Haisla Nation chief counsellor Ellis Ross has written a letter to Kitimat media sharply critizing the upcoming plebiscite on the Enbridge Northern Gateway project
Enbridge trying to buy Social Licence
This late in the day, a poll of its residents has no binding effect on the project. Next week, the District of Kitimat will seek the views of its residents on Enbridge’s Northern Gateway Pipeline Project. But to what end? If anything, it will lead to further uncertainty.
Deciding to hold a referendum at this late date is a slap in the face to all the work done by the Haisla Nation on this project. The Haisla Nation dedicated time and money toward testing Northern Gateway’s evidence and claims about safety and environmental protection, while the District stood by and did nothing.
The review process for this project has already left town, with the District taking no position on the project. Still undecided on what its views are on the project, the District now proposes to conduct a poll, instead of examining the facts in the JRP process. A poll to vote on a JRP report that we view as wrong to begin with including the flawed process itself!
Haisla Chief Counsellor Ellis Ross (Robin Rowland/Northwest Coast Energy News)Based on our participation, the Haisla Nation has determined the risks associated with Northern Gateway’s transport of diluted bitumen and condensate clearly outweighs any potential benefits. This is an informed conclusion, made after reviewing Northern Gateway’s application and evidence, and participating extensively in the Joint Review Panel process.
The Haisla Nation is doing what it can to protect what is left of its Territory. The Joint Review Panel Report has failed to properly address the concerns associated with the project, which is why the Haisla Nation has asked the Federal Court of Appeal to review the JRP’s Report. And the Haisla Nation is not alone in its challenge of the Report. Two other First Nations – Gitga’at and Git’xaala – and two environmental organizations have also challenged the Report.
Enbridge Northern Gateway is desperate for public support. That is why it is conducting a media and canvassing blitz in the District to sway voters. Will the District of Kitimat be able to form a position based on the outcome of such a plebiscite, which would have been bought by oil money, instead of based on participating in a fact finding process like the JRP? What is a yes vote that has been bought by Enbridge’s vast advertising machine worth? Does a purchased social licence hold any value at all? If it does have a price tag, it doesn’t come close to the value that the Haisla people place on what is left of Haisla Territory; especially if you look at what has happened in the Gulf of Mexico, at Kalamazoo and the effects lasting even to today in Prince William Sound (Exxon Valdez).
The Haisla Nation will not be swayed by a yes vote in the District of Kitimat plebiscite. If anything, our membership is angry that it is even happening at all. This project is wrong for the Haisla Nation and it is wrong for the Territory that Haisla’s and non Haisla’s call home. We have a choice. We have more than enough projects to sustain the region and we are already seeing the results.
There is also some controversy in Kitimat whether or not members of the Haisla Nation should be able to vote in the April 12 plebiscite. District officials noted that its has jurisdiction only within District boundaries. That means that members of the Haisla Nation who live within the boundaries of the District can vote, while Haisla who live in Kitamaat Village, which is a federally designated Indian Reserve cannot.
Earlier in the week, Ross was equally blunt in a Facebook posting aimed at the Haisla Nation where he said:
The Kitimat Council’s ‘vote’ is an insult to Haisla given the amount of time, effort and money we’ve spent since 09 and they come in at the last minute to cheer lead for Enbridge but he vote wont mean anything regardless of the outcome.
District of Kitimat can’t make this project happen even if its a yes vote. We will make our position known to both this vote and our reaffirmation of this project and its impacts to our rights and title.
Haisla members: remember what we’ve been saying about this in our membership meetings since 09.
We, the Gitxaala Nation, are vehemently opposed to Enbridge’s proposed Northern Gateway pipeline project because of the disastrous effects the shipment of heavy oil through our territory would have on our traditional way of life, economy, spirituality, and governance system….
What’s especially concerning is that our people have not been properly consulted about the impacts of the Northern Gateway Project, despite openly participating and co‑operating with the federal joint review panel process. We went out of our way to participate in Canada’s regulatory system, yet our rights have been completely ignored.
That was 25 years ago. The media loves anniversary stories and the Exxon Valdez look-backs and updates are already ramping up—right in the middle of the Kitimat plebiscite on the Northern Gateway pipeline and terminal project.
The hashtag #ExxonValdez25 is beginning to trend, based on a Twitter chat for Monday sponsored by the US National Oceanic and Atmospheric Administration.
The voters of Kitimat who will have to cast their ballots on the Joint Review Panel’s interpretation of the Northern Gateway proposal will find once again that the JRP tilted toward the industry and downplayed the lingering risks from a major tanker disaster—and that means neither the pro nor the anti side can be happy with the events that will be marked on March 24, 2014.
The Exxon Valdez accident is part of the Joint Review Panel findings that the economic benefits of Northern Gateway outweigh the risks. The JRP generally accepted the industry position, taken by both Northern Gateway and by ExxonMobil that Prince William Sound has recovered from the Exxon Valdez incident, something that is fiercely debated and disputed.
One area that is not in dispute is that the Exxon Valez disaster brought laws that forced energy companies to use double-hulled tankers. However, commercials that indicate that Northern Gateway will be using double-hulled tankers because the company respects the BC coast is pushing things a bit far, since those tankers are required by law.
Northern Gateway told the Joint Reivew Panel that
on a worldwide basis, all data sets show a steady reduction in the number
and size of oil spills since the 1970s. This decline has been even more apparent since regulatory changes in 1990 following the Exxon Valdez oil spill, which required a phase-in of double-hulled tankers in the international fleet. No double-hulled tanker has sunk since 1990. There have been five incidents of double-hulled tankers that have had a collision or grounding that penetrated the cargo tanks. Resulting spills ranged from 700 to 2500 tonnes
The Haisla countered by saying:
The Haisla Nation said that, although there have been no major spills since the Exxon Valdez spill in Prince William Sound, there were 111 reported incidents involving tanker traffic in Prince William Sound between 1997 and 2007. The three most common types of incidents were equipment malfunctions, problems with propulsion, steering, or engine function, and very small spills from tankers at berth at the marine terminal. The Haisla Nation said that, in the absence of state-of-the-art prevention systems in Prince William Sound, any one of those incidents could have resulted in major vessel casualties or oil spills.
