Court orders man to donate $5,000 to wildlife trust in deer harassment case

A Portuguese man was fined $1 in Terrace Provincial Court Wednesday Sept. 2 and ordered to donate $5,000 to the Heritage Conservation Trust Fund for hitting a swimming deer on the head off Bish Cove in Douglas Channel on May 14.

Rodolfo Lopes, previously misidentified in court documents as Martins-Lopes, pleaded guilty in to one count under the BC Wildlife Act of harassing wildlife with a motor vehicle.

Evidence in the case showed that Lopes hit the deer on the head with a jig or gaff in an attempt to bring it on board. The deer managed to escape and make it to shore.

Such donations are permitted under the BC Wildlife Act. The money, which Lopes originally paid in bail, will be allocated to conservation efforts in the Kitimat region.

Other charges against Lopes, a former supervisor at the Rio Tinto Alcan Kitimat Modernization Project, including one count of causing unnecessary pain and suffering to an animal under the Criminal Code were stayed by the Crown.

Provincial Court Judge Terence Wright also prohibited Lopes from approaching wildlife for the next two years unless required by his employment.

Lopes did not return from Portugal for the hearing. Vancouver lawyer Don Sorochan, QC, appeared on his behalf.

Crown counsel Corinne Baerg said Lopes was a supervisor at Brasco, one of the subcontractors at KMP, and had hired a fishing guide to help celebrate both the end of their work at the aluminum smelter modernization project and Lopes’ planned wedding in August.

After a day of what was apparently unsuccessful fishing, Lopes and five others were on board the boat, returning to Kitimat, when a deer was spotted swimming in Douglas Channel.

According to the submission, the guide then took the boat “ running up alongside” the deer. At that point Lopes hit the deer on the head with what some witnesses said was a jig and others said was a gaff in attempt to haul it on board. The deer was able to free itself, swam to shore and disappeared into the bush.

After Conservation Officers were told  about the incident by residents in Kitimat who saw a video of the fishing trip on Facebook, one of the men on the boat voluntarily surrendered cell phone video and other evidence was seized under a search warrant. The video was not shown in court.

Because Lopes was not a Canadian resident he was arrested and spent time in custody before being granted bail and was permitted to return to Portugal.

In his defence submission, Sorochan said Lopes was not familiar with Canadian hunting and wildlife laws and was totally dependent on the “advice of his professional guide.” Sorochon told the court that the incident had become exaggerated by people gossiping on social media.

Sorochan told the court that Lopes began with Brasco as a bricklayer in 1996 and had quickly risen to supervise construction projects all over the world. The lawyer called the attempt to get the deer “a naive impulse” by a man who was trying to be macho in an unfamiliar setting.

He submitted letters of reference for Lopes from Brasco, another company and a Kitimat union.

Wright, in confirming the proposed sentence, said that given the circumstances, the fine and donation was the “appropriate penalty.”

Wright noted that it was not possible to ascertain how badly injured the deer was. He also noted that Lopes did not have a criminal record and his employer had praised his work in many parts of the world.

Andreas Handl, who runs Kitimat’s Kingfish Westcoast Adventures, was scheduled to appear in a Kitimat court Thursday, Sept 3, but the appearance was adjourned until October.

He is charged under the B.C. Wildlife Act with harassing wildlife with a motor vehicle and hunting wildlife while swimming, as well as causing unnecessary pain and suffering under the Criminal Code.

Editorial: On the Simushir, Oceans Minister Gail Shea takes ministerial responsibility to a new low—the bottom of the sea

On Monday, October 20, 2014, the Minister of Fisheries and Oceans, Gail Shea, stood in the House of Commons during Question Period and proved she is not up for the job.

Answering questions from  Opposition MPs about the incident of the Russian container ship, Simushir, which drifted dangerously close to the coast of Haida Gwaii, Shea got up and read a prepared script, a script with answers which ignored centuries of the laws and custom of the sea, as well as Canada’s own laws and treaty obligations, answers probably written by what are now known as “the kids in short pants” in the Prime Minister’s Office.

There was a time in this country when some ministers of the Crown took their responsibilities seriously. That idea that has decayed over the years and now has been gutted by the adminstration of Stephen Harper. As Ottawa pundits have noted recently, only a small handful of cabinet ministers in the Harper government have any real responsibility and only those  are permitted to answer questions by themselves in the Commons. According to most Ottawa insiders, the less important ministers, like Shea, are basically told what to do by the prime minister’s office.

