Fire department worried about tank farm expansion

Deputy fire chief paints grim worst-case scenario if tank farm were to catch fire.

Burnaby’s deputy fire chief is raising alarming safety concerns about Kinder Morgan’s plan to expand the Burnaby Mountain tank farm.

Dept. Fire Chief Chris Bowcock is worried the 13-tank storage facility, slated for expansion on the south side of Burnaby Mountain, would be an uncontrollable disaster in the event of a major fire or earthquake. His worst-case scenarios involve clouds of poisonous gas, explosions of molten crude and fires burning for days – all close to residential areas and Forest Grove Elementary.

“I think from the fire department’s perspective, we are coming at this as community advocates for fire and safety,” Bowcock told the NOW. “We believe our responsibility is to the citizens of Burnaby – the protection of their lives, their property – and the health of the community as a whole.”

Kinder Morgan filed its application to the National Energy Board in December. The company is proposing to twin the Trans Mountain pipeline and expand the tank storage facility, increasing capacity from 1.6 million barrels of oil to 3.6 million by adding 14 new tanks.

According to Bowcock, Kinder Morgan raised three safety concerns about the tank farm in the application: potential discharge of sulphur-based compounds, such as hydrogen sulphide, a poisonous gas; toxic smoke plumes in the event of a fire; and a “boil-over” event, when a tank is left to burn for an extensive period of time and eventually explodes, spraying molten crude the length of 10 tanks.

“So if you have a 100-foot tank, the dispersal rate of that molten crude would be 1,000 feet – that’s a great distance,” Bowcock said.

For 15 years, Bowcock worked as an emergency management consultant and conducted field training for tank-fire suppression and pre-planning in the Alberta oil sands. While there, he learned a thing or two about tank farms: Don’t put them on mountains and keep them on flat ground and away from residential areas, for instance. According to Bowcock, the tanks must be placed no closer than the diameter of the tank, so if you have a 100-foot diametre tank, the next tank should be at least 100 feet away. There should also be 360-degree access to the tanks, in case of emergency.

Bowcock is concerned about increasing density of the tanks, which he says increases the chances of a fire at one tank spreading to another.

The massive oil tanks have been on Burnaby Mountain for decades, without any major explosions or firestorms, but that doesn’t seem to reassure Bowcock.

“You have to balance the frequency of occurrence with the consequences of occurrence,” he said, adding the region is due for a major earthquake.

And if a fire were to start at the tank farm, it would very likely burn for days, according to Bowcock.

“The amount of heat firefighters are taking on, the amount of risk you’re exposing them to – if you can’t create a safe environment to fight the fire, it may not be extinguishable,” he said, adding it can take four to seven days for a tank to burn off all of its fuel.

According to Bowcock, tank farm fires can start from lightening strikes, even though there are “counter measures” on the tanks.

“Lighting hits high points, and it hits metal objects. Depending where a tank farm is located it can be more or less susceptible to lightning strikes,” Bowcock said.

Any kind of “hot work” – welding, for instance – or errors, human or otherwise, could also start a fire.

The fire department’s concerns were included in the City of Burnaby’s information request, recently filed with the National Energy Board, as a part of the pipeline hearing.

“We have a lot of questions based on the application. The application didn’t provide much specific information on how these risks and emergencies could be managed and reduced,” Bowcock said. “We have concerns about whether it’s even possible to reduce these risks, … and if it is possible, we have no info on how that’s going to be achieved.”

Bowcock said the Kinder Morgan expansion proposal presents too many uncontrollable risks that could have unacceptable consequences for the NEB to accept the proposal.

Oil and gas facilities are required to have their own firefighters onsite, as the prime responsibility for handling a potential fire falls on the operators. However, the city’s fire department may be called on to help, especially with rescues or evacuations, Bowcock explained, and Kinder Morgan’s firefighting capability is “at question,” he added.

The NOW posed Bowcock’s concerns to Ali Hounsell, spokesperson for the Trans Mountain expansion.

