Alberta First Nations band wins right to trial over oil sands’ effect on treaty rights

A small First Nations band in Alberta has racked up a big win against the energy industry, clearing the way for a trial over whether its treaty rights are being infringed upon as industrial development such as the oil sands expands.

The Beaver Lake Cree Nation argues the so-called cumulative effects of oil sands and other industries such as mining and forestry violated their treaty rights. The provincial and federal governments grant permits which allow for development. Beaver Lake Cree Nation launched a legal battle five years ago and now Edmonton and Ottawa have lost their attempt to have it tossed out.


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The cumulative effects argument is a touchy topic in Alberta and if the Beaver Lake Cree Nation comes out on top, it could force the governments to revamp the way they review and approve industrial projects – namely the oil sands. In short, it could put a damper on a key driver of the Canadian economy.

“This case is about limiting the development of the tar sands,” lawyer Drew Mildon, who represents Beaver Lake Cree Nation, said in an interview.

Energy, mining and forestry projects are typically judged case-by-case, but Beaver Lake Cree Nation argues the overall effect of numerous projects hinders their traditional way of life. The Beaver Lake Cree Nation believes its ability to hunt, fish, and trap have been dented because of roughly 300 projects in which about 19,000 permits have been granted, according to a judgement from the Court of Appeal of Alberta delivered April 30.

Canada, the judgement said, handed out at least seven of these permits, with the remaining falling to Alberta. The land involved covers a “large portion” of northeast Alberta – both inside and outside of any reserve. It includes the Cold Lake Weapons Range.

“The basic question of the case is: Are the cumulative impacts of the tar sands development in their territory risking the treaty rights or rendering them meaningless? Because you can’t do that,” Mr. Mildon, who works for Woodward & Co. and is based in Victoria, said. “They’re constitutionally protected.”

The judgement means the case can go to trial, which Mr. Mildon expects to begin winding its way through the legal system this fall. He believes the appeal judgement demonstrates the Beaver Lake Cree Nation has a viable case.

“Usually in big cases like this that really threaten development . . . . the process is usually to try burn the First Nation out at the early stages by outspending them, and that tends to happen through a bunch of pre-trial motions,” he said.

“It’s big news to get to this stage.”

Originally, the case was even larger in scope as the Beaver Lake Cree sought to revoke the authorizations for past and current developments on lands in northeastern Alberta. But the court shot that down. Mr. Mildon said his clients are now seeking compensation for losing hunting and fishing rights due to those past and current projects.

“But really the question is how does the First Nation get more management control over future infringements?”

The 800-person Beaver Lake Cree are footing most of their own legal bills, Mr. Mildon said, with significant start-up donation from England’s Co-operative Bank and others.

District of North Van City Council will hear about Kinder Morgan!

At 7pm Thursday, Sept 12th, the District of North Van will be holing a debate of sorts about Kinder Morgan. (S It is VERY important that critical voices are heard about Kinder Morgan expansion and the effects on Burrard Inlet.

DNV has given very little notice of this event to people in North Vancouver. In fact, just days ago , there was no information available on their website, nor via a phone inquiry.

Much of DNV sits directly opposite KMs tanker loading facility. The citizens in North Vancouver need to know what happened in Burnaby, and what may happen in DNV in event of earthquake, spills, and air quality from more and larger tankers.

We will see you there!

After correctly predicting leaks, activist continues crusade against pipeline

For the past 18 years David Ellis has been travelling around British Columbia in a van quietly selling rare, old books.

But his life took an unexpected detour last year when he stumbled on The Building of Trans Mountain: Canada’s first oil pipeline across the Rockies.

“It opened my eyes,” says Mr. Ellis of the 1954 publication that describes the use of construction methods and materials that would not be acceptable today.

It inspired him to hike parts of the pipeline route for a first-hand look.

Since then, Mr. Ellis has been on a crusade against a proposal by Kinder Morgan to twin the pipeline. The project would increase the flow of oil through the system from 300,000 barrels per day to 890,000 barrels.

Mr. Ellis is doing his best to rally opposition, saying that not only should the Kinder Morgan project be rejected as a threat to the environment, but the existing pipeline should be shut down too.

“The pipeline that’s there now is old, antiquated technology. It’s breaking down. It should be removed,” he says. “There are hundreds of clamps on it [re-enforcing weak spots]. It’s like a 60-year-old garden hose.”

And although Kinder Morgan is proposing to build a new, state-of-the-art pipeline, which would have better steel and an increased number of safety valves, Mr. Ellis says it is still too risky given the mountainous terrain and the route that parallels and crosses important salmon rivers, including the Fraser.

It might be tempting for Kinder Morgan to ignore a pesky critic who doesn’t have any powerful NGOs backing him, and whose research is based largely on an old book.

But Mr. Ellis’s plodding, unrelenting opposition, which has included a barrage of e-mails to government and media, is starting to get noticed. This summer he drew a small crowd to the summit of the Coquihalla Pass, to walk along the pipeline with him looking for leaky spots. Among those who joined him were members of the Pipe Up Network, which is opposed to both the proposed Enbridge Northern Gateway project and the Kinder Morgan expansion. And according to The Valley Voice, about 30 First Nation leaders also attended, including Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs and Chief Art Adolph of the Lillooet Tribal Council.

So Mr. Ellis is no longer walking alone.