The herring of Prince William Sound still have not recovered. Neither have killer whales, and legal issues remain unresolved a quarter of a century later. Monday is the 25th anniversary of the disaster, in which the tanker Exxon Valdez ran aground on Bligh Reef and spilled at least 11 million gallons of oil into the pristine waters of the sound.
Prince William Sound today looks spectacular, a stunning landscape of mountainous fjords, blue-green waters and thickly forested islands. Pick up a stone on a rocky beach, maybe dig a little, though, and it is possible to still find pockets of oil.
“I think the big surprise for all of us who have worked on this thing for the last 25 years has been the continued presence of relatively fresh oil,” said Gary Shigenaka, a marine biologist for the National Oceanic and Atmospheric Administration.
The legal dispute over the spill is still ongoing, with the Telegraph’s Joanna Walters noting:
[S]tate senator Berta Gardner is pushing for Alaskan politicians to demand that the US government forces ExxonMobil Corporation to pay up a final $92 million (£57 million), in what has become the longest-running environmental court case in history. The money would primarily be spent on addressing the crippled herring numbers and the oiled beaches.
“There’s still damage from the spill. The oil on the beaches is toxic and hurting wildlife. We can’t just say we’ve done what we can and it’s all over – especially with drilling anticipated offshore in the Arctic Ocean – this is significant for Alaska and people around the world,” she told The Telegraph.
An ExxonMobil spokesman then told The Telegraph, the energy sector’s standard response:
Richard Keil, a senior media relations adviser at ExxonMobil, said: “The overwhelming consensus of peer-reviewed scientific papers is that Prince William Sound has recovered and the ecosystem is healthy and thriving.”
But federal scientists estimate that between 16,000 and 21,000 gallons of oil from the spill lingers on beaches in Prince William Sound and up to 450 miles away, some of it no more biodegraded than it was at the time of the disaster.
Overall, the Exxon Valdez disaster was, as US National Public Radio reported, a spur to science. But NPR’s conclusion is the exact opposite of that from the Northern Gateway Joint Review Panel—at least when it comes to fish embryos.
Twenty-five years of research following the Exxon Valdez disaster has led to some startling conclusions about the persistent effects of spilled oil.
When the tanker leaked millions of gallons of the Alaskan coast, scientists predicted major environmental damage, but they expected those effects to be short lived. Instead, they’ve stretched out for many years.
What researchers learned as they puzzled through the reasons for the delayed recovery fundamentally changed the way scientists view oil spills. One of their most surprising discoveries was that long-lasting components of oil thought to be benign turned out to cause chronic damage to fish hearts when fish were exposed to tiny concentrations of the compounds as embryos.
It seems that some species recovered better than others from the oilspill.
For example, the recovery of the sea otter population has received widespread media coverage, but with widely divergent points of view. The more conservative and pro-industry writers point to the recovery of the otter population, while environmental coverage stresses the quarter century it took for the otter population to rebound.
Although recovery timelines varied widely among species, our work shows that recovery of species vulnerable to long-term effects of oil spills can take decades,” said lead author of the study, Brenda Ballachey, research biologist with the U.S. Geological Survey. “For sea otters, we began to see signs of recovery in the years leading up to 2009, two decades after the spill, and the most recent results from 2011 to 2013 are consistent with recovery
The Joint Review Panel generally accepted Northern Gateway’s and the energy industry’s evidence on the Exxon Valdez incident and concluded
The Panel’s finding regarding ecosystem recovery following a large spill is based on extensive scientific evidence filed by many parties, including information on recovery of the environment from large past spill events such as the Exxon Valdez oil spill. The Panel notes that different parties sometimes referred to the same studies on environmental recovery after oil spills, and drew different conclusions.
In its consideration of natural recovery of the environment, the Panel focused on effects that are more readily measurable such as population level impacts, harvest levels, or established environmental quality criteria such as water and sediment quality criteria.
The Panel finds that the evidence indicates that ecosystems will recover over time after a spill and that the post-spill ecosystem will share functional attributes of the pre-spill one. Postspill ecosystems may not be identical to pre-spill ecosystems. Certain ecosystem components may continue to show effects, and residual oil may remain in some locations. In certain unlikely circumstances, the Panel finds that a localized population or species could potentially be permanently affected by an oil spill.
Scientific studies after the Exxon Valdez spill indicated that the vast majority of species recovered following the spill and that functioning ecosystems, similar to those existing pre-spill, were established.
Species for which recovery is not fully apparent, such as Pacific herring, killer whales, and pigeon guillemots, appear to have been affected by other environmental factors or human influences not associated with the oil spill. Insufficient pre-spill baseline data on these species contributed to difficulties in determining the extent of spill effects.
Based on the evidence, the Panel finds that natural recovery of the aquatic environment after an oil spill is likely to be the primary recovery mechanism, particularly for marine spills. Both freshwater and marine ecosystem recovery is further mitigated where cleanup is possible, effective, and beneficial to the environment.
Natural processes that degrade oil would begin immediately following a spill. Although residual oil could remain buried in sediments for years, the Panel finds that toxicity associated with that oil would decline over time and would not cause widespread, long-term impacts.
The Panel finds that Northern Gateway’s commitment to use human interventions, including available spill response technologies, would mitigate spill impacts to ecosystems and assist in species recovery..
It is clear, however, from the local coverage in Alaska and from the attention of the world’s media that Prince William Sound has not fully recovered from the Exxon Valdez incident (it may yet in who knows how many years). Anger and bitterness still remains among the residents of Alaska, especially since the court cases are dragging on after a quarter century.
Those are the kinds of issues that Kitimat residents will face when they vote in the plebiscite on April 12. Just who do the people of Kitimat believe, those who say the chances for a spill are remote and the environment and the economy will quickly recover? It probably depends on whether or not you consider 25 years quick. Twenty-five years is quick in geological time but it is a third or a half of a human life time.
