In a two to one decision, the Federal Court of Appeal has overturned the Harper government’s approval of the Enbridge Northern Gateway Pipeline, finding that the federal government’s consultation process with First Nations on the BC coast that occurred after the NEB decision and the Joint Review Panel Report was inadequate, saying:
We conclude that Canada offered only a brief, hurried and inadequate opportunity in Phase IV—a critical part of Canada’s consultation framework—to exchange and discuss information and to dialogue. The inadequacies—more than just a handful and more than mere imperfections—left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.
The dissenting judge found that the federal government under Stephen Harper had adequately consulted the First Nations. The split decision means that one of the parties, either the federal government, Enbridge Northern Gateway or the Canadian Association of Petroleum Producers may seek leave to appeal to the Supreme Court of Canada.
The headline on Thursday’s CBC.ca coverage of the sudden controversy over a boycott in British Columbia of Tim Horton’s over the Enbridge ads sums up everything that’s wrong about media coverage not only of the boycotts, but of northwest energy and environment issues overall.
“Tim Hortons yanks Enbridge ads, sparks Alberta backlash.” The anger at Tim Hortons across northwest British Columbia over those Enbridge ads, the calls for a boycott have been building for more than two weeks but no one in the media noticed despite widespread posts on Facebook and other social media.
As usual, the concerns of the northwest didn’t really become a story until Alberta got involved and the story has become the “Alberta backlash.” Now, there’s a backlash on social media to the Alberta backlash, with northwestern British Columbians tweeting and posting their displeasure, angry at the usual blinkered views of Alberta-centric coverage of energy issues.
Let’s make one thing clear– despite the outraged cries of the usual suspects like Defence Minister Jason Kenney, Conservative MP Michelle Rempel, who represents Calgary Centre-North and Kyle Harrietha, the Liberal candidate for Fort McMurray-Cold Lake that the boycott was aimed at Alberta’s entire energy industry and the province’s views of a manifest destiny as an energy super power, the doughnut boycott was really aimed specifically at Enbridge, and the company’s arrogance and incompetence.
Of course Jean, like most Albertans, isn’t looking at the bigger picture. The question that Jean should really be asking, is the continuing unquestioning support for Enbridge actually harming the rest of the Alberta energy industry by increasing the resistance in northwestern BC to other energy projects? When are Alberta politicians, whether federal or provincial, ever actually going to show even a Timbit of respect for the issues in northwestern British Columbia?
Look at what Enbridge is doing
There is strong support (with some reservations) for the liquified natural gas projects. There is a level of support for pipelines that would carry refined hydrocarbons to the coast, something that the new premier of Alberta, Rachel Notley is seriously considering. But it is so typical of Alberta, the Alberta media and most of the Canadian media, to believe that the boycott was an attack on the entire energy industry.
Ask any executive of an energy company that wants to do business in northwestern British Columbia and they’ll come up with the a joke that is now so old and so often repeated that it’s become a cliché, “We look at what Enbridge is doing and then do the exact opposite.”
The fact is that Enbridge has been dealing with northwestern British Columbia for more than ten years and they still can’t do anything right. Shell, Chevron, Petronas (and before them Apache) and even TransCanada make more efforts to listen to the people, First Nations and non-Aboriginal residents alike, than Enbridge ever has or ever will (despite their claims in their PR campaigns).
While these energy giants may not agree with what they hear, they are respectful and depending on their corporate culture are making genuine efforts to come up with ways to make their projects work. After a decade of blunders, however, Enbridge still hasn’t shown that much respect for anyone here. Those touchy feely ads that appear on television and at Tim Horton’s are just another example of how not to run a public relations campaign.
There are those who oppose any bitumen sands extraction who signed the online petition, but the core of opposition, as always, comes from northwestern BC and the issue is an ill-conceived pipeline.
Enbridge has been successful in one area of its public relations strategy. They’ve convinced Albertans that Enbridge and the Northern Gateway pipeline is an essential part of not only the Alberta economy but Alberta culture. Any attack on Enbridge becomes an attack on Alberta. Hence the unreasoned anger when after Tim Hortons pulled the ads.
The big blame America lie
The other Big Lie we keep hearing from the Harper Government, is that this all orchestrated by American NGOs and activists. Again this shows Alberta-centric contempt for British Columbia. It’s very easy and convenient to keep believing that everyone in northern British Columbia are dumb and stupid and are being led by the ear by those nasty green Americans who have it in for the efforts to make Canada an energy superpower. That idea, promoted by the more conservative Canadian media has always been animal waste. The battle to protect the environment of northwestern British Columbia while at the same time attracting resource projects that have recognized and obtained social licence to operate has always and will always in BC on a case by case, community by community basis.
A morning shock with your morning coffee and Timbits
Social media across northwestern British Columbia, mostly Facebook, began spreading the news within hours of the ads appearing in the local Timmys. There were angry posts from individuals who had walked in Tim Hortons and saw the ads.
Why didn’t the media get the story?
So why wasn’t the story covered by the media at least ten days ago?
That’s because in this age of tight budgets, it’s considered easy and economical to try to all of northern BC cover from either Vancouver or Calgary; that means covering from far away both the coast where the pipelines and tankers may or may not operate to the east near the Rockies where the natural gas extraction is on going
If you look at map of northern BC, and the two federal ridings Skeena Bulkley Valley and Prince George–Peace River–Northern Rockies, the population is about 200,000 spread over an area about half the size of Europe. Both ridings in this region are supposedly vital to the future of the Canadian economy, but you wouldn’t know it from most of the media. (The Globe and Mail is an exception, with more ongoing coverage of northern BC than you will find in either The Vancouver Sun or The Province).
As for CBC, there are just eight radio staff, two in Prince Rupert and six in Prince George to cover all the apparently vital issues across half the province. ( Almost all the staff work mostly for the Daybreak North morning show which dominates the regional rates but it looks like with the latest CBC cutbacks that at least one of those positions will be eliminated). CBC TV and Global cover the region from Vancouver.
At least the Vancouver based media make efforts to cover the north from time to time. The Alberta media, however, especially the Calgary Herald, is hopeless, and so biased against British Columbia and so dismissive of the issues here, that the coverage across Alberta is completely unreliable about 90 per cent of the time—it’s no wonder that the majority of Albertans have no understanding of British Columbia culture and issues.
Then there are the punditi, pontificating from their cubicles in Ottawa and Toronto without a clue, without doing the basic journalism of picking up the phone (or writing an e-mail) to actually find out what’s going on.
Andrew Coyne, for example, made these rather silly two tongue-in-cheek tweets Thursday night. While Coyne’s tweets do often exhibit a sense of humour, his excellent coverage of the decline of our democratic parliament has to be compared with his blind, unchecked ideological assumptions about the issues of the northwest, which are simplistic, cubicle bound and far off the mark. The same can be said for Jeffrey Simpson in his occasional writing about this region. Neither the view from the Hill, where you can see as far as the Queensway, nor from Bloor Street, where you can see part of the Don Valley, are vantage points to understand what is going in northern British Columbia.
So let’s look at the specific errors in the media coverage of the Tim Horton’s story.
Both Shawn McCarthy in the Globe and Mail and Kyle Bakyx on CBC.ca seem to accept without question that SumofUs, was the instigator of the petition. Like many issues in northwestern BC, the Lower Mainland or US based activist groups follow the lead of northwestern BC and jump on the bandwagon, not the other way around. Jason Kirby in MacLean’s says the boycott movement began a week ago. Here in Kitimat, it began within hours of the ads appearing in the local Timmys and was picked up on activist social media groups before the SumofUs petition site.
McCarthy repeats the conventional wisdom: “The Conservatives and oil industry supporters have been waging a public relations war with the environmental groups that oppose expansion of the oil sands and construction of new pipelines.”
CBC.ca quotes Alan Middleton of York University “Enbridge, of course, is not just pipelines and oilsands; they are a whole range of products including heating people’s homes. Tims should have thought about that.” Again a mistake. I lived in Toronto for many years. A company called Consumers Gas supplied natural gas to homes until it was taken over by Enbridge, so Enbridge does heat the homes in Toronto. But what has that got to do with northwestern British Columbia? Why didn’t CBC.ca call the University of Northern British Columbia? Easier to call York (which by the way is where I got both my BA and MA)
McCarthy quotes Rempel as saying, “One has to wonder whether head office talked to their franchise owners in Alberta before making the decision. I imagine those calls are being made this afternoon – certainly there are a lot of people voicing their displeasure.”