“First and foremost, there’s nothing more important to Trans Mountain than the safety of our neighbourhoods, the community and our employees,” she said. “Safety is our top priority, and in 60 years of operation in Burnaby, we’ve never had a fire at the terminal.”

Hounsell said the pipeline application included risk assessments that deal with worst-case scenarios, and worst-case scenario planning assumes there’s no emergency response to a fire, which in reality would not be the case.

“It is important to remember that the assessments contained in the application are preliminary, and we will use the reports to inform the design of the facility and development of our operational emergency response plan. So, we expect the final design will result in significant decreases in the mitigated risks that you see prevented in these types of reports,” she said. “We’ll develop more detailed emergency response plans for the expansion, and we’ll provide updated risk assessments as well.”

Hounsell wasn’t sure when that information will be available, but since the fire department’s concerns were raised in the first round of information requests for the pipeline hearing, Kinder Morgan will formally reply through the hearing. The deadline for the company to respond is June 13.

“We would also look forward with local emergency responders to help develop any response plans moving forward,” Hounsell added.

As for the hilly location and close proximity to homes, Hounsell said there is no proposal to move the facility but reiterated that there have been no fires in six decades.

© Burnaby Now

More trains moving oil through B.C. raise fears of a Lac-Mégantic disaster

GAIL TERRY WAS standing in her living room last fall when a train began rolling past her home in South Surrey. Having lived beside the railroad tracks for more than 20 years, she barely noticed its rumble.

But a glimpse of the train alarmed her, Terry recalled in a telephone interview. For the next seven or eight minutes, black tanker cars lumbered by her home in Crescent Beach, near the north edge of White Rock. Terry counted 110 before she was distracted by a phone call.

“It was just a very ominous sight,” she said. “It went on, and on, and on.”

Terry said her mind jumped to the July 2013 disaster in Lac-Mégantic, Quebec, when 74 runaway cars carrying crude oil rolled into the centre of town, derailed, and exploded, killing 47 people.

For the next three months, Terry watched the trains go by, growing increasingly worried about their contents. After obtaining a list of hazardous-materials codes that are posted on the outside of railcars in Canada, her fears were confirmed when she learned the trains were carrying Bakken formation crude oil, the same volatile petroleum from North Dakota that destroyed downtown Lac-Mégantic.

Terry wrote a letter expressing her concerns to the mayor of White Rock, Wayne Baldwin, who told the Straight he had no idea Bakken crude was moving through his town until Terry brought the matter to politicians’ attention.

“Our first responders didn’t even know about it until about a month after it started,” Baldwin said in a telephone interview. “I think we need to have a real good look at dangerous goods and the corridors that they go through. They shouldn’t be going through heavily populated areas.”

White Rock joins a number of jurisdictions across North America that are concerned about the transport of Bakken crude and other forms of oil through their communities. Bakken crude was also involved in an accident in Casselton, North Dakota, in December 2013, when a mile-long train derailed and its contents exploded, sending a massive fireball hundreds of feet into the air, and in November 2013, when another train derailed and caused a series of large explosions in rural Alabama.

Baldwin noted that local municipalities have no say in what rail operators move through their cities and, in many cases, no idea what trains are carrying.

According to information provided to the Georgia Straight by Transport Canada, the number of railcars that carried crude oil and diluted bitumen through British Columbia increased from 41 in 2011 to 3,381 in 2013.

For North America, the increase has been so sharp that in January 2014, transport authorities in Canada and the United States took the unusual step of issuing a joint call for regulators to improve safety standards for the transport of oil by rail.

“The amount of crude oil now being shipped by rail in North America is staggering,” reads a January 23 Transportation Safety Board of Canada (TSB) media release. “In Canada in 2009, there were only 500 carloads of crude oil shipped by rail; in 2013, there were 160,000 carloads. In the U.S. in 2009, there were 10,800 carloads; and in 2013, there were 400,000 carloads.”

A June 2014 Canadian Association of Petroleum Producers report states that delays on pipeline projects designed to move heavy crude from the Alberta oilsands (also known as the tarsands) to ports in British Columbia will likely result in an increased reliance on rail.

