attach to the proposed project as it is still trying to fully understand the potential impacts of the project and the proposed mitigation. This is primarily because there is insufficient information provided by Northern Gateway in its application material.

Although we have attempted to elicit additional information through the JRP’s information request process, Northern Gateway has not provide adequate and complete answers to the questions posed.

The Haisla then anticipate that Stephen Harper will force the pipeline and terminal on British Columbia and say:

Nevertheless, if the project were to be approved AFTER the Crown meaningfully
consulted and accommodated the Haisla Nation with respect to the impacts of
the proposed project on its aboriginal title and rights, and if that consultation were
meaningful yet did not result in changes to the proposed project, the following
conditions would, at a minimum, have to be attached to the project.

The emphasis of the word “after” is in the original document.

The document that then goes on to present an extensive list of list of conditions the Haisla believe should be imposed on the Enbridge Northern Gateway if the project goes ahead.

The conditions include comprehensive monitoring of water quality, fisheries, wildlife and birds, vegetation throughout the Kitimat River watershed, Kitimat Arm and Douglas Channel; development of comprehensive spill response capability throughout the Kitimat River Valley, Kitmat Arm and Douglas Channel.

The Haisla also want soil and erosion control plans; water management plans; control and storage plans for fuels, lubricants and other potential contaminants; detailed plans for equipment deployment and habitat reclamation of disturbed or cleared areas.

The Haisla also want much more detailed studies before any construction, including analysis of terrain stability and slide potential throughout the pipeline corridor and at the storage tank and terminal site; engineering designs to mitigate seismic risk and local weather extremes; development of pipeline integrity specifications and procedures including best practices for leak detection; storage tank integrity specifications, maintenance and monitoring; assessment of spill containment, spill response and spill capacity requirements throughout the Kitimat River watershed, Kitimat Arm and Douglas Channel.

On tankers the Haisla want more details beyond the plans already filed by Enbridge including
detailed tanker specifications, detailed tanker and tug traffic management procedures; detailed port management specifications and procedures including operating limits for tanker operation, movement and docking.

The Haisla are also demanding “on going consultation” on all issues involved by the National Energy Board prior to any decision on any changes to or sign off on conditions and commitments to any certificate that is issued.

The Haisla want an independent third party be part of a committee to oversee the construction proecess to monitor certificate compliance during construction of the marine terminal and the pipeline.

Once the pipeline and terminal operational, the Haisla want conditions imposed on the project that include ongoing monitoring of the terrain along the pipeline, a system that would automatically shut down the pipeline shutdown whenever a leak detection alarm occurs.

The Hasila want conditions “on the disposal of any contamination that must be removed as
a result of an accident or malfunction resulting in a spill that will minimize additional habitat destruction and maximize the potential for regeneration of habitat and resources damaged by the spill.”

As well as more detailed parameters for the tankers, tugs, and pilotage procedures, the Haisla want approval of any future changes in those procedures.

The Haisla are also concerned about the “alienation” of a large area of their traditional territory by the construction of the Northern Gateway project as well as the “additional infrastructure” required by adequate spill response capability and spill response equipment cache sites.

The Haisla say “all of the land alienations required for the proposed project would profoundly
infringe Haisla Nation aboriginal title which is, in effect, a constitutionally protected ownership right” and goes on to say “proposed project would use Haisla Nation aboriginal title land in a way that is inconsistent with Haisla Nation stewardship of its lands, waters and resources and with the Haisla Nation’s own aspirations for the use of this land.”

The Haisla filing then goes on to say:

Since aboriginal title is a constitutionally protected right to use the aboriginal title land for the purposes the Haisla Nation sees fit, this adverse use would fundamentally infringe the aboriginal title of the Haisla Nation.

The report also expresses concerns about the ongoing socio-economic affects of such a large project.