The question that should have been asked whether or not Tim Hortons consulted their franchise owners in British Columbia before ordering them to play the ads. People here were “voicing their displeasure” from the moment the first Kitimatian walked into the local Timmys for an early morning coffee and had to stand in line while being told how wonderful Enbridge is.
Of course, if Albertans force Tim Hortons into reinstating the ads, that will only trigger a bigger boycott in British Columbia. As Maclean’s asks, “what were they thinking?”
Jason Kenney, flying in, flying out
As for Jason Kenney, who is quoted by the CBC as tweeting: “I’m proud to represent thousands of constituents who work for Enbridge & other CDN energy companies,” if Kenney aspires to be Prime Minister one day, he had better start thinking about representing more Canadians than just those employed by the energy industry—a mistake that his boss Stephen Harper keeps making.
Jason Kenney did visit Kitimat for a just a few hours in February 2014 for a tour of the Rio Tinto modernization project and an obligatory and brief meeting with the Haisla First Nation council. If Kenney had actually bothered to stick around a few more hours and talk to the community, everyone from the environmentalists to the industrial development advocates, he might not have been so quick on the trigger in the Twitter wars.
Not one of the major media who covered this story, not The Globe and Mail, not CBC.ca, not MacLean’s, no one else, once bothered to actually call or e-mail someone who lives along the Northern Gateway pipeline route in British Columbia, the area where the boycott movement actually began to ask about Enbridge’s track record in this region. The media still doesn’t get it. This morning’s stories are all about Alberta. As usual, my dear, the media doesn’t give a damn about northwestern British Columbia.
That is why the coverage of the Tim Hortons boycott is a double double failure of the Canadian media.
Where else the media is failing northwestern BC
Full disclosure. Since I took early retirement from CBC in 2010 and returned to Kitimat, I have worked as a freelancer for CBC radio and television, Global News, Canadian Press, The National Post, The Globe and Mail and other media.
However, largely due to budget cuts, freelance opportunities, not only for myself, but others across the region have dried up. The media seems to be concentrating more on the major urban areas where there is larger population base and at least more of the ever shrinking advertising dollar. I am now told more often than I was a couple of years ago that “we don’t have the budget.”
Now this isn’t just a freelancer who would like some more work (although it would be nice). If the media these days actually had environmental beats for reporters the boycott of Tim Hortons in northwest BC would have been flagged within a couple of days, not almost two and half weeks and later only when Alberta got hot under its oily collar.
So as well as the Tim Horton’s boycott here are two major ongoing stories from Kitimat that the media haven’t been covering.
100 day municipal strike
-Kitimat’s municipal workers, Unifor 2300, have been on strike since February 28. Three rounds of mediation have failed, the union has refused binding arbitration, the pool, gym and community meeting halls have been closed since February, the municipal parks and byways are now returning to the wilderness. Only essential services are being maintained (but residents still have to pay their property taxes by July 2, taxes that are skyrocketing due to increased assessments for home values based on LNG projects that haven’t started) By the time most people read this the strike will have been on for 100 days. There is no settlement in sight and both sides, despite a mediator ordered blackout, are fighting a press release war on social media. Can you imagine any other place that had a 100 day municipal workers strike with no coverage in the province’s main media outlets, whether newspaper or television? Local CBC radio has covered the strike, as has the local TV station CFTK. (Update: District of Kitimat says in a news release that the mediator has now approved the DoK news releases.)
Of course, in the bigger picture the media concentrates on business reporting. There haven’t been labour reporters for a generation.
So if most Canadians were surprised that there was a boycott of the unofficial national symbol, Tim Hortons, it’s because of that double double media fail and as the media continues to decline, as budgets are cut, as “commodity news” disappears, expect more surprises in the future. Oh by the way Kitimat is vital to the national economy but we can cover it from a cubicle in Toronto.
Final disclosure: I am not a coffee drinker. When I go to Timmy’s I prefer a large steeped tea and an apple fritter.
If anyone wanted a snapshot (or for younger folks a selfie) of why the Harper government grounded out at home, never even getting to first base with northwestern British Columbia on Northern Gateway and other resource projects, it can be found in about sixty pages of documents, obtained by Northwest Coast Energy News under the Access to Information Act, documents that outline the planning for former Natural Resources Minister Joe Oliver’s first visit to Terrace in March 2013
The documents reveal the priority for Natural Resources communications staff was mainly finding an appropriate First Nations visual backdrop for Oliver’s speech announcing the appointment of Douglas Eyford as special representative to First Nations, the Harper government’s attempt to smooth relations as it dawned on the government that opposition to Northern Gateway wasn’t just going to disappear.
Despite years of media coverage from both those opposed to and even those who support the Northern Gateway project that highest priority issue was preventing oil spills whether from tankers or pipelines, the Ottawa-based communications planners in Natural Resources Canada were talking about how aboriginal and non-aboriginal communities could respond to oil spills.
For an event that was supposed to engage the First Nations of coastal British Columbia and gain their support for resource projects, all the economic examples are about Alberta First Nations who are working the extraction of bitumen in Alberta, there are no example of how BC First Nations might profit from Northern Gateway (that is if any BC First Nations actually wanted to do so)
When Natural Resources Canada started planning Joe Oliver’s announcement they created what was called a “Message Event Proposal” which even in its title shows how the government and the communications staff think. The message is more important than the event.
The planning documents from Natural Resources, starting on March 5, 2013, indicate that from the beginning the announcement was being treated as a photo op. Invitations to or participation by “stakeholders” are listed as N/A “not applicable,” which meant that meetings, even private meetings, with representatives of northwestern First Nations and other communities either weren’t considered or the communications staff weren’t informed. (If there were such plans they were not part of the access documents released and as far as Northwest Coast Energy News can find out no meetings took place since Oliver left for Ottawa immediately after the announcement)
The Natural Resources communications staff were working on multiple angles in March, as part of what the planning documents call “a suite of events in Vancouver on marine and pipeline safety.”
The first set of those events would eventually take place on March 18, 2013, in Vancouver, and included the announcement, without consulting either Rio Tinto Alcan or the District, that Kitimat’s private port run by Alcan since it was first built would be turned in a federal public port.
That location certainly wasn’t clear at first. The first documents suggested the announcement take place in Vancouver, and then a day later on March 6, the proposed venue, according to the staff, was in either Prince Rupert or Prince George.
According to the internal e-mails, sometime that week what Ottawa bureaucrats call MINO — the minister’s office– decided that the venue should be Terrace. On March 11, e-mails among Natural Resources staff show that the choice had changed to either Terrace or Prince George.
Since the “special representative” whom we now know would be Douglas Eyford, would report directly to Prime Minister Stephen Harper, the political level was involved. MINO took over writing Oliver’s speech and the arrangements were copied to the Privy Council Office, the civil service branch that has overall supervision of the federal bureaucrats and works directly with the Prime Minister. So the speech that the communications branch had drafted for Oliver became “can please turn the one we had done for him into the remarks for the new guy?”
Plan B in Prince George
The choice of Terrace left the Natural Resources Ottawa staff hedging their bets, looking for a “potential plan B” in Prince George. The e-mails indicate that Ottawa asked Natural Resources west coast communications officer for a list of suitable locations in Prince George.
The communications officer replied with three locations at the University of Northern British Columbia “a moving bear totem on campus” the main administration building which the e-mail said “ has a strong First Nations focus,” adding “Environment Canada has done…events there. Strong FN visuals.” The third choice was “a new bio energy facility that looks industrial.”
Backups were The College of New Caledonia trade centre and the Prince George industrial park.
E-mails from the staff on Wednesday, March 14 and Thursday, March 15, showed while they were now aware the event would be in Terrace, and probably at Northwest Community College, there was still a lot of uncertainty. “We haven’t been able to contact them to confirm, but as soon as we do, we will let you know the exact details as well as what is required in terms of logistics.”
Remembering that Natural Resources and Transport Canada were also planning the Vancouver event on Monday, March 18, it appears that even as Oliver arrived on the morning of March 19, the minister’s staff both political and bureaucratic were still scrambling.