Gail Shea, Minister of Fisheries and Oceans, visited the Canadian Coast Guard Ship Leonard J. Cowley on Friday, December 6,  2013, to examine the fast rescue craft launching mechanism for offshore fishery patrols with Regional Director, Fleet, Stephen Decker and Captain Kerry Evely, Commanding Officer. The Cowley conducts fisheries patrols and monitors fishing activities under Canada's commitment to the Northwest Atlantic Fisheries Organization. (DFO)
Gail Shea, Minister of Fisheries and Oceans, visited the Canadian Coast Guard Ship Leonard J. Cowley on Friday, December 6, 2013, to examine the fast rescue craft launching mechanism for offshore fishery patrols with Regional Director, Fleet, Stephen Decker and Captain Kerry Evely, Commanding Officer. The Cowley conducts fisheries patrols and monitors fishing activities under Canada’s commitment to the Northwest Atlantic Fisheries Organization. (DFO)

If the House of Commons under Harper could fall any lower, Shea’s attitude (or more likely the PMO’s attitude)  on ship and coastal safety takes the Commons and ministerial responsibility to a new low—the bottom of the sea.

Nathan Cullen, NDP MP for Skeena Bulkley Valley, who represents Haida Gwaii first asked. “Mr. Speaker, on Friday, a Russian ship carrying more than 500 million litres of bunker fuel lost all power just off the coast of Haida Gwaii.The Canadian Coast Guard vessel, the Gordon Reid, was hundreds of kilometres away, and it took almost 20 hours for it to reach the drifting ship. Thankfully, favourable winds helped keep the ship from running aground, and a private American tugboat eventually towed it to shore. Is the minister comfortable with a marine safety plan that is based on a U.S. tugboat and blind luck in order to keep B.C.’s coast safe?”

Shea responded.

“Mr. Speaker, luck had nothing to do with the situation.  The Russian ship lost power outside Canadian waters in very rough weather. The private sector provides towing service to the marine industry. We are grateful that the Canadian Coast Guard was able to keep the situation under control in very difficult conditions until the tug arrived from Prince Rupert.”

Cullen tried again:

“Mr. Speaker, if the government really wanted to show its gratitude to the Canadian Coast Guard maybe it would not have cut $20 million and 300 personnel from its budget. Even after the Gordon Reid arrived, its tow cable snapped three times. The Russian ship was only about a third as big as the huge supertankers that northern gateway would bring to the very same waters off the west coast. How can Conservatives, especially B.C. Conservatives, back their government’s plan to put hundreds of oil supertankers off the B.C. coast when we do not even have the capacity to protect ourselves right now?”

Shea replied: “Mr. Speaker, this Russian ship lost power outside of Canadian waters. The Canadian Coast Guard responded and kept the situation under control, under very difficult conditions, until the tug arrived from Prince Rupert.

We as a government have committed $6.8 billion through the renewal of the Coast Guard fleet, which demonstrates our support for the safety and security of our marine industries and for our environment.”

Related Link: Canadian Coast Guard Mid-Shore Patrol Vessel program

Next to try was Liberal MP Lawrence MacAulay from Cardigan.

“Mr. Speaker, the Russian container ship that drifted off the west coast raises serious concerns about the response capability of the Canadian Coast Guard. This serious situation was only under control when a U.S. tugboat arrived.”

Again Shea read her script: “This Russian ship lost power outside Canadian waters.  On the west coast, the private sector provides towing services to the marine industry.’

The final attempt by Liberal Joyce Murray, from Vancouver Quadra, also led to a scripted answer. “ this was a private towing vessel that came to tow the vessel that was in trouble.”

Shea’s answers, especially her repeated reference to “territorial waters” set off a series of “What the…?” posts on Twitter from west coast mariners and sailors, wondering if Shea knew anything about maritime law.

The first question one must ask was Shea actually not telling the whole truth to the House of Commons (which is forbidden by House rules) when she said the Simushir was outside Canadian waters? The Haida Nation, in a news release, (pdf) says the Simushir was “drifting about 12 Nautical Miles North West of Gowgaia Bay located off Moresby Island off Haida Gwaii.”

International law defines territorial waters  as a belt of coastal waters extending at most 12 nautical miles (22.2 km; 13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state.

As Shea’s own DFO website says Canada has exercised jurisdiction over the territorial sea on its east and west coasts out to 12 nautical miles since 1970, first under the Territorial Sea and Fishing Zones Act and now under the Oceans Act. The baselines for measuring the territorial sea were originally set in 1967. While the exact position can and should be confirmed by the ship’s navigation logs and GPS track, it is clear that the container vessel could have been at one point after it lost power within Canada’s territorial waters.