It concludes by saying:

These issues are important. They go to the very heart of Haisla Nation culture.
They go to the Haisla Nation relationship with the lands, waters, and resources of
its Territory. A major spill from the pipeline at the marine terminal or from a
tanker threatens to sever us from or damage our lifestyle built on harvesting and
gathering seafood and resources throughout our Territory.

Northern Gateway proposes a pipeline across numerous tributaries to the Kitimat
River. A spill into these watercourses is likely to eventually occur. The evidence
before the Panel shows that pipeline leaks or spills occur with depressing

One of Enbridge’s own experiences, when it dumped 3,785,400 liters of diluted
bitumen into the Kalamazoo River, shows that the concern of a spill is real and
not hypothetical. A thorough understanding of this incident is critical to the
current environmental assessment since diluted bitumen is what Northern
Gateway proposes to transport. However, nothing was provided in the application
materials to address the scope of impact, the level of effort required for cleanup
and the prolonged effort required to restore the river. An analysis of this incident
would provide a basis for determining what should be in place to maintain
pipeline integrity as well as what should be in place locally to respond to any spill.

The Kalamazoo spill was aggravated by an inability to detect the spill, by an
inability to respond quickly and effectively, and by an inability to predict the fate
of the diluted bitumen in the environment. As a result, the Kalamazoo River has
suffered significant environmental damage. The long-term cumulative
environmental damage from this spill is yet to be determined.

Looking to the future, the Haisla are also asking for a plan for the eventual decommissioning of the project, pointing out that “ Northern Gateway has not provided information on decommissioning that is
detailed enough to allow the Haisla Nation to set out all its concerns about the
potential impacts from decommissioning at this point in time.”

Haisla leaders have already expressed concern about the legacy of the Eurocan paper plant. Now it tells Enbridge

This is not good enough. The Haisla Nation needs to know how Northern Gateway proposes to undertake decommissioning, what the impacts will be, and that there will be financial security in place to ensure this is done properly.

Asserts aboriginal title

The section of the report concludes by saying:

The Haisla Nation asserts aboriginal title to its Territory. Since the essence of
aboriginal title is the right of the aboriginal title holder to use land according to its
own discretion, Haisla Nation aboriginal title entails a constitutionally protected
ability of the Haisla Nation to make decisions concerning land and resource use
within Haisla Nation Territory. Any government decision concerning lands,
waters, and resource use within Haisla Nation Territory that conflicts with a
Haisla lands, waters or resources use decision is only valid to the extent that the
government can justify this infringement of Haisla Nation aboriginal title.

The Supreme Court of Canada has established that infringements of aboriginal
title can only be justified if there has been, in the case of relatively minor
infringements, consultation with the First Nation. Most infringements will require
something much deeper than consultation if the infringement is to be justified.
The Supreme Court has noted that in certain circumstances the consent of the
aboriginal nation may be required. Further, compensation will ordinarily be
required if an infringement of aboriginal title is to be justified [Delgamuukw].

The Haisla then go on to say that the preferred use of the land in question is for the liquified natural gas projects:

The Haisla Nation has a chosen use for the proposed terminal site. This land
was selected in the Haisla Nation’s treaty land offer submitted to British Columbia
and Canada in 2005, as part of the BC Treaty Negotiation process, as lands
earmarked for Haisla Nation economic development.

The Haisla Nation has had discussions with the provincial Crown seeking to
acquire these lands for economic development purposes for a liquefied natural
gas project. The Haisla Nation has had discussions with potential partners about
locating a liquefied natural gas facility on the site that Northern Gateway
proposes to acquire for the marine terminal. The Haisla Nation sees these lands
as appropriate for a liquefied natural gas project as such a project is not nearly
as detrimental to the environment as a diluted bitumen export project.

Northwest Coast Energy News is attempting to contact Enbridge Northern Gateway for comment on the Haisla filing. Response may be delayed by the Canada Day holiday.


Haisla Nation Response to NGP Information Request  (pdf)