On March 19, the NWCC staff on site were complaining that as soon as the Ottawa delegation saw the standard arrangements for an event at the Waap Galts’ap community long house they ordered the NWCC staff to immediately rearrange the room, so that the podium was in front of one wall with what Oliver’s staff thought was a better First Nations painting. That rearranging was still going on when I arrived to cover the announcement.
Even after the furniture was rearranged, the start was delayed as Oliver and his staff disappeared into an upstairs room for a meeting before the news conference began, and Oliver announced Eyford’s appointment.
During the question and answer session with the media during the news conference, the students that had essentially been brought in as props for the photo op and to help promote Northwest Community College’s industrial training program, began to ask questions.
One student asked Oliver if Eyford’s appointment was going to replace “all talks” with First Nations about resource projects. The Natural Resources public relations staff tried to cut off one student, since the national media were waiting on a telephone conference call. To his credit, Oliver did answer the student’s question, saying Eyford’s appointment was not intended to “replace the independent, regulatory review.” He went on to explain the Northern Gateway Joint Review would continue its work and report at the end of 2013.
What was Ottawa thinking? You too, can respond to an oil spill.
If the aim was to engage the First Nations and other residents of northwestern BC, it is clear that the concerns of this region hadn’t reached out Ottawa.
It appears from the planning documents for Joe Oliver’s trip to Terrace, that a main concern of everyone in the northwest, aboriginal and non-aboriginal, opponents and supporters of the Northern Gateway pipeline, preventing oil spills also wasn’t on the government radar, rather it was preparing and responding to oil spills.
Guess who would respond?
As part of the measures to strengthen Canada’s Marine Oil Spill Preparedness and Response Regime, the Government of Canada will strengthen the engagement and involvement of Aboriginal and non-aboriginal communities in preparing for and responding to oil spills.
When it comes to a key section on benefits from the Northern Gateway and other resource projects, there is no mention of benefits to British Columbia; rather it appears all the examples of benefits for aboriginal communities come from Alberta, including $1.3 billion in contract work for oil sands companies not including construction, for the year 2010, and $5 billion since 2001. The Message Event Proposal also cites a joint venture between the Bigstone Cree and Bronco Energy, “the biggest oil sands project every undertaken on First Nations reserve lands.”
Overall the plan was to “Promote Canada’s commitment to achieving its goals under its plan for Responsible Resource Development, including increased consultations with Aboriginal peoples.”
The “media lines’ issued by Natural Resources also outlined the Harper government’s attitude to the Northern Gateway, noting that Eyford’s appointment was independent of the Northern Gateway Joint Review, and went to indicate that the JRP was “conducting a rigorous, extensive, open, science-based assessment.” It adds that “we will continue to rely on the integrity of this process,” again showing how out of touch Natural Resources was (at least in talking points) since by March 2013, there was growing consensus in the northwest that the JRP had lost its credibility.
The media lines also show that the Harper government believed that “Aboriginal consultations are fully integrated into the review process to ensure meaningful consultation occurs,” a position that most First Nations in British Columbia reject, insisting on meaningful consultations between the Crown and the First Nation.
When Eyford presented his report to the Prime Minister in December, 2013, Eyford called for stronger action to engage First Nations opposed to new oil and gas pipelines.
“It’s never too late to engage and do so in a process of good faith negotiations… “This won’t be an easy process. I hope my report is perceived as providing objective and blunt advice to all the parties engaged in this process.’’
The 53 page report contained dozens of recommendations mainly concerned with a more open and principled dialogue with First Nations.
“The development of West Coast energy infrastructure provides an opportunity to forge partnerships and build relationships. There is a strong interest and real opportunity for Canada and aboriginal Canadians to more effectively collaborate to address their respective interests.’’
Editor’s note: On the port issue, an RTA spokesperson noted that talks with the federal government are continuing. He noted that all the Kitimat port facilities are privately owned, by Rio Tinto Alcan or by LNG Canada and there are “multiple stakeholders” involved.
There’s a dumb, dumb, really dumb idea that just won’t go away—that Enbridge could solve all its problems if only, if only, it would send the Northern Gateway Pipeline to Prince Rupert.
Enbridge long ago rejected the idea. Before Enbridge updated its website to make Gateway Facts, to make it slick and more attractive, the old website had an FAQ where Enbridge explained why it wasn’t going to Prince Rupert.
Did you consider running the pipeline to Prince Rupert where a major port already exists?
We considered Prince Rupert and Kitimat as possible locations. We carried out a feasibility study that took into account a number of considerations. The study found that the routes to Prince Rupert were too steep to safely run the pipeline, and that Kitimat was the best and safest option available.
Here in the northwest even the supporters of the Northern Gateway roll their eyes when they hear the old Prince Rupert story come up again and again – and it’s not just because these people support the Kitimat plans for Northern Gateway, it’s because those supporters (not to mention the opponents) have driven along the Skeena from Terrace to Prince Rupert.
There just isn’t any room for a pipeline. It’s a game of centimetres.
Alternatives to Kitimat?
Now the new premier of Alberta, Jim Prentice, who should know better if he’s going to lead that province, is hinting that Kitimat isn’t the only possible solution for the Northern Gateway.
Without specifying Prince Rupert, according to Gary Mason reporting in The Globe and Mail, Prentice was speculating about an alternative to Kitimat.
Asked whether he believes the Gateway terminus should be relocated to Prince Rupert or another destination, Mr. Prentice said, “Everything I’ve heard from the Haisla who live there is they don’t agree with the terminal being in Kitimat.” Is it possible to get First Nations approval if there is no support at the planned terminus site? “It’s pretty tough,” the Premier said.
Prince Rupert has a thriving local fishing industry that employs hundreds of people and is critically important to the local First Nations. He is convinced the community would not be willing to put that at risk.
“Overwhelmingly people in my community are much more comfortable with liquefied natural gas, with wood pellets, with coal, than any oil product,” he said.
The Prince Rupert Port Authority also rejected the idea
A spokesman for the Prince Rupert Port Authority said Wednesday there is currently no room for Enbridge to build at the port even if it wanted to. “We are fully subscribed,” Michael Gurney said. There are two large vacant lots within the port authority’s jurisdiction, but both are locked by other energy companies, earmarked for LNG projects.
So not only is there no room on the road to Prince Rupert, there is no room in Prince Rupert.
Let’s just consider for a moment that if Prince Rupert was the ideal location for the Northern Gateway terminal (which it is not), what would be needed to get the project going today.
The Northern Gateway Joint Review Panel would have be reconstituted or a new JRP created by the National Energy Board. That’s because the bitumen comes from Bruderheim, Alberta, crossing provincial boundaries and thus it’s in federal jurisdiction.
Even under the fast track rules imposed on the NEB by Stephen Harper’s Conservative government, new environmental and social impact studies would be required, starting from scratch. So add another five years of paperwork before a single shovel goes into the ground.
The pipeline would have to cross the traditional territory of First Nations that, so far, have not been part of the negotiations, mostly the Tsimshian First Nation as well as the Nisga’a First Nation which has a treaty establishing local rule over their territory.
In February 2012, the largest anti-Enbridge demonstration outside of the Lower Mainland took place in Prince Rupert, with the elders of the Tsimshian First Nation welcoming the elders and members of the Gitga’at First Nation, at Hartley Bay, which had organized the protest.
When I say there isn’t room for a pipeline along the Skeena, it also means that there isn’t any room for the pipeline corridor right-of-way. Enbridge, in its submissions to the Joint Review Panel, said it requires a 25 metre wide right of way for the pipeline corridor. (For the record that’s just over 82 feet).
Along that highway, as you will see, there’s barely enough room for the CN mainline and Highway 16 (also known as the Yellowhead Highway) and on a lot of places both the highway and the railway roadbed are built on fill along the side of a cliff.
Albertans’ desperate desire to see the Northern Gateway go to anywhere to what they call “tide water” keeps coming up like the proverbial bad penny. The latest came when Jim Prentice speculated about a new route for the Northern Gateway.
I knew I had an appointment coming up in Prince Rupert on Monday, September 29. So I decided that only way to prove to people sitting in Calgary, Edmonton and Fort McMurray playing with Google Maps that the pipeline to Prince Rupert was a really dumb idea was to shoot photographs to show just why the Northern Gateway will never go to Prince Rupert—at least along the Skeena.