Even if the Simushir wasn’t exactly within territorial waters, the ship was in what again Shea’s own DFO website calls the “contiguous zone “an area of the sea adjacent to and beyond the territorial sea. Its outer limit measures 24 nautical miles from the normal baseline zone.” In any case, the Simushir was well within what Canada says is its “exclusive economic zone” which extends 200 nautical miles from the coastal baseline.

Law of the Sea

So here is the first question about Shea’s competence.

How could she not know that the Simushir was well within Canadian jurisdiction, as defined by her own department’s website? Even if the minister hadn’t read the departmental website, wasn’t she properly briefed by DFO officials?

The second point, is that whether or not the Simushir was in  actually in Canada’s territorial waters is irrelevant. Custom going back centuries, and now the United Nations Convention on the Law of the Sea  and even the Canada Shipping Act all require the master of a capable vessel to render assistance once that vessel receives a distress call or sees that another vessel is in distress.

The Safety of Life at Sea Convention

… the master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so.

And the Canada Shipping Act requires

Every qualified person who is the master of a vessel in any waters, on receiving a signal from any source that a person, a vessel or an aircraft is in distress, shall proceed with all speed to render assistance and shall, if possible, inform the persons in distress or the sender of the signal.

The master of a vessel in Canadian waters and every qualified person who is the master of avessel in any waters shall render assistance to every person who is found at sea and in danger of being lost.

Note the phrase any waters. Not just in Canadian territorial waters as the Shea, the minister responsible for the ocean seemed to imply in her Commons answers.

That once again calls into question Shea’s fitness to be a minister of the Crown.

If she did not know about the UN conventions on the law of the sea, of which Canada is signatory, or the Canada Shipping Act, she is not up for the job as Minister of Fisheries and Oceans.

If, as the minister responsible for oceans, she knew the law and was told by the PMO to mislead the House of Commons, she is is irresponsible and MPs should ask the Speaker if she actually broke the rules of the House.

 UN training document on the Law of the Sea Convention, including rescue at sea.  (pdf)

Regulation Seven of the Annex on Search and Rescue Services states

 Each Contracting Government undertakes to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers, and shall, so far as possible, provide adequate means of locating and rescuing such persons.

Note that the regulation does not say within territorial waters, but “around its coasts.”

Rendering assistance

Canada has always rendered assistance to distressed vessels not just up and down the coast but around the world. Take the case of HMCS Chartlottetown. On February 3, 2008, HMCS Chartlottetown on anti-piracy and anti-terrorist patrol in the North Arabian Sea, spotted a rusty barge with some men stranded on the deck. It turned out the men were from Pakistan and that the vessel towing the barge had sunk with all hands, leaving only the men on the barge alive. The North Arabian Sea is far out side Canadian territorial waters.

In February, 2008. the crew of HMS Charlottown rescued the crew of a Pakistani barge that was drifting in the North Arabian sea after the tug that was hauling the barge sank. (MCS CHARLOTTETOWN’s approach team speaks to Pakistani crewmembers who were stranded on a barge after the vessel towing it sunk with their fellow crewmembers on board in the Northern Arabian Sea. MCS CHARLOTTETOWN’s approach team speaks to Pakistani crew members who were stranded on a barge after the vessel towing it sunk with their fellow crewmembers on board in the Northern Arabian Sea. (Cpl Robert LeBlanc,/Canadian Forces Combat Camera)
In February, 2008. the crew of HMCS Charlottetown rescued the crew of a Pakistani barge that was drifting in the North Arabian sea after the tug that was hauling the barge sank. (Cpl Robert LeBlanc,/Canadian Forces Combat Camera)

On must wonder then if the Harper Government, or at least Minister Shea is suggesting that this country ignore centuries of maritime law and custom and, in the future, pass that barge by because it was not in Canadian waters?

Perhaps buried in the next omnibus bill we will see the Harper Government restrict rescue at sea to Canadian territorial waters. Farfetched? Well that is what Minister Shea’s answer in the Commons seems to suggest.

Given the cutbacks to the Coast Guard services over the past few years, and if there are going to be large tankers, whether LNG or bitumen, on the west coast, it is an open question whether or not the Harper government has actually made  those “arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers, and shall, so far as possible, provide adequate means of locating and rescuing such persons.”

Now comes the question of the use of the tug Barbara Foss and the two Smit tugs that later joined to tow the Simushir into Prince Rupert harbour.