As for the residents of Kitamaat Village, and probably many people in Kitimat, Haisla Chief Counsellor Ellis Ross summed it up in a Facebook posting on Sunday
If this happens in Kitamaat, all those campaigning for Enbridge will pack up and leave for another coastline to foul. Haisla don’t have much of a choice. We would have to stay and watch the court battles on who should pay what.
Ross is right. Whether it’s Prince William Sound or Douglas Channel, the people who live the region are stuck with the mess while the big companies walk away and the lawyers get rich.
The federal government’s main consultation with First Nations on the Northern Gateway Joint Review Panel report is limited to just three simple questions that had to be answered within 45 days, according to documents seen by Northwest Coast Energy News.
Cover of Volume 1 of the Joint Review Panel ruling on Northern Gateway
That despite the fact that the first volume of the JRP report “Connections” is 76 pages and the second volume “Considerations” is 418 pages including the 209 recommendations and appendices and came after two years of hearings and tens of thousands of pages of evidence.
On Dec. 6 and again on Dec. 16, 2013, just prior to the release of the Joint Review Panel report, Brett Maracle, Crown Consultation Coordinator at the Canadian Environmental Assessment Agency for the Northern Gateway project wrote to the First Nations potentially affected by Northern Gateway, saying their response had to be filed within 45 days of the release of the JRP. Since the report was released on December 19, 2013, that made the initial deadline January 31, 2014.
The letter also told the First Nations that if they wanted their positions included in the “Crown Consultation Report” that would be part of the package on Northern Gateway presented to the federal cabinet, that position had to be limited to just two to three pages “given the number of groups involved” with a final deadline of April 16, 2014.
Maracle’s letters used the term Phase IV to define the post JRP consultations, implying there were three earlier stages of consultation, something many First Nations have disputed, especially since the Harper government had earlier maintained that the JRP itself was the constitutionally mandated consultation.
The cabinet has until June 19, 2014, 180 days after the release of the report to approve the issuing of the federal permits for the Northern Gateway project. Consultation with First Nations on projects such as the Northern Gateway is required by the Constitution and has been upheld by the Supreme Court of Canada.
The three questions outlined in the letter were:
Does the Report appropriately character the concerns you raised during the JRP process?
Do the recommendations and conditions in the Panel Report address some/all of your concerns?
Are there any “outstanding” concerns that are not addressed in the Panel Report? If so, do you have recommendations (i.e proposed accommodation measures) how to address them?
Consultation on implementation
The third question appears to confirm what most political observers have said, approval of the Northern Gateway by the Harper cabinet is a a forgone conclusion, since Maracle speaks of “accommodation measures.” When the JRP approved the Northern Gateway project, the panel said that Enbridge’s proposed “mitigation” measures in case of a spill were adequate, something environmental groups and First Nations are now disputing in court.
It appears from the correspondence seen by Northwest Coast Energy News, that the federal government will only consider further specific consultations with First Nations after the approval of the Northern Gateway and only then on the implementation and construction process, rather than consulting on the project as a whole.
The Haisla have filed a document in response to the JRP that notes that
The Haisla Nation needs to understand Canada’s views of the role that future federal decisions might play for the proposed project. In its December 12, 2013 to Mr. Maracle, the Haisla Nation asked the federal government to provide a comprehensive list of the regulatory permits which would be issued the the federal government decision-makers in Haisla Nation Territory in the event the proposed project is approved and describe the consultation process that would occur prior to decisions being on those regulatory permits, within 45 days of the issuance of the JRP Report.
Mr. Maracle’s January 29, 2014 [reply] suggests that the only future federal decisions on the proposed project which may entail consultation are specific watercourse crossing and fish habitat destruction permits issued by Fisheries and Oceans Canada.
Whole-of-government
One of the problems reaching back to long before the Joint Review Panel hearings began is that the Harper government policy was what they called a “whole-of-government” approach in its consultations with First Nations, saying: “The Crown is open to discussing how consultation with the framework provided will be carried out.”
In their repose, the Haisla say the federal government never defined how the “whole-of-government” approach to First Nations was going to work and noted:
What Canada should have realized is that it has a very real obligation to consult with the Haisla Nation at the deepest end of the consultation spectrum that cannot be pigeon-holed into a one size fits all approach.
Further, the term whole-of-government is misleading, as this approach actually prohibits the majority of government from engaging in consultation.
The Haisla then say: “Documents we have obtained under an Access to Information Request clearly indicate individual departments were asked not to communicate directly with the Haisla Nation.”
The response goes on to say:
Further questions at federal government witnesses during the JRP process confirmed that federal departments had not met with the Haisla Nation since the commencement of the JRP process. While these witnesses were reluctant to confirm that they had been prohibited from meeting with us, they repeatedly referred to the “whole-of-government” approach to consultation as their reason for not meeting.
Canada’s “whole-of-government” approach clearly limited engagement to a strict process with no opportunity for real engagement.
Earliest stages
The Haisla are telling the Harper government:
It is clear that the Haisla Nation that we are the very earliest stages of consultation with Canada about the proposed project….It is clear to the Haisla Nation that the 45-day period within which Canada has unilaterally determined face-to-face meetings with all the Aboriginal groups potentially affected by the proposed project will occur is not an adequate amount of time to complete a meaningful consultation process.
The Haisla Nation are calling on the federal cabinet to postpone its decision on the Northern Gateway project to allow time for adequate consultations with First Nations, according to the Haisla response to the Joint Review Panel, seen by Northwest Coast Energy News.
The Joint Review Panel report and recommendations were released on Dec. 19, 2013 and the cabinet has 180 days from that point to recommend approval of the project.
The Haisla argue that Section 54 of the National Energy Board act allows the Governor-in-Council, the federal cabinet, to extend the timeline if it wants to, if recommended by the Minister of Natural Resources.
So far, the Harper government has refused to extend the deadline. The Haisla response document says Chief Counsellor Ellis Ross spoke to Minister of Natural Resources Joe Oliver on the telephone requesting the extension, but, according to the document, all Oliver did was point to the legislation that calls for the 180 day response to a joint review report.
The Haisla response document also has a long lists of what the Haisla say are flaws in the Joint Review Panel report.