As you drive out of Terrace, you pass two large swing gates (also called by some “Checkpoint Charlie” gates after the Cold War era crossing in Berlin.) At the first rest stop west of Terrace, there are another set of gates at the Exstew. There’s a third set of gates just outside Prince Rupert.
The swing gates are avalanche gates and, in the winter, Highway 16 can be shut down if an avalanche closes the highway or the danger from avalanche is too great to allow motorists to proceed. When you drive the highway from Terrace to Prince Rupert in the winter (the signs were covered up when I drove Monday) you are warned “Avalanche danger Next 13 kilometres. No stopping.”
The drive along the Skeena from just west of Exchamsiks River Provincial Park all the way to Tyee where the highway turns inland to reach northwest to Prince Rupert on Kaien Island is one of the most spectacular drives on this planet. The highway snakes along a narrow strip of land with steep mountain cliffs on one side and the vast river on the other.
The problem is that apart from locals and tourists, none of the “experts” whether journalist, think tanker, bureaucrat or politician have, apparently ever driven from Prince Rupert to Terrace.
When both Opposition Leader Tom Mulcair and Liberal Leader Justin Trudeau were in the northwest earlier this summer to “engage” with the local people, apart from short boat trips down Douglas Channel, they flew everywhere. Scheduling you know. Stephen Harper has never visited northwest BC and probably never intends to. His cabinet members fly in for photo ops and then are on the next plane out of town.
Of all the visiting journalists who have come to the northwest only a couple have bothered to drive around the region. Most fly-in fly-out. These days, most often budget-strapped reporters never leave their offices, interviewing the same usual suspects by phone on every story.
On Monday, I took most of the photographs on my way back from Prince Rupert to Terrace after my appointment, so the sequence is from west to east. There are also very few places along the river where you can safely stop. There are concrete barricades on both sides of the highway to prevent vehicles either going into the river or onto the narrow CN right-of-way.
There are, however, two rest stops and a number of small turnoffs on the highway, the turnoffs mainly intended for use by BC Highways, but which are also used by tourists, fishers and photographers.
The first image was taken at one of those highway turnoffs just east of Aberdeen Creek. This is what the highway and rail corridor are like all along the Skeena, the highway, bounded by concrete barricades, the CN rail line and then the towering mountains. Note where the telegraph and telephone lines are—further up the cliffside.
A closer view of the highway and rail corridor just east of Aberdeen Creek.
Here is the view of the Skeena River from the Aberdeen Creek turnoff. You can see to the east, a mountain and the narrow strip of fill land that supports the highway and the rail line.
You see the broad width of the mighty Skeena, the Misty River, as it is called by the Tsimshian First Nation and by everyone else who lives in the northwest and on the right side of the image, the highway and rail corridor built on fill.
Any room for a pipeline?
There’s another turnoff on the other side of the headland east of Aberdeen Creek, looking back the way we came.
The final small turnoff is just by the Kylex River. Again you can see how narrow the highway and rail corridor are.
A few kilometres further along—as I said the highway snakes and curves its way along the riverbank– you come to the Basalt Creek rest area. So this telephoto image shows a logging truck heading west, taken from Basalt Creek, looking back at the highway.
Again you can see both the highway and CN line are built on fill. Is there any room for a pipeline?
Any room for a 25 metre pipeline right-of-way?
Between Basalt Creek and Telegraph Point, a few kilometres to the east, again the highway and rail line hug the narrow strip between the river and mountains.
This shot, taken from Telegraph Point, in October 2013, shows a CN intermodal container train heading to Prince Rupert. The container trains and the coal trains usually have between 150 and 180 cars. If a winter avalanche took out a train, there would be environmental damage, but that damage would be insignificant from coal or containers compared to a train of railbit tankers carrying diluted bitumen.
At Telegraph Point, the second of the three rest stops between Prince Rupert and Terrace, again there is just a narrow strip between the mountain, the highway and the river.
Across the highway from the rest stop, you can again see the narrow corridor, the first shot looking west the rail line close to the cliff face, the second, east, with the waterfall, which you don’t see during the rest of the year, fed by the fall monsoon.
Two shots from the same location, Telegraph Point, taken in March, 2013, of a CN locomotive hauling empty coal cars back to the fields around Tumbler Ridge. (No waterfall in March)
Everyone has assumed that if Northern Gateway changed its route, the most likely choice given the configuration of the pipeline at the moment is to follow the Skeena.
If Enbridge wanted to try a northern route, similar to the one TransCanada contemplates for Petronas, Northern Gateway would again run into trouble.
It would require reopening or creating a new Joint Review Panel, many more years of environmental and social impact studies of the route, even under Stephen Harper’s fast track system. The TransCanada/Petronas pipeline would also cross the traditional territory of the Gitxsan First Nation and if Enbridge tried that the company would have to deal with the fact that it signed a controversial agreement with Elmer Derrick that was immediately repudiated by most members of the Gitxsan First Nation and eventually dropped by Enbridge.
So why does this idea of a pipeline to Prince Rupert keep coming up?
In most cases, the idea of the pipeline to Prince Rupert is always proposed by Albertans, not from any credible source in British Columbia, or the suggestions come from desk bound analysts in Toronto and Ottawa both in think tanks and in the newsrooms of dying newspapers who have never seen the Skeena River apart from a tiny handful who have looked at Google Street View
(Yes you can Google Street View Highway 16 along the Skeena, I recommend it if you can’t do the drive)
Perhaps the worst example of this failure of both analysis and journalism came in the Edmonton Journal on July 7,2014, when it published a piece by Bob Russell, entitled Opinion: Make Prince Rupert the terminus, which went over the same old inaccurate arguments.
The overland route currently proposed by Enbridge is fraught with environmental issues because it goes over coastal mountains and streams before entering Kitimat’s port. This port will also be the base of perhaps as many as four liquefied natural gas terminals, which will result in the channel always busy with LNG ships outbound and returning from many Asian ports.
There are existing rights of way for the major highway, the Yellowhead, and CN Rail line from Edmonton to the Port of Prince Rupert, so this eliminates the issue of transgressing First Nations lands. The technical issues of narrow passages can be overcome with engineering. In fact, the pipeline can be buried in the roadway at some restricted locations if absolutely necessary, but two different engineers have assured me that for the most part, the right of way should be able to handle the pipeline. A vital factor, of course, is to reduce the impact by eliminating the need for two pipelines.
The clue is how the Edmonton Journal describes Russell;
Bob Russell has an extensive background in planning and was a member of the Edmonton Metro Regional Planning Commission. He has flown the Douglas Channel, visited Kitimat and toured the Port of Prince Rupert.
This is so typical of the Albertan attitude toward northwest British Columbia, people fly in for a couple of days, make a quick observation, and fly out again and present themselves as experts on the region. (Some “experts” on Kitimat, very active on Twitter have apparently never left Calgary).
It obvious that the “two engineers” who assured him “the right-of-way could handle of pipeline” have no idea what they’re talking about. As the photos show there is barely enough room for a highway and a rail line much less a 25 metre wide pipeline corridor.
If the pipeline was to be built as Russell proposed, the only highway between Prince Rupert and the rest of Canada would have to be closed for years, there are no detours. All so a pipeline can be buried under the asphalt not in solid ground, but in the fill on the side of a riverbank in an avalanche zone?
Of course, closing a highway up here won’t inconvenience anyone in Edmonton or Calgary, will it?
Would CN be happy with years of disruption of their lucrative traffic to Prince Rupert with grain and coal outbound to Asia and all those containers coming in to feed Chinese products to the North American market? (you can be sure Walmart wouldn’t be happy about that, not to mention prairie farmers including those from Alberta)
There are existing rights of way for the major highway, the Yellowhead, and CN Rail line from Edmonton to the Port of Prince Rupert, so this eliminates the issue of transgressing First Nations lands.
Is also inaccurate.
I was told by First Nations leaders during the Idle No More demonstrations in the winter of 2013, that, a century ago, when the Grand Trunk built the railway along the Skeena , they did just that, built it without consulting the First Nations along the route, sometime digging up native cemeteries and sacred spots.
While apparently CN has worked in recent years to improve relations with the First Nations along the rail line, according to those leaders some issues of right-of-way remain to be resolved.
If there were any plans to build a diluted bitumen pipeline along that route, that would likely mean another court battle adding to those already before the Federal Court, a court battle that would cost Enbridge, CN, the federal government, environmental NGOs and the First Nations more millions in lawyers’ fees.