It is the responibility of the owner or manager of a disabled vessel, large or small, to contract with a tug or towing service to safely take it back to port. But, and it’s a big but, the tow begins only when it is safe to do so, if there is a danger of the ship foundering, sinking or running aground, it is the obligation of all the responding vessels to render assistance, not just the tug contracted to do the job.

(There are reports that the Simushir owners chose to hire the Barbara Foss rather than the heavy duty Smit tugs available at Prince Rupert. Jonathan Whitworth, CEO of Seaspan told Gary Mason of The Globe and Mail that there are about 80 boats on the west coast, capable of  heavy-duty towing, but noted that as in the case of the Simushir, those vessels may not be available when needed)

While around the Lower Mainland of BC, even a small boat that has run out of gas or has engine trouble can get commercial assistance from many service providers, the same is not true of the north coast, or at Haida Gwaii, where are no such regular services. Seapan’s Whitworth told The Globe and Mail there is often a 6,000 horsepower log hauling tug that works off Haida Gwaii. but he also noted that it would be too expensive to have a tug permanently moored on the archipelago.

That means mariners who run out of gas or have engine trouble, say on Douglas Channel, have to call Prince Rupert Coast Guard radio and request assistance either from nearby vessels or from the volunteer Royal Canadian Marine Search and Rescue  service. RCMSAR policy says that a the rescue boat will not tow a vessel if “commercial assistance is reguarly available.” If commercial assistance is not available RCMSAR is only obligated to tow the boat as far as a “safe haven,” where the boat can tie up safely or contract for that “commercial assistance.”

Here on Douglas Channel the safe haven is usually Kitimat harbour and thus during the summer frequently either a good  Samaritan vessel or RCMSAR take the disabled vessel all the way to MK Bay.

Shea’s pat answer to the Opposition questions only betrayed the fact that the east coast minister is woefully ignorant of conditions on the northern coast of British Columbia.

In the old days, a minister who screwed up so badly would be asked to resign. That never happens any more. Ministerial responsibility has sunk to the bottom of the sea.

The bigger picture question seems to be. Why, if the Harper government is so anxious to get hydrocarbons, whether bitumen or natural gas to “tide water” does it keep going out of its way to show its contempt for the people who live on Canada’s west coast?

A note for the voters of Prince Edward Island, where Shea is the member for Egmont. Consider this, if a ship gets into trouble outside the 12 mile limit, trouble that could threaten your beautiful red sandy beaches, you’re likely on your own.

Blue Horizon obtains injunction to stop Methanex equipment leaving Kitimat site

Old Methanex site, Kitimat BC
A truck enters the old Methanex site, now being dismantled, on the snowy afternoon of January 13, 2012. (Robin Rowland/Northwest Coast Energy News)

Blue Horizon, the company that had  and lost the contract to  dismantle the old Methanex site in Kitimat has obtained an injunction preventing the buyer of the equipment from removing the material from the site by the Kitimat River.

Last November, Ko Yo Development of Hong Kong cancelled its contract with Blue Horizon that would have seen the equipment in the plant dismantled and shipped to China.

Part of the old Methanex site is now operated by Cenovus and is used to ship condensate to the Alberta bitumen sands by rail.

Shell purchased the Methanex site and marine terminal in October, 2011, as part of its plans for a liquified natural gas facility at Kitimat.  At the time of the contract cancellation in November, Shell spokesman Stephen Doolan told Northwest Coast Energy News  “The transaction … does not affect Shell’s purchase of the Cenovus property, nor is Shell involved in any way.” On Friday, Doolan said he had nothing more to add to the original statement.

A news release issued by Blue Horizon says:

Blue Horizon Industries Inc. (“Blue Horizon” or the “Corporation”) (CNSX:BH) announces that its wholly owned subsidiary Blue Horizon Energy Inc. (“BH Energy”), on behalf of its wholly owned division Blue Horizon Contracting, obtained on January 12, 2012 an injunction in the Supreme Court of British Columbia, Vancouver Registry, prohibiting Ko Yo Development Co. Ltd., a Hong Kong incorporated company (“KoYo”) and Guangan Lotusan Natural Gas Chemicals Co. Ltd., a corporation incorporated under the laws of the Peoples Republic of China (“GLN”) from removing any portion of the dismantled ammonia or methanol plants from the Province of British Columbia unless and until KoYo / GLN posts security in court in the amount of $4,180,000 by way of an irrevocable letter of credit or other security acceptable to BH Energy and to the Court.

Mr. Don Allan, President and CEO of Blue Horizon, stated “We are pleased that the Supreme Court of British Columbia ruled quickly and decisively in this matter by issuing the injunction against KoYo / GLN while at the same time awarding significant security for costs and court costs to BH Energy. We are continuing to focus our attention on completing the bid process for a number of new high value dismantling contracts expected to be awarded for execution in 2012 as well as advancing our other operating businesses.”