Consultations
In correspondence with the Haisla, Brett Maracle, Crown Consultation Coordinator at the Canadian Environmental Assessment Agency for the Northern Gateway project, says:
the process set out by the Government of Canada in the Aboriginal Consultation Framework was finalized after receiving and carefully considering input from Aboriginal groups….The Government of Canada believes the process outlined in the Aboriginal Consultation Framework provides for a deep level of meaningful consultation with Aboriginal groups with Phase IV being the final step prior to a decision being made on the Project.
The Haisla dispute there has been any “deep level of meaningful consultation,” citing in the document a long list of attempts to engage the federal government with little or no response.
In their response, the Haisla Nation Council says:
Canada, has, to date, refused to engage in meaningful consultations with the Haisla Nation. Instead Canada has unilaterally imposed what it calls a “deep level meaningful consultation” process which is fundamentally flawed for a number of reasons…
The document lists attempts by the Haisla to engage with ministers and government departments including requests for a meeting with then Environment Minister Peter Kent, prior to the opening of the JRP formal hearings in Kitamaat Village in January 2012. Although the Haisla requested a meeting with Kent, several times in 2011, no meeting ever occurred. It was not until April 19, 2012, four months later that Kent replied to the Haisla saying he had asked the President of the Canadian Environmental Assessment Agency to meet with the First Nation prior to the start of the JRP hearings. However, it was apparently impossible to schedule such a meeting in December, 2011.
To which the Haisla reply:
For over six years, Canada ignored Haisla Nations requests for meetings. Once the JRP’s oral hearings process commenced, Canada further closed the door on any opportunity for a meeting until the JRP Report was release. This refusal to consult was baseless. The ongoing JRP process was not a rational or justifiable basis for Canada’s refusal to consult…
Canada has yet to meet with the Haisla Nation to discuss the proposed project, other than to tell the Haisla Nation it is only engaging through the JRP process for now. This is not consultation. It is, perhaps, at best an initial step towards a consultation process.
Ignoring the Eyford report
Natural Resources Minister Joe Oliver (front far right) answers questions after his news conference at the Northwest Community College Long House, March 19, 2013. Douglas Eyford is standing behind Oliver. (Robin Rowland/Northwest Coast Energy News)
In March 2013, Natural Resources Minister Joe Oliver flew to Terrace for a photo op to announce the appointment of Douglas Eyford to consult First Nations on the Northern Gateway project. Oliver then flew back to Ottawa without meeting anyone in the region. Eyford’s report Forging Partnership Build Relationship was released in November, 2013.
The Haisla say:
Mr. Eyford’s Report recommended that Canada should consider undertaking early engagement to address Aboriginal interests that may not be dealt within a regulatory process. The Haisla Nation has been seeking such early engagement from Canada since the proposed project was first announced.
Mr. Eyford’s Report also recommended that Canada should engage and conduct consultations n addition to those in regulatory processes, as may be required, to address issues and facilitate resolutions in exceptional circumstances. The Haisla Nation also asked for this, identifying early that this proposed project was an exceptional circumstance due to the significant potential impacts on the Haisla Nation.
The Haisla Nation Council response was sent to Brett Maracle, Crown Consultation Coordinator at the Canadian Environmental Assessment Agency for the Northern Gateway project. The Haisla also sent copies of the response to Joe Oliver, the Minister of Natural Resources, Gaetan Caron, Chair of the National Energy Board, Leon Aqlukkaq, Minister of the Environment, Bernard Valcourt Minister of Aboriginal Affairs and Northern Development, Gail Shea, Minister of Fisheries and Oceans, BC Premier Christy Clark, Steve Thomson, BC Minister of Forests, Lands and Natural Resources and Mary Polak, BC Minister of the Environment.
Members of the Northern Gateway Joint Review Panel, left to right, Kenneth Bateman, chair Sheila Leggett and Hans Matthews make notes at the June 25, 2012 hearings at the Haisla Recreation Centre, Kitamaat Village. A map of Douglas Channel can be seen behind the panel. (Robin Rowland/Northwest Coast Energy News)
The Haisla Nation in their response to the Crown on the Northern Gateway Joint Review Panel details four studies, three Canadian and one American that were released after the Joint Review evidentiary deadline had passed, evidence that the Haisla say should be considered in any consideration of the Northern Gateway pipeline, terminal and tanker project. (The American report from the National Oceanic And Atmospheric Administration was released after the JRP final report)
JRP chair Sheila Leggett’s constant citing of rules of procedure and her stubborn refusal to consider new evidence and studies in a dynamic situation that was changing rapidly was one of the reasons that many people in the northwest said the JRP had lost credibility.
The Haisla say: “It is incumbent upon Canada to consider and discuss the information in these reports as part of a meaningful consultation process…” and then lists “key findings” that have potential impacts on aboriginal rights and title:
The West Coast Spill response for the government of British Columbia which found:
Most oil spilled into the marine environment cannot be cleaned up
There is a disconnect between planning and actual repose capability
Canada’s spill response is “far from world class.”
The Transport Canada Ship Oil Spill Preparedness and Response study:
Douglas Channel will go from low risk to high risk for pills if the project goes ahead
The study recommends preparation for a “true worst case discharge” rather than “the credible worst case discharge” as proposed by Northern Gateway
Canada needed a much more rigorous regulatory regime covering tankers.
The joint federal government technical report on the properties of bitumen from the Canadian Oil Sands:
There are uncertainties on how diluted bitumen would behave in a marine environment.
Northern Gateway did not provide adequate information about sediment levels to allow for proper study of interaction with diluted bitumen
Dispersant may not be effective.
Weathered diluted bitumen would “reach densities at which it will sink freshwater without mechanical or physical assistance.”
The US National Oceanic And Atmospheric Administration report on Transporting Alberta Oil sands:
Diluted bitumen has “significant differences from conventional crudes.’ (The JRP used conventional crude as a benchmark in its findings)
The physical properties of diluted bitumen “fluctuate based on a number of factors.