It’s doubtful if in the long gone (and perhaps mythical) days of “get it right” journalism that the Russell opinion piece would have passed the scrutiny of an old fashioned copy editor and fact checker.
In 2012, the Edmonton Journal (in a story no longer available on their website) also cited former Alberta Premier Peter Lougheed and former Bank of Canada governor David Dodge, as also favouring Prince Rupert.
Dodge, who was in Edmonton Tuesday to deliver a speech on the global economic outlook at MacEwan University, said Enbridge’s proposed Northern Gateway pipeline to Kitimat looks like even more of a long shot.
“I think the project to Kitimat looks, objectively, more risky. So why hasn’t much greater effort gone into looking at Prince Rupert and taking (bitumen) out that way? My guess is, the easiest place to get B.C. to buy into the project would be to go to Rupert.”
Dodge’s views echo those of former Alberta Premier Peter Lougheed, who also favours looking at an alternate pipeline route to Prince Rupert, where ocean-going supertankers can navigate more easily.
Back in 2012, I finished my piece for the Huffington Post by saying:
So why do people insist, despite the evidence, that the Northern Gateway go to Prince Rupert? It’s no longer an pipeline; it’s emotion and ideology. Ideology in that opposition to the Northern Gateway is seen by conservatives as heretical opposition to free enterprise itself. Emotion among those who see promoting the oil patch as an issue of “Alberta pride” and even Canadian patriotism.
For the promoters of the pipeline to Prince Rupert, ignoring the science of geology and the study of geography across all of northwestern B.C. is no different than repeatedly knocking your head against the Paleozoic metamorphic greenstone of the mountain cliffs along the Skeena. It only gives you a headache.
Things haven’t gotten much better in the past two years. In fact they’re getting worse as opposition to pipelines mounts.
It seems that in 2014 the Alberta and the federal government policy in promoting pipelines Northern Gateway, KinderMorgan’s TransMountain, Keystone XL, Line 9 Reversal and Energy East (slick PR and smiling representatives at open houses, politicians at strictly controlled photo ops) is to ignore facts on the ground and to refuse to deal with the concerns of local people from coast to coast.
There could, perhaps, be a more inclusive and truly science-based pipeline planning process that could see pipelines go on optimum routes but that isn’t happening.
The policy for the oil patch and its politician supporters when it comes to pipelines is facts and geology don’t really matter. So they put on ruby slippers, knock their heels together three times and send pipelines down a yellow brick road to an Emerald City (while telling the locals to ignore the man behind the curtain)
About 52 million years ago what is now the Bulkley Valley was home to a tiny hedgehog and an ancient ancestor of tapirs, who lived on the shores of a placid lake surrounded by a lush upland forest.
The newly discovered fossils at Driftwood Canyon near Smithers are significant advance in the study of the ancient history of the region. That’s because while the Driftwood Canyon Provincial Park is known for beautifully preserved fossils of leaves, fishes and insects, these are the first mammalian remains found at the site.
The fossil hedgehog and tapir are even more significant because at the time they lived near an upland lake, Earth was going through a period of rapid global warming, now called the Paleocene-Eocene Thermal Maximum.
In the past couple of years, climatologists and paleontologists have started to play closer attention to the Thermal Maximum period in hopes of understanding what could happen during climate change today.
Driftwood Canyon first became famous in 1977 with the discovery of oldest known ancestor of salmons, Eosalmo driftwoodensis, which lived in an Eocene lake at Driftwood Canyon.
Today’s study says the ancient hedgehog is a species hitherto unknown to science. It is named Silvacola acares, which means “tiny forest dweller,” since this minute hedgehog likely had a body length of only two to two and half inches or five to six centimetres, about the size of an adult human thumb.
“It is quite tiny and comparable in size to some of today’s shrews,” said Dr. Jaelyn Eberle of the University of Colorado, lead author of the study. She speculated Silvacola may have fed on insects, plants and perhaps seeds.
Did it have quills like contemporary hedgehogs? “We can’t say for sure,” Eberle said. “But there are ancestral hedgehogs living in Europe about the same time that had bristly hair covering them, so it is plausible Silvacola did too.”
The delicate fossil jaw of Silvacola was not freed from the surrounding rock as is typical for fossils. Instead it was studied using an industrial high resolution CT (computed tomography) scanner at Penn State University so it could be studied without risking damage to its tiny teeth.
Hedgehogs are no longer found naturally in North America. Modern hedgehogs and their relatives are restricted to Europe, Asia, and Africa. Hedgehogs have become quite the rage as pets in North America in the past several years. The most common hedgehog pet today is the African pygmy hedgehog, which is up to four times the length of the diminutive Silvacola.
The other mammal, about the size of a medium-sized dog, discovered at the site, is Heptodon, is an ancient relative of modern tapirs, which resemble small rhinos with no horns and a short, mobile, trunk or proboscis.
“Heptodon was about half the size of today’s tapirs, and it lacked the short trunk that occurs on later species and their living cousins. Based upon its teeth, it was probably a leaf-eater, which fits nicely with the rain forest environment indicated by the fossil plants at Driftwood Canyon,” Eberle said.
Most of the fossil-bearing rocks at Driftwood Canyon formed on the bottom of an ancient lake and are well-known for their exceptionally well-preserved leaves, insects, and fishes.
“The discovery in northern British Columbia of an early cousin to tapirs is intriguing because today’s tapirs live in the tropics. Its occurrence, alongside a diversity of fossil plants that indicates a rain forest, supports an idea put forward by others that tapirs and their extinct kin are good indicators of dense forests and high precipitation,” she said.
Forests, lakes, rivers
Fossil plants from the site indicate the area seldom experienced freezing temperatures and probably had a climate similar to that of Portland, Oregon, located roughly 1,126 kilometres or 700 miles to the south.
The current and previous studies have shown the hedgehog and tapid lived on the shores of a lake surrounded by a mixed conifer-broadleaf forest with redwoods, such as Metasequoia and Sequoia, cedars, fir, larch, golden larch, spruce, pine as well as rare ginkgoes. There were also broadleaf deciduous trees such as alder, birch, sassafras, elms, and relatives of the oak family. In the lake were Azolla, a floating fern, which are frequently found as preserved mats in the fossil shale of the cliff at Driftwood, which together with the fine preservation of the insects indicate a quiet water lake.
The remains on the hedgehog were found in the fossil lake bed while the tapir was found in river sediments.
The paleoclimate has been reconstructed suggesting the region had a mean annual temperature of between 10 degrees C and 15 degrees C, with minimal winter freezing and annual precipitation of about 100 centimetres a year. Today, the mean annual temperature for Smithers is 4.2 degrees C with 50.85 centimetres of precipitation a year
“Driftwood Canyon is a window into a lost world – an evolutionary experiment where palms grew beneath spruce trees and the insects included a mixture of Canadian and Australian species. Discovering mammals allows us to paint a more complete picture of this lost world,” said Dr. David Greenwood of Brandon University, a co-author of the study.
“The early Eocene is a time in the geological past that helps us understand how present day Canada came to have the temperate plants and animals it has today. However, it can also help us understand how the world may change as the global climate continues to warm.”
The Driftwood Canyon site is the northernmost of a series of Eocene lake sites spanning about 1000 kilometres that reach south from Smithers to Republic in northern Washington that the scientists call the Okanagan Highlands, with a mixture of temperate and tropical plants and animals and a high diversity of insects and plants.
While Driftwood Canyon is now among sites considered a key indicator of climate change 50 to 53 million years ago, the Harper government has cut almost all the funding for research into paleontology, not just at Driftwood Canyon but across the country, because looking for fossils doesn’t usually fit into the Conservative policy of only funding science that promotes industry.
“Within Canada, the only other fossil localities yielding mammals of similar age are from the Arctic, so these fossils from British Columbia help fill a significant geographic gap,” said Dr. Natalia Rybczynski of the Canadian Museum of Nature, a co-author of the study.
Other fossils of this age come from Wyoming and Colorado, some 4,345 kilometres or 2,700 miles to the south of the Arctic site of Ellesmere Island. In addition, sources have told Northwest Coast Energy News that the provincial budget for Driftwood Canyon, despite its significance, is the same as other small parks of that size, with virtually no security to prevent fossils leaving the park, either in the hands of professional looters or if they are picked up and taken home by visitors.