“In the absence of adequate capacity in Western Canada, rail transport is expected to continue to rise due to the protracted regulatory processes for new pipelines and other uncertainties,” the report reads.

It projects that by the end of 2015, the transportation of crude oil by rail in Western Canada will exceed one million barrels per day.

Two of the most significant setbacks to pipeline projects planned for B.C. came after that report’s publication, suggesting that its estimate could be conservative.

Pipeline delays push oil to rail

On June 26, the Supreme Court of Canada found that corporations must have the consent of First Nations before they proceed with projects on land where aboriginal people hold title. (The government can proceed without consent if a project can be “justified by a compelling and substantial public purpose”.) Since that ruling—known as the Tsilhqot’in decision—Union of B.C. Indian Chiefs president Stewart Phillip has told media that First Nations groups have launched at least nine legal challenges aimed at stopping the construction of the Enbridge Northern Gateway pipeline, which would transport diluted bitumen from the oilsands to a port in Kitimat.

Then, on July 14, the National Energy Board announced it was delaying its review of the Kinder Morgan Trans Mountain pipeline expansion by seven months.

At the same time that pipeline delays and a continent-wide spike in production are sending oil-by-rail numbers skyrocketing, train accidents in Canada are also on the rise.

According to TSB data, there were 110 derailments in B.C. in 2013. That number marks a five-year high, up from 91 in 2012, 99 in 2011, 100 in 2010, and 94 in 2009. Most incidents did not involve a hazardous material.

The situation in White Rock and Surrey has changed since city officials learned that Bakken crude was moving down the tracks along Crescent Beach. A spokesperson for BNSF Railway—the carrier for that route—claimed it’s been three months since it moved oil down that line.

“We were running it [oil] more frequently, but as of recently, there has not been that requirement,” Gus Melonas said on the phone from Seattle.

That could change, though, and Bakken crude oil could return to White Rock rails without local authorities even being told in advance.

Transport Canada declined a request for an interview.

The Transportation of Dangerous Goods Act requires that rail operators inform municipalities of hazardous materials moved through their jurisdictions but not until after trains have already come and gone.

Railways provide local authorities with aggregate reports on the nature and volume of dangerous goods transported through civic jurisdictions on a quarterly basis. Local governments and emergency responders then use that data covering past shipments to conduct risk assessments and draft emergency-planning procedures for future incidents. Transport Canada spokesperson Roxanne Marchand advised the Straight that carriers are also supposed to inform municipalities of any “significant changes” in goods transported “as soon as possible”.

Some Metro Vancouver mayors report that they are satisfied with this framework, while others have called for reforms. Baldwin and White Rock residents have become some of the Lower Mainland’s most vocal critics of oil by rail, but they’re not alone.

Crude oil from North Dakota’s Bakken shale formation, which blew up in Lac-Mégantic, is more volatile than petroleum from other parts of North America.
TRANSPORTATION SAFETY BOARD OF CANADA
Civic leaders left out of the loop

On the phone from the neighbouring city of Surrey, Mayor Dianne Watts said she finds the prospect of more oil by rail “problematic”.

“There has been crude that has been coming through for a number of years; the increase is what concerns me,” she told the Straight. “When you look at that increase of crude being railed through parts of densely populated areas, it is a cause for concern.”

Watts suggested that if Alberta’s heavy crude is going to come to B.C. shores one way or another, either by pipeline or rail, pipelines are likely the safer of those two options.

In Vancouver, Mayor Gregor Robertson has made oil pipelines and coastal tanker traffic a campaign issue ahead of elections scheduled for November 2014. He has publicly opposed Kinder Morgan’s proposed expansions of its Trans Mountain pipeline, which concludes in Burnaby and would increase the number of oil tankers moving through Metro Vancouver’s Burrard Inlet from 60 to 400 ships per year. But Robertson has so far remained silent on the issue of oil by rail.

On July 15, Vision Vancouver councillor Andrea Reimer attended a conference in Seattle that saw more than 100 civic officials from across the Pacific Northwest meet to discuss increasing volumes of oil and coal moving through their cities.