 

The dispute between Blue Horizon, the Red Deer  based contractor  and Hong Kong based Ko Yo goes back months.   The original contract was awarded in February, 2011, renegotiated in September 2011 and then cancelled in November, 2011.

Bula sign on Methanex site
On the Methanex Project sign at the entrance to the decomissioning site, stencils from Bula.ca, the new contractor, can be seen overwriting Blue Horizon, the former contractor. (Robin Rowland/Northwest Coast Energy News)

The dismantling of the Methanex plant has since resumed with work being handled by a new contractor, Bula Enterprises, also of Red Deer.  A profile of Bula Enterprises on the website shows that  it has extensive construction experience, much of it in the Alberta   oil patch, including projects for Shell Albian, CNRL, Suncor, Conoco Phillips in Fort McMurray. As of late Friday afternoon, Bula had not returned calls seeking comment on how the injunction might affect the deocommissioning.

Ko Yo Chemical (Group) Limited, formerly Ko Yo Ecological Agrotech (Group) Limited, is a Hong Kong based investment holding company. According to a company profile it is engaged in the research and development, manufacture, marketing and distribution of chemical products, chemical fertilizers and bulk blending fertilizers and has a natural gas energy utilization project at Dazhou City, Sichuan Province, China. The company has a number of subsidiaries with similar names.

 

Gitxsan protestors ordered to end blockade by Sunday

First Nations

Members of the Gitxsan First Nation who are objecting to the deal signed between Enbridge and the Gitxsan Treaty Office have been served an injunction ordering them to end their blockade of the office in Hazelton by Sunday.

CFJW Gitxsan Protesters Vow to Defy Court Injunction

Protesters continue to bar access to the Gitxsan Treaty Society Office in Hazelton — and are vowing to defy a court injunction ordering them away from the office.

They’re furious over last Friday’s announcement by Treaty officer and Hereditary Chief Elmer Derrick, that the Gitxsan had entered into a partnership with Enbridge on the Northern Gateway project.

Hereditary chief Norman Stephens (Guuhadakw) of the Wolf Clan says the announcement was completely improper. “Elmer Derrick had no right to negotiate a deal with Enbridge on behalf of the Gitxsan Hereditary Chiefs,” said Stephens, adding “he’s employed as a Gitxsan Treaty Society negotiator for treaty, not with industry.”

CFJW Gitxsan Treaty Society hoping cooler heads will prevail

The Gitxsan Treaty Society is fighting back against Gitxsan members opposing a $7 million ownership deal with Enbridge relating to the controversial Northern Gateway pipeline project.

A negotiator with the society says they sought a court order against the protesters blocking access to their Hazelton office, so they could return to work and begin to address the concerns of the Gitxsan members denouncing the deal announced last week.

Beverley Clifton Percival says the society’s directors are prepared to talk, but need to be working in order to do so.

“I think they have valid concerns and valid questions and I certainly do want to answer them, but I cannot do that when I’m not allowed into my office or access to any of the papers or anything.”


Vancouver Sun  Enbridge pipeline protesters issued eviction date

Hereditary chief Norman Stephens said the group received the notice on Tuesday…

The opposing leaders and members are now collecting written declarations from other hereditary chiefs supporting their position, Stephens said.

“[Derrick, Sebastian and Percival] are three disgruntled employees that we’ve laid off, and they are the ones who filed for the injunction, so we’ve got letters from people saying they are no longer employed by the Gitxsan hereditary chiefs,” Stephens said.

“They can’t [file] an injunction on a building they don’t own.

“They just don’t recognize that they’ve been fired.”

Cleanup worker files whistle blower lawsuit over Kalamazoo oil spill

Energy Environment Law

The Kalamazoo Gazette reports in
Judge to hear whistle-blower lawsuit of Kalamazoo River oil spill worker
 

A Calhoun County judge next week will hear a whistle-blower lawsuit from a former Kalamazoo River oil spill cleanup worker who said he was fired after telling the media and state and federal agencies that crews were told to cover up oil instead of cleaning it up.

John Bolenbaugh, of Athens, filed suit Nov. 9 against his former employer, SET Environmental Inc.

[A] brief says that the lawsuit stems from “massive operations engaging in cover-ups, lies and deceit.”

Enbridge, the brief claims, ordered contractors including SET to “deliberately and intentionally engage in improper
clean-up efforts, which included covering up oil, spreading out oil, and hiding spilled oil from the public and EPA.”