There are consistent reports that looted fossils from Driftwood Canyon are regularly showing up at fossil shows in the United States.
Sources have told Northwest Coast Energy News that the provincial government has ignored requests to improve security at Driftwood Canyon because it is considered a small (just 21 hectares) low priority park off the main tourist routes, rather than a significant fossil site.
The mammal fossils were discovered in 2012 before the budget cuts and are now in the Royal British Columbia museum in Victoria. The fieldwork was supported by Natural Sciences and Engineering Research Council of Canada.
The study “Early Eocene mammals from the Driftwood Creek beds, Driftwood Canyon Provincial Park, Northern British Columbia ” was published in the July 8, 2014 edition of the Journal of Vertebrate Paleontology.
One small step for the Supreme Court of Canada, one giant leap for mankind.
A barely-noticed* part of the unanimous Supreme Court of Canada decision on Thursday recognizing the rights and title of the Tsilhqot’in First Nation to their traditional territory may—may— change the way resource companies operate, not just in Canada but around the world.
The ruling isn’t just about consultation, reconciliation and accommodation, it’s about the future.
A close reading of the decision, written by Chief Justice Beverly McLaughlin says the Crown, in its relations with First Nations, cannot “deprive future generations of the benefit of the land.”
While the ruling applies only to First Nations, it upholds the First Nations’ concept of “stewards of the land” for the future and thus could protect the environment for all future generations, aboriginal and non-aboriginal, in Canada and perhaps around the world.
The ruling says:
Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes — even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.
While the Supreme Court ruling was about a case in British Columbia, where previous decisions have shown that in that province, aboriginal title was not extinguished at the time of European settlement and, what the court calls, “declaration of sovereignty,” by the colonial powers, the decision is already seen as applying to First Nations across the country where they can prove long term use of the land.
Already there are those in the business community and among the conservative pundits who are raising the alarms about First Nations blocking resource development.
Perhaps, just perhaps, some big corporations are quietly approving the Supreme Court decision because it gives responsible companies a roadmap for their operations, that roadmap will, as the years go by, reduce, not increase, uncertainty.
Some companies, including the world’s biggest corporations are now thinking about the future. It is likely those companies are already planning new procedures and practices that will comply with the Supreme Court’s requirement of consultation and consent on First Nations’ traditional territory.
In May, at an LNG event in Vancouver, I was speaking to a high ranking energy executive whose responsibilities cover half the planet.
“Everything has changed in the past five years,” he told me. “Once all we had to do is talk to presidents and prime ministers, now we listen to everybody.”
What changed, he said, was the rise of social media, Facebook and Twitter. “In one case five women in one small town shut down a project that would have been worth millions.” (He would not tell me the specifics and assured me it was true but he wasn’t prepared to give the details because it wasn’t his company that was involved).
“Not all my colleagues agree with me,” he said, “But in the end it’s good for business, if we genuinely engage with a community, we actually save on costs and get into profit sooner.” He said that smart companies in the energy sector have staff constantly monitoring social media, not to identify “enemies” but so top management can be aware of growing issues that may complicate their future operations.
This company generally, so far, has good relations with First Nations in British Columbia (although its record elsewhere in the world has been questionable at times in the past).
If truly responsible resource and other companies either willingly or are compelled to change their practices and investment decisions on First Nations’ land so that those projects consider future generations, and still make a profit, (which my source says they can) then it is likely that the companies will then adopt those practices in other parts of Canada where Rights and Title are not an issue and then around the world.
To use a marketplace phrase, it isn’t going to be “an easy sell.” For more than half a century now, the world has been plagued by the idea from Milton Friedman and other economists that a corporation has only one responsibility to its bottom line and “shareholder value.” With companies that still follow the no responsibility culture, comes the race to the bottom and the environmental degradation we have seen increasing in recent years.
As The Globe and Mail reported, the Business Council of British Columbia, an intervenor, said in its submission
Business groups say the Tsilhqot’in’s approach to title threatens the economy. “A territorial approach undermines the ability of corporations, and indeed First Nations, to ensure the global competitiveness that is required to attract capital … within natural resource sectors dependent on the land base,” a coalition of B.C. business groups, intervening in the case, told the Supreme Court in its written argument.
For years now global competitiveness has been used an excuse for deliberately ignoring or turning a blind eye to practices that “substantially deprive future generations of the benefit of the land.”
Even if no high court in any another country matches or cities the Supreme Court of Canada decision, (and they should for the rights of all indigenous people) smart companies will increasingly recognize their responsibility not to “deprive future generations of the benefit of the land.”
If those companies don’t change, as the years go on and the environmental crisis worsens, courts in other nations will likely cite the Supreme Court of Canada and force those companies to be responsible.
In the long term, in the future cited by the Chief Justice, those companies that do work toward a true “benefit of the land” for everyone will have a competitive advantage, perhaps not in the coming years, but certainly in the coming decades.
To use another phrase, respecting the rights and title of First Nations and the stewardship of the land will be a “net benefit” to Canada in the 21st century, even if the bean counters don’t believe it.
Legal recognition of the concept of stewardship by a high court might also save the planet from total disaster.
*(Barely-noticed: I can only find one media account that mentions in passing, an op ed opinion piece in the Globe and Mailby Vancouver lawyer Albert Hudec Aboriginal court ruling won’t resolve real-world resource issues)
The response to the Joint Review Panel decision on the Northern Gateway, beginning in December and continuing until this Canada Day, both in the public and in the media is sharply divided by the Rocky Mountains.
A lof of Albertans, most of the energy companies and many in the media, especially the Toronto-based business press, keep telling Canadians that the NEB is an independent, quasi-judicial body, that carefully weighs the scientific and other evidence before coming to a conclusion.
Prime Minister Stephen Harper stands up in Question Period and from his prepared script also claims the JRP and NEB are independent bodies.
Most of those writing about the attitude of the National Energy Board have never attended a single hearing, As for the Joint Review,. those from the major media who did attend were only there for the opening and closing sessions.
In British Columbia, those attended the Northern Gateway Joint Review sessions saw a strange and arcane bureaucratic system with rules of evidence and procedure often tilted toward a proponent in the energy sector.
Those rules of evidence were created for the cosy club atmosphere of the NEB in Calgary where mostly there are friendly hearings attended only by the proponents and energy sector lawyers. Those same rules were infuriating to those in northwest British Columbia trying and failing to persuade the JRP to take seriously many of the concerns of the region. The rules of evidence and procedure were baffling to lawyers practicing in BC; even the highly experienced lawyers from the BC Department of Justice were chewed out by the JRP in Prince George for not following proper procedures.
The JRP seemed to believe that time stopped at the evidentiary deadline, and although it acknowledged that Northern Gateway was a 50 year project, the panel didn’t need to know anything new.
A careful reading of the two volumes of the Joint Review Panel report and decision clearly shows that JRP finding was not, as one columnist called it, a triumph of science over emotion, but a proceeding that was biased from the outset to find in favour of Enbridge. It is clear that even though the Joint Review Panel did impose 209 conditions on Northern Gateway, reading those almost 500 pages one sees time and time again that Northern Gateway’s evidence and assurances were accepted at face value, while the panel treated the evidence and testimony from opponents with a much higher level of skepticism.
Moving to Calgary
One of my sources once told me that the “NEB is nothing more than an extension of the Petroleum Club.” In the 1991 budget, then Prime Minister Brian Mulroney moved the NEB headquarters from Ottawa to Calgary as a political gift to Alberta.
At that time the move was also seen as practical, Alberta was still complaining no one in Ottawa was listening to it. So if the Conservative government moved the NEB to Calgary, it would be there listening to the oil patch. NEB offices were scattered across the country, consolidating them in Calgary seemed, at the time, to be a way of saving taxpayers’ money and enhancing internal communications.
Seen now, about 25 years later, it’s clear the NEB move from its Ottawa headquarters and regional offices to Calgary was a disaster waiting to happen. Over the past quarter century, despite its claims of independence, the NEB and its staff have become so embedded in the oil patch energy culture of Calgary that (probably subconsciously) the NEB has shown that it is largely incapable of really taking seriously the culture of British Columbia on issues such as the Northern Gateway and Kinder Morgan projects. The NEB Calgary culture is also colliding,with the concerns and culture of other parts of the country as diluted bitumen pipelines head eastward.