“Even before Lac-Mégantic, this was an issue on municipalities’ radar screens across the country,” Reimer told the Straight.

She conceded she isn’t aware of how much oil is moving through the City of Vancouver via rail today, but she argued that is part of the problem.

“If you’re not told until afterwards how dangerous something is, how do you come up with proper emergency-response plans or be prepared for that?” she asked.

On the phone from Burnaby, where Chevron has operated an oil refinery since the 1930s, Mayor Derek Corrigan similarly complained about a lack of advance information on what trains are carrying through populated areas.

“We’ve been begging to have information about exactly what products are moving through our cities so that our fire department and other emergency responders could be better prepared,” he stressed. “They say that they’re happy to tell us after they’ve done it, but that doesn’t do much good for me looking after the lives and safety of the people who may have to respond to an accident.”

Corrigan described the potential for a major spill involving oil by rail as a simple matter of probability.

“I’ve found one thing when it comes to industrial accidents: if it can happen, it will,” he said. “The more incidence of movement by rail, the greater the likelihood is that you’re going to have a serious accident.”

Corrigan recalled that it was only six months ago that a train derailed in Burnaby and spilled 270 tonnes of metallurgical coal, some of which fell into Silver Creek. “I can’t imagine if that were oil,” he said.

Acting City of Langley mayor Ted Schaffer reported that although up to 20 freight trains move through his city every day, staff report there hasn’t been a car carrying oil as far back as they checked, to the beginning of 2013.

“Our fire department, they get a quarterly report on railcars going through the city,” he said. “Nothing has been red-flagged by them at all.”

Mayor Darrell Mussatto of the City of North Vancouver—where several of the largest bulk terminals in the Lower Mainland are located—similarly said he was satisfied with the city’s relationship with rail operators and the safety procedures they partner on.

“I don’t believe we have much oil by rail coming through our community,” he said. “Our fire departments work to understand what’s being transported through, and we are able to respond if there ever is an incident.”

Richard Stewart, mayor of Coquitlam—which is also home to bulk terminals—did not grant an interview.

Environmentalists call products the problem

Canada’s two largest railway operators, Canadian National Railway Co. and Canadian Pacific Railway Ltd., both declined requests for interviews. The Ministry for Natural Resources and the National Energy Board both referred questions to Transport Canada, which refused to grant an interview. The TSB said that it was not doing interviews until its investigation into the derailment in Lac-Mégantic was complete.

Since the explosion in Lac-Mégantic one year ago this month, there have been movements in areas of rail safety. An investigation remains ongoing, but already several recommendations for reforms have been suggested by the TSB and subsequently adopted by Transport Canada.

A TSB website states that Class 111 cars, an older model deemed susceptible to “product release during accidents”, should meet enhanced protection standards when used to transport flammable liquids. Railway companies should also conduct route planning and analyses for dangerous goods that ensure risk-control measures are in place. And emergency-response assistance plans should be required for the transport of large volumes of liquid hydrocarbons (oil and natural gas).

According to a June 18 media release, the TSB is “pleased with the strong first steps” taken by Transport Canada.

In a telephone interview, Greg Stringham, vice president (oilsands and markets) for the Canadian Association of Petroleum Producers, noted that safety regulations for the transport of hazardous goods are undergoing a period of review and improvement in the wake of Lac-Mégantic.

Addressing some of Metro Vancouver’s mayors’ calls for real-time information on dangerous goods, Stringham claimed that the industry is “looking at a way of making that [information] readily available”. He remained optimistic about the Northern Gateway and Trans Mountain pipeline projects, but he acknowledged that railroads have become a “critical part of [oil] transportation”.

“Particularly in the short term, the rail companies have been able to provide what we call swing capacity,” Stringham said from Calgary. “We’re currently at about 200,000 barrels per day [by rail], and we see that that could grow to 600,000 or 700,000 barrels a day over the next two or three years. But that’s really dependent on how much pipeline capacity there is.”