Pipeline operators may not have detailed information related to products in the pipeline at the time of a spill
There is a lack of experimental data on the weathering behaviour of oil sands product which limits the ability of spill response organizations “to understand and predict the behaviour and fate of oil sands products in freshwater, estuarine and saltwater environments.”
The Haisla Nation have filed a challenge to the Northern Gateway Joint Review Panel with the Federal Court of Appeal requesting that court quash the JRP findings.
The Haisla suit comes at a time that a coalition of environmental groups and the Gitxaala Nation are asking for court reviews of the JRP. The court challenge also comes at time when the District of Kitimat Council has maintained its position on an April 12 plebiscite asking the residents of Kitimat if they approve of the Joint Review Panel’s findings on the Northern Gateway project.
Late Wednesday, the Gitga’at Nation at Hartley Bay also announced they are challenging the JRP.
The Haisla argument filed by Jennifer Griffiths of Donovan and Company, representing the Haisla Nation, points to the Scope of Factors governing the JRP saying the proponent (Enbridge Northern Gateway) must “provide a sufficient description of the local setting to allow the Panel, other regulators, the public and others to clearly understand the rationale for environmental assessment decisions.”
The application asks that courts order that:
the findings be referred back to the JRP for further consideration
the Panel obtain and consider the necessary information about marine environment and freshwater and marine fish habitat
the Panel provide its assessment of effects of the project on Haisla Nation cultural heritage
the court direct the Panel to provide it assessment of the adequacy of Crown consultation to date
the Panel reconsider its public interest assessment after considering adequacy of consultation, impacts on cultural heritage and impacts on aboriginal rights and interests
that the JRP report “as issued on December 19, 2013, does not contain the recommendations required” under the Canadian Environmental Assessment Act.
In the Haisla challenge, the Nation argues the Panel erred by:
making findings about potential impacts to the marine environment and freshwater and marine fish habitat without having before it information it was required to consider under the Scope of Factors
failing to assess the environmental effects of the project on Haisla Nation cultural heritage
failing to provide a rationale for its conclusion that there would be no adverse environmental effects on cultural heritage
failing to provide a rationale for its conclusions regarding significant adverse effects, including but not limited to the conclusion that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions are very low
failing to provide a summary of comments received from interested parties on potential conditions
concluding that a large spill from pipeline facilities, terminal or tankers is unlikely
concluding that, after mitigation, the likelihood of significant adverse environmental effect resulting from the project malfunctions or accidents is low
fails to justify its conclusion that a large spill from pipeline facilities terminal or tankers is unlikely
fails to justify its conclusion that, after mitigation, the likelihood of significant adverse effects resulting from the project malfunctions is very low.
Fails to provide a rationale for the conclusion that there would be no adverse environmental effects on cultural heritage
The Haisla challenge also says the Joint Review Panel failed “to conduct its assessment in a precautionary manner” when it recommended:
that the project is not likely to result in significant adverse effects with respect to freshwater fish and fish habitat
that project is not likely to result in significant adverse effects with respect to marine fish and fish habitat
recommended that the project is not likely to cause significant adverse environmental effects in Canada on cultural heritage
concluded that a large spill from the pipelines, terminal or tanker is unlikely
concluded that the project is in the public interest.
The Haisla challenge also argues that the “Panel failed to observe procedural fairness in the hearing and deliberation” by:
failing to extend timelines a reasonably requested by parties
failing to consider all the information available to it about the large spill of oil as a result of the rupture of the Enbridge pipeline in Kalamazoo, Michigan
failing to assess impact on aboriginal rights or interests in its public interest assessment
failing to fully consider the submission of the Haisla Nation on potential conditions for the project.
The challenge also deals with the issue of cultural modified trees, especially the JRP’s finding that “impacts to Haisla Culturally Modified Trees can be mitigated” and by concluding “that impacts to Haisla Nation Culturally Modified Trees can be mitigated by including a condition that Northern Gateway file a plan to protect and manage post-1846 CMTS.” The part of the challenge dates back to time when Enbridge surveyors entered Haisla traditional territory without permission and as part of the survey cut down or damaged cultural modified trees.
On the afternoon of January 22, the Gitga’at Nation at Hartley Bay also announced they were filing a challenge to the JRP.
A news release from the Gitga’at says “the Joint Review Panel erred in law, including by failing to properly consider all evidence provided by the Gitga’at, whose culture and way of life would be severely threatened by supertanker traffic, shipping bitumen from Alberta and importing condensate from Asia and elsewhere.”
The application states that while the Gitga’at are resilient, they are also highly vulnerable to threats to their local ecosystems and community well being from impacts cause by increased tanker traffic. The negative impacts to Gitga’at society, culture, identity, health, and economy will only increase in the event of an oil spill, with the impacts increasing with the size and consequences of the spill. Traditional foods harvested from the sea comprise the largest portion of the Gitga’at diet.
On January 16, Ecojustice lawyers, representing ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed the lawsuit seeking a court order to prevent Cabinet from relying on the flawed JRP report to approve the proposed pipeline.
“The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment,” said Karen Campbell, Ecojustice staff lawyer. “The panel made its recommendation despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment.”
The humpback whale recovery strategy identifies toxic spills and vessel traffic as two threats to the iconic species’ survival and recovery — all relevant information that should have been considered during the review hearings.
At the January 20 council meeting, Peter Ponter asks what happened to the District of Kitimat’s original motion on neutrality. (Robin Rowland/Northwest Coast Energy News)
The District of Kitimat Council is in chaos. We’re not referring to Monday’s chaotic meeting where often it was hard to figure out what Councillors were saying and where they were going.
We are referring to “Chaos” as it is defined in physics, “sensitive dependence on initial conditions,” known to most people as the “butterfly effect” (the exaggerated notion that a butterfly flapping its wings in one place could cause a storm in another place). Or we could suggest that Kitimat Council has a critical case of bad karma that is now coming back to haunt them.
How can you trust a council that doesn’t understand and follow its own motions?
District Council claims it is neutral on the Enbridge Northern Gateway project. That is wrong.