The lawsuit also claims that Bolenbaugh was wrongfully fired because he “reported and threatened to further report to the EPA and other public bodies what he believed to be illegal activities relating to the improper cleanup efforts.”

Enbridge spokesman Jason Manshum said Wednesday night that the company “would never instruct a contractor to cover oil.”

“Since the outset of the incident, our goal has been to restore the area as close as possible to its preexisting condition,” Manshum said. “That is our only goal and we remain fully committed to that goal.”

Analysis: The NEB and LNG, The environment if necessary, but not necessarily the environment

Analysis

If there are any doubts about the confusing nature of National Energy Board hearings,  at least for the public, as opposed to energy lawyers, that can be found in the decision relating to the application for the KM LNG limited partnership to export natural gas.  The NEB granted a licence that will allow the partners, Apache, Encana and EOG to export natural gas to Asia for the next 20 years.

One of the questions at the hearings, with many people in the northwest also worried about the upcoming Joint Review Panel hearings on the proposed Enbridge Northern  Gateway pipeline, was what about the environmental effects  of the natural gas pipeline​?

It all depends on the legal terms “necessary connection.”

During the briefings in Kitimat months before the actual June hearings, NEB officials said that the environmental implications of the natural gas project would not be part of the consideration because the board’s mandate in this case was whether or not to grant the export licence.  The NEB officials said that since the Kitimat LNG project was almost entirely within the province of British Columbia, the environment was the responsibility of the province, not the board nor the federal government.

At the LNG hearings, lawyers for the energy companies made similar arguments, as the NEB decision relates, saying  that KM LNG’s lawyers maintained that there was no “necessary connection” between the pipeline and the environment and so “noted that the Board is no longer required to conduct environmental assessment for gas export licence applications because those applications, unlike certain facilities applications do not trigger an environmental assessment under the CEA [Canadian Environmental Assessment ] Act and the only environmental side effects, if any, the board could consider would be those not already studied by the province.”

(The January hearings on the Enbridge pipeline are different because that in terms of the NEB mandate is a “facility” hearing, not a simple licence hearing and therefore portions of the federal Environmental  Assessment Act come into play.)

In the decision, the board  members rejected those arguments:

First, the board said that even if the application does not trigger a CEA Act assessment, “that does not preclude the Board from considering potential environmental effects  and directly related social effects of gas exports when assessing the application.”

The NEB went on to to note that the board  has found a “necessary connection” in previous gas export applications, therefore: “The Board will consider environmental  and related social effects of a proposed export  if those effects  are necessarily connected to the exportation….”

So the board found that it did have the jurisdiction to examine the environmental effects of  marine shipping activities,  the natural gas terminal and the Pacific Trails Pipeline that would lead to the terminal at Kitimat.

On the pipeline and the terminal, the board then says:  “that no evidence was placed on the record  to suggest that  there are any environmental effects  directly connected to  this proposed  export that has not already  been addressed by the appropriate regulatory agencies.”

As for the effects of marine activities  the NEB says  the Transport Canada TERMPOL process (which is also looking at the bitumen tankers that will be on the coast if the Enbridge project goes ahead)  was sufficient.


The Board is of the view that potential environmental  effects and directly related social effects have been considered ….or will be considered through TERMPOL….Based on the foregoing, the Board is of the view that work conducted under the relevant federal and provincial legislation  and process is not warranted  and the Board has been able to to adequately consider the environmental  and related social effects in  making a decision on the export licence.


In other words, the National Energy Board ruled that it can maintain its jurisdiction over the environment, if necessary, but not necessarily do anything about it, if someone else is  apparently already doing the job.

As was frequently pointed out in the June hearings, the NEB mandate is what is called “Market-Based Procedure” when it comes to natural gas. That policy came into effect in 1987,  and was founded “on the premise that the marketplace  will generally operate  in such a way that Canadian requirements for natural gas  will be met a fair market prices.”

The year 1987, of course, was at the height of the political and economic love affair with the marketplace.  Now in October 2011, the “Occupy” demonstrations in almost every major city on this planet and many small towns, show that this love affair has gone sour.

While the Enbridge  Northern Gateway Joint Review has a wider mandate, the problem remains. 

No image of planet Earth shows national boundaries. Nor does an image of planet Earth show the bureaucratic fault lines between the National Energy Board, Transport Canada, the Environmental Assessment Agency, not mention the provincial agencies.

The mandate for the NEB is more than 25 years out of date. National Energy Board hearings are limited by narrow rules of procedure which the energy company lawyers try again and again to use to their advantage. 