B.C.’s lone Green MLA, Andrew Weaver, attracted criticism in February 2014 when he published a lengthy essay proposing that Enbridge’s Northern Gateway pipeline might not be the worst thing in the world if it were built with the condition that the province place a moratorium on the transport of diluted bitumen through coastal waters. He suggested that an oil refinery be constructed, possibly in Kitimat.

Weaver argued that if Alberta’s heavy crude is coming to B.C.’s coast, pipelines are a safer means of transport than rail. And if that oil is going to be exported via ship, it’s better that it be loaded onto tankers in a refined form that, in the event of a spill, is less environmentally destructive than diluted bitumen.

“If you want to say no to Enbridge and no to Kinder Morgan, you’ve got to think about these other things,” he said in a telephone interview. “These other things are rail traffic and the common-carrier obligation.”

Not only is trains’ cargo beyond the control of civic politicians, Weaver explained, even national rail operators don’t have a veto over the hazardous goods they transport.

The Canada Transport Act states that rail companies are legally obliged to carry “all traffic offered for carriage on its railway”. For hazardous materials, “adequate and suitable accommodation” must be provided.

“With pipelines and the trouble they are in, there is a huge potential for shipping bitumen in heated railcars,” Weaver said. “If it’s going to Kitimat [Northern Gateway’s western terminus], that would be along the Skeena River, and if it’s coming to Vancouver [where Trans Mountain ends], that would be along the Fraser River. In either case, this is a disturbing trend.”

Two of Vancouver’s largest antipipeline demonstrations were organized by Ben West, tarsands campaigner for ForestEthics Advocacy. The Straight asked West if environmentalists had picked the wrong target by focusing so much negative attention on the Northern Gateway and Trans Mountain pipelines. Did they let oil by rail slip under the radar to create an environmental problem worse than pipelines?

“The problem here is the products themselves, not the means of transporting them,” West replied. “Saying pipelines are better than rail or vice versa is like saying that chewing tobacco is better than smoking cigarettes. The problem, really, is tobacco, not the means of delivering it.”

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Policy changes aimed at reviving B.C. treaty process, gaining support for natural-resource projects

OTTAWA — The Harper government announced Monday sweeping policy changes aimed at reviving the B.C. treaty process and convincing more First Nations they should support major natural-resource initiatives in B.C.

Aboriginal Affairs Minister Bernard Valcourt’s new approach is in response to numerous criticisms over several years that the government has been inflexible in its approach to treaties, and that it has failed to adequately consult First Nations on controversial oilsands pipeline proposals.

Valcourt appointed Vancouver lawyer Douglas Eyford, the author of a critical government-commissioned report published last December, to lead a process to “renew and reform” a comprehensive treaty process that has produced just four deals in more than two decades of talks.

Ottawa also announced a more flexible approach to treaties, saying it is open to concluding interim agreements on specific issues rather than forcing First Nations to ratify final deals before they get any benefits.

And the government is establishing clearer standards on how government and industry meet their Supreme Court of Canada-mandated duty to consult First Nations on project proposals.

The federal government said the new approach is the result of years of consultations going back to 2009, and is not related to the recent landmark Supreme Court of Canada decision that gave a B.C. First Nation title to a large tract of land.

However, Monday’s announcement reflects the government’s preference for resolving claims at the negotiating table rather than risking similar court judgments.

“We are taking action to help address some of the key impediments to treaty negotiations in British Columbia, and engaging on broader reforms to advance reconciliation across the country,” Valcourt said in a statement.

“Our goal is to work in partnership so we can seize opportunities to promote prosperous communities and economic development for the benefit of all Canadians.”

Eyford will play a key role in the government’s initiative, being named Valcourt’s “special representative” to engage with First Nations and stakeholders involved in treaty negotiations to ensure Constitutionally-protected rights are recognized and affirmed.

Eyford “will host regional meetings with negotiation partners in key areas to complement engagement by federal negotiators at individual negotiating tables,” the release stated.

“This engagement will take place over the summer and into the fall of 2014, with completion of the process by the end of the year.”