District Council decided, in violation of its own resolutions, to do absolutely nothing about the Northern Gateway Project until they have to. Doing nothing is not neutrality. Doing nothing is a default notion that actually tilts council in favour of the Enbridge Northern Gateway project. Doing nothing has meant that Council has become incapable of dealing with Gateway related issues within its own jurisdiction because they have no idea of what is going on.
A tale of two motions
So what were the initial conditions? As Peter Ponter pointed out in his presentation to Council Monday night, the original motion on neutrality called on Council to take an active part in the Joint Review proceedings.
”I move that the Mayor and Council of District of Kitimat go on record neither opposing nor supporting the Enbridge Pipeline Super Tanker Proposal and that we wish to, as a Mayor and Council, with our community, take part in the 1-2 year environmental assessment process and the Joint Review Panel to learn and understand whether this will be a beneficial project to Kitimat, the Northwest and British Columbia.
That motion was carried unanimously.
So then what happened? Nothing. The District of Kitimat did register as a government participant in the proceedings but did nothing to actually actively participate “to learn and understand whether this will be beneficial project to Kitimat….”
With the 2011 election over, the new council, sitting for the first time in 2012, was asked to reaffirm its position. At that time, Phil Germuth presented a motion that council survey the residents of Kitimat to find out what their position was on the Northern Gateway project. Our report here and Kitimat Daily’s report here.
At the time Councillor Mario Feldhoff said:
“The perfect time for the community to indicate whether they support is to reflect upon the JRP report. Do we agree with their submissions? Otherwise, our emotions are getting ahead of us and we may be perceive as being late in the game but, we may have, from my perspective, informed comment from the citizenry after they have had a chance to read a report from the JRP would be preferable in my opinion, in opposed to getting a sense of how people feel about things right now.”
So, in fact, there was not one neutrality motion as Council now maintains.
There were two separate motions, on two separate aspects of neutrality. The first called for council to remain neutral but to participate in the Joint Review Panel. The second called for council to survey the community on their feelings after the completion of the JRP.
The two motions did not, repeat not, cancel each other out. But that was, in effect, what happened. The council seems to have decided that Feldhoff’s comment was actually a motion, and that after that January 2012 meeting, they should do absolutely nothing but wait until the Joint Review Process was complete.
Every time after January 2012, when council was asked about anything, they said we are waiting for the Joint Review Process to be complete, even though council had unanimously passed a motion saying it would take part in the JRP. That is proof of Kitimat Council’s incompetence.
We will repeat that in the long history of regulatory hearings, public inquiries and even coroners inquests there have always been a role for neutral parties, represented by competent and properly instructed counsel, who vigorously look out for their client’s interests, without taking an advocacy position on a matter before the tribunal. The District of Kitimat could have, in fact, should have, actively participated and where necessary in the Joint Review and have its representatives ask tough questions of every side on all matters relevant to the District of Kitimat.
Participation didn’t happen, and, unfortunately, that is now all water under the Kitimat River Bridge.
A gift of prophecy
District of Kitimat Council listens to delegates plea for a simple question on the upcoming plebiscite. (Robin Rowland/Northwest Coast Energy News)
The bigger problem is that a majority on Kitimat council believes that it has the gift of prophecy, naively believing that the Joint Review Panel understands all mysteries and all knowledge. A majority of members on Kitimat council have blind faith, believing that the JRP can safely move pipelines across mountains.
With its gift of prophecy, Kitimat Council believes that all is right with the Joint Review Panel, that its 209 recommendations are gospel and thus council approves a vote question not about the Northern Gateway project but the Joint Review.
Faith is the operative word, for apart from dropping into listen from time to time, council did not participate in the proceedings in any way, and thus did not experience the many flaws in the Joint Review process that led some people to say as early as the middle of 2012 that the JRP had no credibility.
There are already court challenges to the Joint Review Panel. (Update. A media count as of January 23 says there are now 10 court challenges to the JRP)
Most important for Kitimat, a challenge filed by the Haisla Nation which, among the many flaws it finds with the JRP report, says the JRP improperly concluded that a large spill is unlikely either from the pipeline itself, the terminal facilities or the oil tankers tasked with navigating B.C.’s coastal waters.
It doesn’t do much for the already strained relationship between the District of Kitimat and the Haisla Nation that Council continues its uncritical support of the JRP while the Haisla are challenging it in court. That the Haisla motion to the Federal Court of Appeal includes challenges to the procedural unfairness of the JRP proceedings.
The Gitxaala First Nation says Joint Review Panel ignored issues surrounding aboriginal rights and title.
A coalition of environmental groups have told the federal court there was not enough evidence before the JRP to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on the environment; one key part of the suit is the fact that the JRP refused to consider the federal humpback strategy for Douglas Channel.
Although it is unlikely that the courts will throw out the Joint Review findings before the April vote, it might just happen. At that point, a plebiscite question based on the JRP would look pretty silly.
Who runs the Kitimat River?
We now come to the long term consequences of a do nothing council. We have to ask if the District of Kitimat Council will become lame ducks, at least in some part of town, because they have stood by and, in their misplaced faith in the National Energy Board, ceded the right to decide what happens in Kitimat to the NEB?
According to a report in the Toronto Star, using the new rules under the omnibus bills, this week the National Energy Board approved expansion of the Enbridge Line 7 pipeline in southern Ontario, without a hearing and without notifying Hamilton, the municipality involved (the pipeline actually goes through Hamilton) because the municipality was not “affected in any way” by the project. Since the media got on to the story, Enbridge has kindly said to Hamilton “we have heard and understood it and assured them directly that we will include them in all future consultation and activity on this project.”
There is already one pipeline along the west bank of the Kitimat River, Pacific Northern Gas. If the LNG projects go ahead, as well as more molecule traffic on the PNG pipeline there will be the Coastal Gas Link serving Shell and the Pacific Trails Pipeline serving Chevron and Apache. If it goes ahead, the Northern Gateway Pipeline will mean four pipelines along the west bank of the Kitimat River.
Four pipelines along the banks of the Kitimat River all under the benign eye of the National Energy Board in Calgary since they have “expertise” on pipelines and water courses.