One of the reasons he has been getting a following is a letter he wrote in August, 2012, to Natural Resources Canada, in which he warned the Kinder Morgan line was going to spring leaks.

Mr. Ellis said the old pipeline was designed for light crude, but Kinder Morgan also uses it to transport diluted bitumen, which puts it under greater pressure.

“Putting tar-sands bitumen down this very old pipe now, will, I predict, lead to a blowout and spill, quite soon. It will most likely rupture near Hope, or just up the Coquihalla River,” he wrote.

Ten months later the pipeline sprang a leak southwest of Merritt and two weeks after that ruptured again, near Hope. Both leaks were small (12 barrels and 25 barrels) and Kinder Morgan, which prides itself on its safety record, responded quickly, mopping up the oil before it did any damage.

But Mr. Ellis’s credibility soared. With remarkable accuracy he had predicted where and when leaks would occur in a pipeline that is more than 1,000 kilometres long.

Kinder Morgan, which has “zero tolerance” for spills, points out that it has had a remarkably good record with the Trans Mountain Pipeline. In 60 years it has shipped billions of barrels of oil, spilling only a few thousand in 78 incidents, the vast majority of which were minor.

“They have been incredibly lucky,” says Mr. Ellis when asked about that record. “It’s inevitable that there will be a blowout on that line.”

He was right once. Kinder Morgan must be hoping he’s not again.

Stand up for Science Rally

Monday, September 16, 2013
Time 11:00am until 1:00pm
Where Vancouver Art Gallery – North plaza on Georgia Street


Fed up with the erosion of science in Canada? Want our government to support science in the public interest? Think that decisions should be based on evidence and facts instead of ideology? Join us on September 16th to Stand up for Science!

Three separate investigations launched into CNRL’s uncontrollable oil spill

It has been three months since the Alberta Energy Regulator (AER) first reported on the subsurface spills occurring at Canada Natural Resources Ltd. (CNRL) operations on the Cold Lake Air Weapons Range, 300 kilometres northeast of Edmonton.

Environment Canada told Postmedia’s Mike De Souza yesterday that the federal department “is currently assessing the situation with respect to federal environmental laws within its jurisdiction, and has opened an investigation.”

The underground leaks, discovered on four separate well pads, have been releasing a mixture of bitumen emulsion – a mixture of oil and water – uncontrollably since at least May, although AER reports suggest the spill has been ongoing for much longer. The regulator forced CNRL to suspend its high pressure cyclic steam stimulation (HPCSS) operations in one project area “earlier this year,” according to an AER incident report released in July.

HPCSS, also known as “Huff and Puff technology”, forces steam underground at extremely high pressures over prolonged periods of time. The high pressure steam softens underlying bitumen, a dense heavy crude and sand mixture found beneath large regions of the boreal forest, causing the viscous oil to separate from the sand. The pressure forms cracks in the bedrock, allowing the bitumen emulsion to flow through the wellbore and up to the surface.

The high pressures used in the process may be a factor in the underground leaks.

In a recent statement CNRL stated the company “believes the cause of the bitumen emulsion seepage is mechanical failures of wellbores in the vicinity of the controlled areas. We are in the process of identifying and investigating these wellbores.”

On Friday, AER spokesperson Bob Curran told DeSmog Canada, “we haven’t determined the cause of the spill at this time.”

According to AER figures released yesterday, 1275.7 cubic metres of bitumen emulsion have been recovered on all four spill sites. That equals just over 8023 barrels of oil or more than 1.2 million litres of oil. For comparison, the most expensive onshore oil spill in US history, when Enbridge’s Line 6B ruptured near the Kalamazoo River in Marshall, Michigan, released 3 million litres.

The AER announced a “subsurface investigation” was ongoing on August 20, 2013, although it is unrelated to any investigation currently being carried out by Environment Canada.

“When we say a subsurface investigation what that means is our investigation is focused on what subsurface problems have caused this spill to arise. There’s no category of subsurface investigations – it’s a generic terms that’s applied,” he said.

Both the AER and Alberta’s Energy and Sustainable Resource Development (ESRD) are investigating the spill, Curran noted.

“[AER] is looking at the source of the problem and the company’s actions as they pertain to the issue. ESRD is looking more at impacts,” he said. “Environment Canada hasn’t contacted us about their investigation.”

Curran said he is unable at this time to comment on the scope of Environment Canada’s investigation or whether it will overlap with current efforts of AER or ESRD.

“Certainly our investigation is complimentary to ESRD’s on the provincial side,” he said.

Issues Manager Nikki Booth said ESRD is “working cooperatively” with Environment Canada although “the investigations will be complete separate because different pieces of legislation or contraventions are being investigated.”

AER, ESRD and Environment Canada each have their own independent investigation, she said. “We work with AER on theirs and they on ours – so it’s all very cooperative.”

“We have the EPEA (Environmental Protection and Enhancement Act) and the Water Act,” said Booth, which are the relevant pieces of legislation for the ESRD investigation.

ESRD is not releasing much information at this time because the investigation is ongoing, Booth added. “We want it to be a fair and thorough process. Once the investigation is wrapped up there will be more information we can provide.”

According to an updated incident report released yesterday, August 29, “2 beavers, 40 birds, 101 amphibians, and 33 small mammals [are] deceased” as a result of the ongoing spill.

This article originally appeared on DeSmog Canada.