Valcourt’s announcement was made public after a meeting with John Rustad, B.C. minister of Aboriginal relations and reconciliation, Sophie Pierre, chief commissioner of the British Columbia Treaty Commission, Grand Chief

Edward John of the First Nations Summit, and Dave Porter of the First Nations Energy and Mining Council.

The treaty process was launched in 1992, engaging 61 First Nations representing 104 of the 203 B.C. bands registered under the federal Indian Act.

But productivity has been painfully slow. Just four treaties involving eight First Nations have been ratified, while another four have agreements-in-principle. A further 44 are negotiating AIPs, according to the BCTC.

Among the frustrations expressed by First Nations leaders and other stakeholders has been Ottawa’s refusal, after a commission of inquiry into missing Fraser River salmon was struck in 2009, to negotiate fishery components to treaties.

Critics, including a report by the Conservative-dominated Senate Aboriginal affairs committee, also complained that federal negotiators lacked the flexibility to make deals.

Among Monday’s changes:

* Ottawa will now consider proposals to negotiate agreements in areas of federal jurisdiction with First Nations outside the treaty process. The federal government is also willing to participate in B.C. government-negotiated deals involving those First Nations.

* Federal negotiators, in a bid to display greater flexibility, will be prepared to negotiate incremental agreements in specific areas prior to the finalization of treaties.

“While a final treaty remains the ultimate goal, these incremental treaty agreements will be designed to deliver more immediate results for Aboriginal communities and build momentum toward concluding treaties,” the federal government said in a news release.

* Ottawa, criticized in Eyford’s report for not doing enough to consult with First Nations impacted by pipeline proposals, will negotiate more “consultation protocols in areas of high resource development.”

* The federal government will spend the autumn preparing new guidelines for both government and industry, with the goal of producing a new policy statement by the end of 2015 on their respective roles and responsibilities in consulting and accommodating First Nations.

* Ottawa will also play a greater role in helping to resolve conflicting claims involving First Nations claiming title to the same tracts of land. “This could include providing support for Aboriginal participation in alternate dispute resolution processes or for research and information-gathering,” according to the statement.

* The federal government will also try to remove a major criticism from First Nations who oppose Ottawa’s insistence that social program transfers be reduced if the band has its own revenue streams. “For example, program transfers for health, education and social development will not be reduced based on” a First Nation’s own revenue sources, said the statement.

* Ottawa will resume negotiation of fisheries provisions, which have removed out-of-bounds even though Justice Bruce Cohen submitted his findings in the autumn of 2012.

* The government is implementing, “in partnership” with the B.C. government and First Nations, a new approach to the thorny legal issue of “certainty” — that is, whether treaties fully and finally resolve the First Nation’s claims to title and rights.

Instead of asking First Nations to surrender any rights not spelled out in the agreement – a major sticking point in many Aboriginal communities — they will be asked to agree to not assert these undefined rights as part of the final settlement.

Carrier’s Liability – Kinder Morgan’s Achilles Heal

By Glen Thompson. At the last two information events, Kinder Morgan brought to Chilliwack a large team of professionals and specialized aids to cover an exhaustive range of issues. Resembling a Royal Commission, everything concerning the proposed pipeline was in the tow of a Subject Matter Expert and neatly secured in a rolling briefcase. The first audience was the full Board of the Fraser Valley Regional District (FVRD) and the second, an invited group of government regulatory officials, community leaders and representatives of major environmental organizations. Audiences with a formidable amount of assembled oversight.

The new pipeline, it seems, is as complicated as the first mission to the moon, with a robust 15,000 page draft plan, guiding a small army of civil engineers, scientists, and project leads. It took no less than nine expert presenters with technical analysts standing by, to present an hour and a half project overview to the FVRD Board. Sitting two rows deep, the project leads extolled advanced science and gleaned wisdom distilled from forensic analysis of past catastrophes. The presentation team successfully stickhandled their way through the Boards member’s queries; air quality, the depth of the pipeline in deep rooted agricultural crops, financial compensation capacity and riparian protection.