The NEB has shown recently it doesn’t have much respect for municipalities. While the actual regulations under the DFO-NEB deal are likely to be unclear for some time, we know that what the NEB’s mandate is, to promote the oil and gas industry in this country, not to protect rivers and streams. So if the people of Kitimat, especially those who fish the Kitimat River or work in the Service Centre are in the way of what NEB bureaucrats in Calgary decide is best for us and those three, maybe four, pipelines, well too bad, eh? The NEB has the mandate to act in the national and public interest, not the residents of Kitimat.
Kitimat Council with its blind faith in the National Energy Board may very likely be a case of be careful what you wish for, sitting uselessly in the chambers at Northwest Community College while the NEB in Calgary carves up the District’s jurisdiction and does what it thinks is best for the oil patch.
Thus the Council deliberations become a sounding brass or a tinkling cymbal, meaning nothing.
On January 16, Fisheries and Oceans issued a statement “clarifying” its role after signing an agreement with the National Energy Board on fisheries protection along pipeline routes, saying DFO “remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.”
DFO says there is little difference between its agreement with the NEB and collaborative agreements with the provinces.
Fisheries and Oceans Canada has established a collaborative agreement with the National Energy Board that will help eliminate overlap and duplication during regulatory reviews while maintaining a strong regime to manage threats to fish and fish habitat.
Fisheries and Oceans Canada remains responsible for fisheries protection, including the issuance of Fisheries Act authorizations.
Our collaborative arrangement builds on the decades of training, experience and expertise of NEB biologists in assessing the potential environmental impacts of development projects, including regarding fish and fish habitat.
These arrangements will yield a number of benefits:
• Ensuring regulators focus on the greatest threats to fish and fish habitat;
• Making the best use of available resources; and
• More efficient approval processes.
The Policy and Operational Guidelines that are followed by DFO staff and anyone else involved in these matters are available on Fisheries and Oceans Canada’s website.
The National Energy Board is best placed to deliver regulatory review responsibilities under the Fisheries Act for activities relating to federally regulated energy infrastructure (such as pipelines).
The Memorandum of Understanding between Fisheries and Oceans Canada and the National Energy Board will enable the NEB to:
• Review proponent applications for impacts to fish and fish habitat;
• Assess appropriate measures to avoid and mitigate impacts to fish and fish habitat;
• Include measures to avoid and mitigate impacts as conditions of licences, orders or certificates issued by the NEB; and
• Assess the acceptability of proponent offsetting plans when authorization is required.
Over the years, DFO has established similar arrangements with some Provinces and with Conservation Authorities.
In all cases, the standards for fisheries protection are established by DFO and the Fisheries Act Authorizations continue to be done by DFO.
Skeena Bulkley Valley MP Nathan Cullen says at least two of the Northern Gateway Joint Review Panel’s 209 conditions may already be outdated.
In a news release January 15, 2013, Cullen said, “The requirement of $950 million in spill insurance was recently called into question as reports surfaced of cleanup costs at the sites of Enbridge’s 2010 Michigan spill surpassing $1.035 billion.”
Cullen is referring to a study by Environment Canada Emergencies Science and Technology,Fisheries and Oceans Canada Centre for Offshore Oil, Gas and Energy Research and Natural Resoures Canada on bitumen that was completed in November and released this week.
The study found
. Like conventional crude oil, both diluted bitumen products floated on saltwater (free of sediment), even after evaporation and exposure to light and mixing with water;
. When fine sediments were suspended in the saltwater, high-energy wave action mixed the sediments with the diluted bitumen, causing the mixture to sink or be dispersed as floating tarballs;
(The use of the term “tarball” in this report follows convention in the literature and refers to the consistency of floating, heavily-weathered oil. It does not describe the chemical composition of the product.)
. Under conditions simulating breaking waves, where chemical dispersants have proven effective with conventional crude oils, a commercial chemical dispersant (Corexit 9500) had quite limited effectiveness in dispersing dilbit;
. Application of fine sediments to floating diluted bitumen was not effective in helping to disperse the products;
. The two diluted bitumen products display some of the same behaviours as conventional petroleum products (i.e. fuel oils and conventional crude oils), but also significant differences, notably for the rate and extent of evaporation.
The Panel acknowledges the variety of opinions from experts regarding the behavior and fate of oil spilled in aquatic environments. These experts generally agreed that the ultimate behavior and fate of the oil would depend on a number of factors, including the volume of oil spilled, the physical and chemical characteristics of the product, and the environmental conditions at the time.
The Panel finds that likely oil behaviour and potential response options can be predicted from knowledge of the type of oil spilled and its physical and chemical characteristics. Details of oil behaviour and response options cannot be specified until the actual circumstances of a spill are known.
The Panel is of the view that, if placed along a spectrum of: tendency to submerge; persistence; and recovery difficulty, dilbit would be on the higher end of the spectrum, similar to other heavy oil products.
The Panel accepts evidence from previous spills showing that, in response to circumstances at the time, the behaviour of heavier oils, including conventional oils and synthetic crudes, can be dynamic. Some oil floats, some sinks, and some is neutrally buoyant and subject to submergence and overwashing.
Although the project would transport different types of oil, the majority of the evidence presented during the hearing process focussed on whether dilbit is likely to sink when spilled in an aquatic environment. In light of this, the Panel has chosen to focus its views on dilbit. The Panel heard that the fate and behaviour of dilbit has not been studied as much as that of other oils.
Although there is some uncertainty regarding the behavior of dilbit spilled in water, the Panel finds that the weight of evidence indicates that dilbit is no more likely to sink to the bottom than other heavier oils with similar physical and chemical properties.
The Panel finds that dilbit is unlikely to sink due to natural weathering processes alone, within the time frame in which initial, on-water response may occur, or in the absence of sediment or other particulate matter interactions. The Panel finds that a dilbit spill is not likely to sink as a continuous layer that coats the seabed or riverbed.
“It hasn’t even been a month since the JRP released their 209 conditions, and it seems like we’re already seeing some of them become obsolete,” Cullen said.