These problems aren’t going to go away as the natural gas rush accelerates.

No one is looking at the “big picture.” Who knows what will fall through the cracks?  No one ever cares about the unexpected consequences until there is 20/20 hindsight.

The problem, of course, is that there is no recourse for this problem. Stephen Harper’s government is cutting staff at Environment Canada, defunding environmental advocacy and watch dog groups (even those supported by industry) and like all conservatives somehow think that more deregulation will somehow bring back the jobs that the deregulated financial sector destroyed.

The NEB notes that the  1985 Western Accord that set up the current rules for the board is also called the “Halloween Agreement.” 

Scarey.

National Energy Board decision on KM LNG

US Coast Guard seizes “stateless” drift net boat off Alaska: AP

Fishery

Associated Press reporter Becky Bohrer in Juneau reports on the Bangun Perkasa a rat-infested illegal fishing boat with a 10 mile long drift net seized off Alaska.

Seized Vessel Shines Light on Illegal Fishing

The recent seizure of a stateless ship in international waters 2,600 miles off Alaska’s coast has spotlighted the challenge that the U.S. and other nations face in trying to crackdown on illegal fishing, an activity that accounts for up to $23.5 billion a year in global economic losses.

Finding rogue vessels in the vast, open ocean can be like finding a needle in a haystack. But U.S. officials and some environmentalists say progress is being made, including multinational patrol and enforcement agreements and the potential for sanctions against countries that engage in illegal, unreported and unregulated (or IUU) fishing.

Editorial: Lawyers have a lot to be thankful for this weekend

Editorial

As lawyers from Vancouver Island to Calgary and on to Ottawa sit down for Thanksgiving dinner on Monday,  they will be counting their blessings and adding up their billable hours thanks to the surprise announcement by Enbridge that the company is getting into the west coast LNG rush.

On Thursday, Enbridge CEO Pat Daniel told Reuters that Enbridge is interested in joining one of the two proposed Canadian LNG projects to ship natural gas to Asia. Reuters reported that “‘Enbridge plans to build a natural gas pipeline along the route of the proposed Gateway oil line, which would transport natural gas from Horn River and other natural gas fields to the coast by 2016,’ Daniel said.”

Thursday was also the deadline for public to register for the Joint Review Panel to make oral statements about the Northern Gateway bitumen pipeline.

Now everything has apparently changed.

That brings to mind the quote from Abraham Lincoln who told an audience in the 1864 presidential campaign, “An old Dutch farmer… remarked to a companion once that it was not best to swap horses when crossing streams.”

That has now been generally shortened to “Don’t change horses in midstream.”

Which is sort of ironic, since Enbridge just bought what the energy industry calls a “midstream” natural gas plant in northeastern British Columbia as part of its plans to get into the LNG “play.”

So what happens now, that it appears that one way or another the LNG and Northern Gateway pipeline projects could be combined?

How does this affect the Joint Review Panel on the bitumen pipeline and the hearings that begin in January?

Is is fair that registration for public comment participation is closed now that suddenly the pipeline situation is changing almost daily?

The National Energy
Board hearings on an export licence on the  KM LNG project have concluded. If Enbridge buys into the KM LNG project  and Kitimat  LNG is now connected, one way or another,  with the
Northern Gateway, how does that affect the pending National Energy Board decision?

As the hearings here in Kitimat showed,  National Energy Board hearings are often mystifying to the public and the rules of procedure narrower than the kind you would find in a full public inquiry.

Environmental activists are determined to stop the bitumen pipeline.  First Nations are saying they haven’t been consulted properly on the bitumen pipeline.  There are  whole new questions arising: if there is a twinned natural gas and bitumen pipeline along the Northern Gateway route, how does that change the environmental and safety studies by government, Enbridge and the environmental groups? 

In the lawyers’ homes on Monday as the lawyers say “pass the turkey,” they will be contemplating two words: “Court challenge.”

Gitxaala First Nation settles with KM LNG

Energy

The Gitxaala First Nation has settled its dispute with the KM LNG (also known as Kitimat LNG) over it’s application before the National Energy Board for an export licence.

A letter from Robert Janes, representing the Gitxaala, was filed with the  NEB on Sept. 29, saying they were withdrawing their intervention and their motion for further hearings.

In original filings, the Gitxaala First Nation objected to a lack of consultation between the Crown and the First Nation as well as expressing concerns about the in adequacy of the Transport Canada TERMPOL process which is looking at the environmental and socio-economic effects of tanker traffic on the west coast. (TERMPOL is also part of the Enbridge Northern Gateway application).