The second event was a long afternoon of Kinder Morgan being slow cooked by fully qualified, and at times pointed, questions from a highly informed group of community leaders, advocates and government agency analysts. Kinder Morgan walked away roughed up, limping a bit, but uninjured. Every concern it seemed, had a graph, a published opinion or a mitigation plan and supposedly every bit of it, was reasonable, given the daunting task of moving extremely heavy oil, over mountains, in February.

At the FVRD meeting, a single phrase, made by the pipeline’s head director, hung in the air like a high fly ball, I’ll never forget the finality in his voice, “Once the oil leaves the dock, Kinder Morgan holds no obligation or responsibility, even 10 metres out – that’s the carrier’s liability.” Nobody caught the ball.

The oil cargo that was loaded into the Exxon Valdez traveled safely through the supply pipeline from Prudhoe Bay without incident. The Alaska coast disaster had nothing to do with the pipeline, and everything to do with the carrier. The Kinder Morgan director’s sharp statement pulls the sheet off the question; Who will take Kinder Morgan’s oil out of the Port of Vancouver? West Coast oil tankers are a critical link in the supply chain between the Alberta Rigs and the far off Chinese refineries. The little known outcome from the Exxon Valdez case is worth considering when examining the full supply route.

The Exxon Valdez ran aground on Bligh Reef in 1989 dumping hundreds of thousands of barrels of oil into Prince William Sound. The ship’s Captain Joseph Hazelwood, an alcoholic, was reported to be intoxicated and had stepped away from the bridge at a critical moment. A lawsuit alleged Exxon negligently allowed a known alcoholic to be in charge of a vessel and failed to maintain a collision avoidance system that, if functioning, would have warned the crew. The system had been broken for over a year.

In 1994, International media outlets hammered out stories when a jury’s verdict announced Exxon would have to pay a massive $5.3 billion dollar fine. This was enough to pay for the cleanup, compensate 38,000 economic victims and punitively punish the corporation firmly enough to prevent it from ever happening again. The public was satisfied in the justice system and the media moved on.

IN 2002, Exxon appealed. The case was heard by the Ninth Circuit Court of Appeals and the fine was dropped to $4 billion. Exxon appealed. The fine was raised to 4.5 billion. Exxon appealed. The 2nd appeal ruling was struck down and the fine was reduced to $2.5 billion. Exxon petitioned for a rehearing but failed, the $2.5 billion fine was upheld.

After the accident, Exxon towed its ripped up vessel to California for repair. The cost of putting her back in service, $30 million dollars. In 1990 the US Congress passed a law (375 – 5) that prohibits a tanker that has spilled more than one million gallons of oil from entering Prince William Sound. In 1998 Exxon launched a legal action against the law and tried to return the ship to service on the Alaskan coast. They claimed the law unfairly targeted Exxon, and argued past incidents are not an indicator of an increased likelihood of a future accident. In 2002 Exxon lost the case and by that time the law had prevented 18 ships from entering the sound.

In 2007, Exxon filed a fourth appeal of the fine, this time in the US Supreme Court. Using past case settlements Exxon lawyers argued that a punitive judgement in a maritime case based on reckless behavior should not impose a fine greater than the amount of compensation damages. In 90 minutes Exxon’s lawyers reduced the fine by 2 billion dollars from $2.5 billion to $500 million. The 5 – 3 decision was supported by (former Monsanto attorney) Justice Clarence Thomas. Exxon paid what amounts to 10% of the original fine.

Exxon is based in New York. It is the world’s third largest company by revenue (est. $420 billion annually). It is readily subject to, and bound by, American law; but despite this, the prosecution of Exxon was largely unsuccessful. If a US Court has difficulty prosecuting a US company, how would a Canadian court fair prosecuting a Chinese company? The lesson of the Valdez is that petroleum exporting ports such as the Port of Vancouver need solid legal protection and regulations in place prior to spills. A Chinese Oil conglomerate is likely to be even more challenging to fine or regulate than Exxon. Who will ship oil to China, state-run China Shipping, Exxon’s shipping subsidiary, Liberian Oil Tankers?