The Conservative omnibus bills that gutted environmental protection and speed up the review process has made things much worse–at least until this week.
Now the Supreme Court has sent a shot across the bow of the full steam ahead National Energy Board, compelling the board to put much more weight on the concerns of First Nations.
The decision upholding the Tsilhqot’in claim to its traditional territory means the NEB and any future joint review panel (whether involving multiple federal agencies or federal agencies and a province) are going to have to take the concerns of First Nations and indeed all Canadians a lot more seriously—and the future of the planet as well, as described in the first part of this analysis. Chief Justice Beverly McLaughlin wrote that on First Nations` traditional territory:
that it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.
“Future generations” is the key phrase.
Future generations could undermine that whole world view of the Joint Review Panel, since the panel so casually dismissed the fears of a major disaster on the coast, saying it was “unlikely” and could be “mitigated.”
The JRP basically had a so-what attitude to British Columbia, arguing that since parts of the British Columbia environment had already been degraded any future environmental problems would be minimal and could be “mitigated.”
While in the introduction to its definition of the Public Interest, the JRP says
If approved and built, the Enbridge Northern Gateway Project could operate for 50 years or more. Sustainable development was an important factor in our environmental assessment and our consideration of the public interest. The project would have to meet today’s needs without compromising the ability of future generations.
Sounds like that might match the Chief Justice. But, as the old saying goes, the devil is in the details. And just a few paragraphs later, the JRP says:
Our assessment of the project’s effects on residents and communities Considering Northern Gateway’s project design, its commitments, and our conditions, we concluded that the project’s potential effects on people’s land, water, and resource use could be mitigated. We were not persuaded that construction and routine operations of the project would have a negative effect on the social fabric of communities in the project area. We also were not persuaded that the project would adversely affect the health and well being of people and communities along the route or in coastal areas. We found that the net overall economic effects of the project would be positive and would provide potential benefits and opportunities to those individuals and businesses that choose to participate in the project.
The JRP’s attitude toward a major disaster was “trust Enbridge.”
We found that some level of risk is inherent in the Enbridge Northern Gateway project, and that no party could guarantee that a large spill would not occur. We found that a large spill, due to a malfunction or accident, from the pipeline facilities, terminal, or tankers, is not likely.
We found that Northern Gateway has taken steps to minimize the likelihood of a large spill through its precautionary design approach and its commitments to use innovative and redundant safety systems, such as its commitments to address human error, equipment failures, and its corporate safety culture. These commitments and all others made by the company
Oh well, the ecosystem will recover eventually—a conclusion that could be reached only by ignoring the evidence from Prince William Sound, site of the Exxon Valdez spill.
We found that, in the unlikely event of a large oil spill, there will be significant adverse environmental effects, and that functioning ecosystems recover through mitigation and natural processes.
We found that a large oil spill would not cause permanent, widespread damage to the environment. The extent of the significant adverse effects would depend on the circumstances associated with the spill. Scientific research from past spill events indicates that the environment recovers to a state that supports functioning ecosystems similar to those existing before the spill. We found that, in the unlikely event of a large oil spill, there would be significant adverse effects on lands, waters, or resources used by residents, communities, and Aboriginal groups.
We found that, in rare circumstances, a localized population or species could potentially be permanently affected by an oil spill. Scientific research from a past spill event indicates that this will not impact the recovery of functioning ecosystems.
In other words, some communities, probably aboriginal communities, would have be sacrificed in the public interest and the economics of Alberta while the economy of that part of British Columbia would be destroyed.
Will the JRP have to start over?
The environmental law community and First Nations leaders are already taking a look at another paragraph in the Supreme Court judgement. Paragraph 92 in lawyer speak.
One of the many reports comes from West Coast Environmental Law which noted in an e-mail
[T]he Tsilhqot’in decision, Canada’s highest court brings home the implications of this for Enbridge and other project proponents:
Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward.
For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.
And what about the overhaul of environmental legislation in 2012 to smooth the way for pipeline and other industrial development?
The court notes: “Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.”
In other words, the Supreme Court decision resets everything.
It could nullify the recent decision by the Prime Minister to permit the Northern Gateway to go ahead. Or it could mean, especially given the number of court challenges just to the JRP, that, in light of the Tsilhqot’in decision the panel will be ordered by a court to go back to the drawing board and reconsider its findings.
Then there are the pending challenges to the Harper decision allowing the Northern Gateway to go ahead. Sources told Northwest Coast Energy News that the first of a number of court challenges were to be filed last week. It is likely that after the holiday weekend, lawyers will be rewriting their filings and their briefs in light of the Tsilhqot’in decision and presenting the Federal Court with those challenges some time in July.
The justices of the Supreme Court did allow a public interest exemption on the use of First Nations land for a larger purpose, but there must now be genuine consultation and the public interest will likely have be proven beyond a reasonable doubt, it can’t just be the whim of a prime minister with a tame, unquestioning caucus who decides what is in the public interest.
Who consults whom?
In the decision, Chief Justice McLaughlin wrote:
Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group
The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.
Compare that again with what the JRP said. As with the environmental impact it begins by saying:
The Panel finds that the magnitude, extent, and potential impacts of this project required an extensive program of public consultation. The Panel considers thorough and effective consultation to be a process that is inclusive of, and responsive to, all potentially-affected groups and individuals.
Then the JRP says:
The Panel notes that, among potentially-affected parties, there were differing perspectives on what constitutes a thorough and effective process of consultation. There were also different views among some parties about how consultation should occur, and their roles and responsibilities during consultation.
The Panel believes that it is critical for all parties to recognize and understand their respective roles and responsibilities for achieving effective dialogue during consultation. The Panel noted the principles of thorough and effective consultation at the beginning of this chapter. The Panel finds that these principles require that a process must provide timely, appropriate, and effective opportunities for all potentially-affected parties to learn about a project, provide their comments and concerns, and to discuss how these can be addressed by the applicant.
So what does it mean?
The JRP starts off by giving Northern Gateway a slap on the wrist:
The applicant [Enbridge] must be genuinely responsive. Affected parties have an ongoing and mutual responsibility to respond to opportunities for consultation, to communicate concerns they may have, and to discuss how these can be addressed.
But then it goes on in the same paragraph:
Consultation requires trust, mutual respect, and relationship-building. All parties have an obligation to seek a level of cultural fluency, in order to better understand the values, customs, needs, and preferences of the other parties involved in the consultation process. All parties may be required to adjust their expectations in response to the information, concerns, and interests raised and considered through the process. The Panel observed that this approach did not always occur in this proceeding.
Get the phrase “all parties.” It is clear here that the JRP is taking on the First Nations and other opponents for not seeing Northern Gateway’s point of view, since it accepts, as seen below, Northern Gateway’s contention that it is doing a good job with consultation,
And the word “trust.” Again the Alberta-bound JRP (the panel had no members from British Columbia, two from Alberta, one from Ontario) are saying “trust Enbridge.”
Unfortunately after a decade of operating in the northwest, and despite its spin, Enbridge has failed time and time again to establish trust with First Nations and it has equally failed to establish trust with a significant number non-aboriginal residents of the northwest.
The companies developing LNG projects have, for the most part, established a level of trust.
The joke up here is now so old it’s a cliche (but still unknown to the eastern media) where an LNG executive says, “We look at what Enbridge did and do the exact opposite.”
The Panel accepts Northern Gateway’s view that consultation is a process which should ensure that all parties are better informed through consultation, and that it involves being prepared to amend proposals in light of information received. In this regard, the Panel notes that Northern Gateway made numerous changes to the design and operation of the project in response to input provided by the public, landowners, governments, and stakeholders
In fact, Northern Gateway is still fumbling the ball.
It is true that Northern Gateway did change its plans and put another $500 million into the plans for the project–after a lot of public pressure and growing controversy during the JRP hearings over its plans.
Equally telling was Northern Gateway’s dismissal in its final arguments (arguments accepted by the JRP) that there was no earthquake hazard in the region, despite two major earthquakes at Haida Gwaii and southern Alaska just months earlier, both of which shook Kitimat.
In the final oral arguments, Northern Gateway’s lawyer Richard Neufeld summarily dismissed the fears of the Haida and Heiltskuk First Nations about destruction of the herring spawning beds because, he said, first, the chances of a tanker disaster were unlikely and second, even if there was a tanker disaster it was even more unlikely that it would occur during the spawning season. (Not that the spawning season matters, herring beds in San Francisco Bay are still damaged years after a spill there).