One of the concerns of the Gitxaala that came in out in the June hearings in Kitimat was the effects of tanker wake on the coast.    Janes’ cross-examination of the KM LNG witnesses was one of the liveliest part of the Kitimat hearings.

No details of the settlement were released.

Related link: NEB adjourns KM LNG hearings as partnership talks to coastal First Nation

Harper’s decision to defund coast management group may blow back on Enbridge, lawyer says

Energy Environment Link

The West Coast Environmental Law blog says the decision by Prime Minister Stephen Harper to take funding away from the Pacific North Coast Integrated Management Area plan may actually blow back on Enbridge, delaying the Northern Gateway pipeline project for years.

 The cancellation of the funding is  perceived as part of the Conservative government’s aim of pushing the
Northern Gateway pipeline through no matter what the cost.   (Two cabinet ministers, Joe Oliver and James Moore are publicly endorsing the Northern Gateway, despite the fact the Joint Review Hearings don’t even begin until January 2012. It is unlikely either minister would make an endorsement like that without Harper’s approval.)

In the blog post, Why Harper’s shot at PNCIMA also hit Enbridge in the foot, lawyer Andrew Gage argues that Harper’s move,  apparently motivated by fears that the PNCIMA process could block the pipeline, fears created by Vancouver blogger Vivian Crause and her allies among PostMedia’s right wing columnists, will actually delay the pipeline for years because it negates the legal obligation to consult First Nations and thus will likely throw the entire process into the courts for years.

Litigation by any of the Coastal First Nation against the Enbridge Pipeline could pose a serious problem for Enbridge and its Northern Gateway Project.  Because of First Nations title and rights that are protected by Canada’s constitution, the federal government has a duty to “act honourably” and to consult and accommodate First Nations who have a “credible but unproven claim” of rights that may be adversely affected by a government decision (such as approving the Enbridge Northern Gateway Pipeline project and related tanker traffic.)

As a result,  anything that the federal government does in relation to consultations with the Coastal First Nations about tanker traffic and the Enbridge Pipeline that might be considered “dishonourable” creates legal uncertainty and problems for Enbridge.  So was the decision to withdraw from the current PNCIMA funding arrangement “dishonourable?”

Gage notes that the federal government is required by the Oceans Act, passed under the Liberals in 1997, to set up integrated management plans for all coastal areas of Canada, not just the northwest, a process that began in 2005.

Gage also points out that Enbrige has, in the past, participated in the process:

A wide range of stakeholders, including one seat for the conservation sector, provide input and consensus based advice on an Integrated Oceans Advisory Committee, but do not determine the outcomes of the PNCIMA process. Enbridge has itself participated on the Integrated Oceans Advisory Committee, along with representatives of the fish farming, commercial fishing, renewable energy, recreational fishing and tourism industries, and even sponsored an early workshop in the PNCIMA process.

In short, PNCIMA is created by the federal government, managed jointly by the federal and provincial governments and First Nations, but with efforts being made to involve a wide range of stakeholders. Because the PNCIMA is co-chaired by a federal government staff-member, and requires sign-off from the government, it was unlikely to have resulted in a complete ban on oil tanker traffic, although it might have placed restrictions on marine travel, or otherwise provided protection for the coast from shipping impacts.

However, progress was slow, in part due to the limits of federal funding available for the process.

He goes onto to say that the Harper government itself agreed to the now controversial foundation funding in 2010. That was before the attacks from Crause and the PostMedia’s business columnists reached a crescendo in recent weeks. But now there is no longer any mechanism that can be perceived as neutral that consult with First Nations and other northwest coast stake holders.

To flip-flop now, slightly more than a year before the process was supposed to wrap up, leaves the PNCIMA process without the funding that the government has acknowledged is required for a thorough planning process. It is also a slap in the face for the Coastal First Nations, the BC government, environmental organizations and industry stakeholders who have worked on this process for years.

Prime Minister Harper’s government may have believed that it was helping Enbridge and its Northern Gateway Pipelines by withdrawing from this funding agreement. But the resulting uncertainty, and the appearance that the federal government has acted less than honourably towards the Coastal First Nations, may well cause Enbridge huge legal head-aches in the future.

Editor’s note: As I said in this post, there appears to be a double standard, since what the Harper government, PostMedia’s columnists and Krause apparently are saying that it is only acceptable if billionaire capitalists spend their money on a conservative or pro-energy industry agenda, but it is not acceptable if a billionaire capitalist decides to spend his money to protect the environment.

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