“Throughout the review process, the JRP continually ignored the situation in Michigan as it unfolded before our eyes. They saw the spill caused by Enbridge’s negligence, which was worsened by Enbridge’s incompetence, and how it brought untold damage to the local ecosystem and cost over $1 billion US. But the 209 conditions didn’t reflect what we learned about Enbridge’s history or its culture, or what we’ve learned about diluted bitumen at all.”
The Joint Review process was set up to deliver a positive verdict, according to Cullen, regardless of what the real life case studies in Michigan had already shown. “To say that it won’t cost as much – if not more – to respond to a spill in a remote corner of northwestern BC during winter than it was in Michigan in the middle of July is ridiculous,” Cullen said.
“What’s even more astonishing is that we asked repeatedly for these studies on the behaviour of diluted bitumen in the marine environment to be part of the Joint Review Panel’s assessment. That the government waited until after the JRP had given its conditional yes to release these findings is not only appalling but also highly suspect.
Cullen says there are two key questions that the Harper government now must answer. “What kind of protection is the government providing when it lowballs on the insurance for oil spills? And what kind of oversight is it giving Canadians when the verdict is given before the evidence is released?”
What’s more, the Council set a sorry precedent Monday and undermined their ability to have a constructive debate on any contentious issues in the future.
Here’s what went wrong.
With the new year, Council is operating under new rules of procedure that allow discussion of an issue to take place without a motion on the floor.
The idea was, apparently, to allow members of Council to rationally and collegially discuss an issue and perhaps come to a consensus before a motion is presented, debated and voted.
That’s not what happened Monday night.
There was a staff report before Council with suggestions for either a simple yes or no vote for the Northern Gateway plebiscite or a series of questions for the voters to decide.
Councillor Rob Goffinet asked Council to discuss the issue under the new procedure. There was no motion on the floor.
The first part of the debate was about a question many have been asking. What good will a plebiscite do if all the power is in the hands of the federal government? Councillors pointed out that there was promise to “survey” the people of Kitimat after the Joint Review Report and that it was also a good idea to find out what the people of Kitimat were thinking.
Then, after only a few minutes of discussion, Councillor Mario Feldhoff introduced his motion outlining his preferred version of the plebiscite question; therefore preempting any further general discussion and, in effect, hijacking the council session.
At that point, the actual discussion by Council of one of the most important questions in Kitimat history had been going on for less than fifteen minutes.
Noting that the Council has been operating under the new rules for just three weeks, Mayor Joanne Monaghan then had to set a precedent.
What Monaghan should have done was act as a neutral Speaker and rule Feldhoff’s motion premature and out of order. At very least, she should have asked Feldhoff to withdraw the motion to allow general discussion to continue and perhaps allow a consensus to emerge.
By permitting Feldhoff’s motion to go to the floor, Monaghan undermined the spirit of the new council procedures.
It is not just Monaghan who is to blame for this. Feldhoff is an experienced councillor and a good parliamentarian. He always prepares carefully and often presents his own motions. While those motions are not always successful, presenting those motions allow Feldhoff to pilot the agenda on an issue. The other members of Council who have worked with Feldhoff for years should have anticipated this manoeuvre and, when he presented his motion, raised a point of order, telling Monaghan the motion was a violation of the spirit of the new discussion procedures.
The other failure is that those council members who preferred a simple question, as far as the reporters could tell from the debate, failed to have their own motions ready, instead depending on the staff recommendations. Again, those council members should have anticipated Feldhoff’s manoeuvre and prepared with their own motions.
The ideal, of course, was for Council to spend the time to hash out the best question on Northern Gateway, even if the debate went into the wee hours of the morning. Instead the debate was on the wording and intent of the Feldhoff motion, which reflects his belief , stated last week, that the Joint Review Panel process was valid, something many residents of Kitimat disagree with, since they consider the JRP process to have been far from fair.
The ballot question, as moved by Councillor Mario Feldhoff is:
Do you support the final report recommendations of the Joint Review Panel of the Canadian Environmental Assessment Authority (sic) and the National Energy Board, that the Enbridge Northern Gateway project be approved subject to 209 conditions set out in Volume 2 of the JRP’s final report?
Eligible residents will have the choice of voting yes, no or undecided.
There are too many questions wound up in the Feldhoff motion. There are those who support Northern Gateway and those who oppose it. There are those on both sides who have strong reservations about the Joint Review Process. There’s the big question of whether or not the Harper government will actually bother to rigorously enforce the 209 conditions. (The test for that will be in the upcoming federal budget, and whether or not there is increased funding for the agencies responsible for the conditions. Since Finance Minister Jim Flaherty is determined to balance the budget prior to the 2015 election, that is highly unlikely)
Council must revisit the plebiscite question at next Monday’s meeting and come up with a consensus on a proper question, even if it means the debate continues until the sun comes up Tuesday morning (and remember this is January).
Council must also set proper procedures so that a wide ranging discussion, as envisioned in the new procedures, aren’t unnecessarily and abruptly halted by a premature motion.
What about the JRP?
In his statement to Council on January 6, and in his motion on the plebiscite question, Councillor Mario Feldhoff is wrongly giving the Canadian Environmental Assessment Agency prime of place in the Northern Gateway Joint Review Panel. He points out, correctly that the CEAA has rejected the Prosperity Mine twice and uses that to validate the finding of the Joint Review Panel.
However, there is no evidence that three members of the panel have anything to do with the Environmental Assessment Agency. The biographies say that Sheila Leggett “ has been a member of the National Energy Board since 2006 and is currently the vice-chair of the National Energy Board.” Kenneth Bateman, according to the biography, has also been a member of the National Energy Board since 2006. As for the third member, Hans Matthews, he is a mining executive who works with First Nations on resource issues. None of the biographies of the three mention any connection with the Environmental Assessment Agency.
There is one note at the bottom of the bio page that says: “The Panel is supported by a group of staff called a Secretariat. The Secretariat is made up of both National Energy Board and Canadian Environmental Assessment Agency staff.”
So while the Joint Review Panel had support from the CEAA staff, the decision was made by two NEB members and a mining executive.
The Kitimat Northern Gateway plebiscite question as projected at the Council Chambers Jan 13, 2014. (Northwest Coast Energy News)