Now with the Tsilhqot’in decision, Enbridge can no longer summarily dismiss those fears. The companies who have proposed liquefied natural gas projects are meeting with anyone, including avowed opponents, and opening dialogues, even if both sides continue to disagree. Despite its spin, accepted by the political pundits and eastern business media, those who live in the northwest know Northern Gateway’s consultations and engagement, so far, have mostly been with friendly groups and friendly audiences.
The Supreme Court decision is going to change that attitude in the coming weeks. If Enbridge wants Northern Gateway to go ahead, the company is going to have to genuinely engage with First Nations. Given all the damage created by Enbridge over the past decade, that engagement is unlikely to change anything.
The Supreme Court decision is going to have one more consequence.
Eventually, in a few years, the decision will negate that stupid attitude from the conservative media and some in the business community that the people of northwestern British Columbia are against all development. That was never true but it’s a convenient excuse for those columnists and conservatives not to question their own assumptions.
If the reporters and columnists had bothered to come up here, if the press-release dispatching business leaders had bothered to leave their executive suites, they’d know what northwestern BC wants is responsible and sustainable development, not quick in and out profits.
The Supreme Court decision means that any future industrial development in the northwest will be much different from anything seen in the past because First Nations must be involved from the beginning.
Given its sorry track record, it is unlikely that Enbridge will be part of that development. but others will profit, yes profit, from that failure.
In the coming years it is also likely that there will be a new approach to development from the National Energy Board after they begin to see their narrow oil-patch friendly approach and rulings struck down by the courts quoting the Tsilhqot’in decision.
Both Prime Minister Stephen Harper and the Conservative political minister for British Columbia, James Moore, have brushed off Kitimat’s concerns about the Northern Gateway Pipeline after a majority of residents voted to oppose the project.
Even though Northern Gateway is a high priority for the Harper government, the Prime Minister did not bother to sign the letter himself. Instead it was Salpie Stepanian , an assistant to the prime minister who responded to the District for “taking the time to write.”
James Moore responded with a much shorter letter but apparently did sign the letter himself (if it wasn’t a sign-o-robot). He too thanked the District for writing and asked to be kept informed. Both letters were released at Monday’s District of Kitimat Council meeting.
Notes: On Monday District of Kitimat Council approved a $2500 support grant to the Kitimat EconomicDevelopment Association that says it is “active in pursuing development that will return Kitimat to a robust, self-sufficient community.” The grant was conditional in that it cannot be used for “initiatives Council does not support”–in other words Enbridge.
As expected, the federal government has approved the Northern Gateway project. In a news release this afternoon, Natural Resources Canada said that the “Government of Canada” had accepted the 209 conditions set by the Joint Review Panel for the Northern Gateway.
In recent years, Stephen Harper’s government has usually issued news releases headlined “the Harper government.” The headline on the NRC website also emphasizes the 209 JRP conditions and not the approval of the overall project, which is mentioned formally in the last line instructing the National Energy Board to issue the ” Certificates of Public Convenience and Necessity.”
Government of Canada Accepts Recommendation to Impose 209 Conditions on Northern Gateway Proposal
Proponent must demonstrate how conditions will be met, undertake further consultations with Aboriginal communities as part of next steps in regulatory process
Natural Resources Canada
The Honourable Greg Rickford, Canada’s Minister of Natural Resources, today issued the following statement outlining the Government of Canada’s decision after the Joint Review Panel’s independent review of the Northern Gateway Pipelines proposal to construct and operate two parallel pipelines to transport crude oil between Bruderheim, Alberta and Kitimat, British Columbia, and a marine terminal at the port of Kitimat. The proposal was submitted by Northern Gateway Pipelines Limited Partnership to the National Energy Board (NEB) for an environmental assessment and regulatory examination in 2010. This constituted the beginning of the regulatory process.
The Joint Review Panel for the Northern Gateway Project was an independent body established by the Minister of the Environment and the National Energy Board to review the project. The Panel’s rigorous science-based review included feedback from over 1,450 participants in 21 different communities, reviewing over 175,000 pages of evidence and receiving 9,000 letters of comment. The NEB is responsible for regulating some 73,000 kilometres of pipelines transporting crude oil, natural gas and petroleum products across Canada.
“In December 2013, the Joint Review Panel found that construction and operation of the Northern Gateway Pipelines project is in the public interest, subject to 209 conditions being met by the proponent. After carefully reviewing the report, the Government accepts the independent Panel’s recommendation to impose 209 conditions on Northern Gateway Pipelines’ proposal.
“Today constitutes another step in the process. Moving forward, the proponent must demonstrate to the independent regulator, the NEB, how it will meet the 209 conditions. It will also have to apply for regulatory permits and authorizations from federal and provincial governments. In addition, consultations with Aboriginal communities are required under many of the 209 conditions that have been established and as part of the process for regulatory authorizations and permits. The proponent clearly has more work to do in order to fulfill the public commitment it has made to engage with Aboriginal groups and local communities along the route.”
The National Energy Board will now issue Certificates of Public Convenience and Necessity.
At least three rallies are planned for Kitimat on Tuesday, June 17, as BC Premier Christy Clark is scheduled to arrive to announce a new agreement with the Haisla Nation and, a few hours later, the Harper government will announce its decision on approving the Northern Gateway project.
The Harper government is expected to approve the highly controversial pipeline, terminal and tanker project and once that happens, it is likely that Kitimat will be the focus of protests against (and perhaps for) Northern Gateway.
District Council was told Monday, June 16, that the RCMP and District staff have had meetings to come up with contingency plans if large numbers of protesters come to Kitimat in the future.
Answering a question from Councillor Phil Germuth, Staff Sergeant Phil Harrison, Kitimat detachment commander told Council that RCMP had met with Kitimat deputy chief administrative officer Warren Waycheshen to discuss the groups they were aware of that might be protesting in Kitimat.
“It’s actually hard to plan for some of them, we don’t know how large they’re going to be, “Harrison told Councl, “There are all sorts of different factors that go into coming up with an operational plan for any kind of a demonstration
“We’ve talked about where we may be able to hold demonstrations, how we are going to do accommodate the people, what are we going to do for sanitation,
what we are going to do for garbage collection. all that kind of stuff,” the staff sergeant said.
“Until we get more information regarding what kind of demonstration it’s going to be, it’s hard to plan for. We do encourage any leaders of any organization that’s going to be demonstrating to come and chat with us.
:Demonstrations are fully legal in Canada. We have no problems with those. Our concern is when it comes to the safety of the public and so, therefore, if there isanything we can do to help to mitigate any kind of problems that might arise if the safety of the public, we’d like to know that before hand.”
Waycheshen said it was up to Council to set policy but noted that the staff has been working on long term plans, saying. ‘We do a lot of pre-planning and then just wait to see if it comes or not.”
Waycheshen said that while the RCMP and District staff have studied the more obvious locations, “as the RCMP point out, there are certain times when people won’t congregate where you want them to, so we have to work around their locations.’
“We’ve looked at the need for water, porta-potties, meals and stuff,” Waycheshen said. “It’s always tough until you know the numbers When they come in, are they going to be self sufficient or not?
“We’ve talked to our suppliers to make them aware that this could be happening at short notice, so they’re aware of it,
“We’ve done as much as we can And almost like the emergency plan, we’ve talked to the emergency planning group for the District. There might be a point where we activate the EOC [Emergency Operations Centre] plan, not to treat it as an emergency but to give you a lot more flexibility to react in a quick way.”
“Some of the suppliers say we should be able to get you this and that, but we will have to know at the time.
“It’s really contingent on when they’re coming in. Our purchasing department has been really good about contacting people, this is the potential of what we could
It all starts on Tuesday when Premier Clark is scheduled to arrive at the old hospital site to announce the agreement with the Haisla.
Douglas Channel Watch says it plans to rally at the “Downtown Kitimat” sign across the street from the hospital site at 10:45. Kitimat’s teachers who will officially be on strike on Tuesday, plan their own rally at Centennial Park at the same time.
The Harper government will announce its decision on the Northern Gateway shortly after 4 p.m. Eastern Time, after the market close in the east, 1 p.m, Pacific Time.
Shortly after the government announcement, Douglas Channel Watch will then hold a second rally in Centennial Park.