The Kinder Morgan pipeline approval must include a regulatory mechanism for preventing any flavour of Liberian Oil Tankers, a financial bond formula to cover spills, and a double hull safe shipping certification, like the one in place in the Mediterranean. The pipeline should not be considered without these controls. The current pipeline approval system is as irresponsible as licencing a pub without a drunk driver law. Kinder Morgan needs to serve its oil responsibly. It is not reasonable or logical to separate a pipeline approval from tanker regulation.

The Exxon Valdez was renamed several times by Exxon and eventually sold to a Hong Kong company. She collided with another ship in 2010 and sent to ship breakers for scrap. Under her final name Oriental Nicety, she was the subject of a case in the Indian Supreme Court, beached and dismantled at Alang, India in 2012.

http://www.law.cornell.edu/supct/cert/07-219

http://en.wikipedia.org/wiki/Oil_Pollution_Act_of_1990

Trans Mountain, Kinder Morgan and Tank Farm Accident History – Canada and the USA

Trans Mountain Accident History

There have been over 72 accidents on the Trans Mountain pipeline since construction in 1952. There have been many more on on other Kinder Morgan pipelines.

(reference KM revenue versus safety stock prices)

The following is a list of the accidents solely on the Trans Mountain line since 2005 when Kinder Morgan assumed ownership.

  • July 15, 2005: About 210,000 litres of crude were released into the area surrounding the company’s Sumas Mountain storage facility in Abbotsford, leaking into Kilgard Creek.
  • July 24, 2007: Almost 250,000 litres of crude oil spilled onto streets and into Burrard Inlet at the Westridge Terminal in Burnaby when a construction crew inadvertently hit the unmarked Trans Mountain pipeline. At least 50 homes had to be evacuated and residents reported nauseous gasses. See the BC Ministry of Environment Incident Report. Police and the Burnaby Fire Department had to be mobilized at tax payers expense.
  • May 6, 2009: Almost 200,000 litres of oil leaking at the Forest Hill Tank Farm on Burnaby Mountain. Police and the Burnaby Fire Department had to be mobilized at tax payers expense.
  • January 24, 2012: A pipeline rupture at the Sumas Mountain tank farm spilled an estimated 110,000 litres of oil. Local residents reported health problems including nausea, headaches and fatigue, and schoolchildren were kept indoors for fear of airborne toxins. Again, police and the Burnaby Fire Department had to be mobilized at tax payers expense.
  • April 3, 2012: Another spill in a “containment area” at the Abbotsford Sumas Mountain facility caused odors and air quality concerns in surrounding communities.
  • June 12, 2013: A leak was discovered on the Kinder Morgan pipeline near Merritt, BC.
  • June 26, 2013: Just two weeks after the spill near Merritt, yet another leak was discovered – this time spilling up to 4,000 litres of oil at a site near the Coquihalla Summit, about 40 km east of Hope, BC.

Kinder Morgan Accident History

Tank Farm Accident History

  • May 6, 2009: Almost 200,000 litres of oil leaking at the Forest Hill Tank Farm on Burnaby Mountain. Police and the Burnaby Fire Department had to be mobilized at tax payers expense.
  • 2011 reference
  • January 24, 2012: A pipeline rupture at the Sumas Mountain tank farm spilled an estimated 110,000 litres of oil. Local residents reported health problems including nausea, headaches and fatigue, and schoolchildren were kept indoors for fear of airborne toxins. Again, police and the Burnaby Fire Department had to be mobilized at tax payers expense.
  • April 3, 2012: Another spill in a “containment area” at the Abbotsford Sumas Mountain facility caused odors and air quality concerns in surrounding communities.

US Accident History – coming early September

Fire department worried about tank farm expansion

Deputy fire chief paints grim worst-case scenario if tank farm were to catch fire.

Burnaby’s deputy fire chief is raising alarming safety concerns about Kinder Morgan’s plan to expand the Burnaby Mountain tank farm.

Dept. Fire Chief Chris Bowcock is worried the 13-tank storage facility, slated for expansion on the south side of Burnaby Mountain, would be an uncontrollable disaster in the event of a major fire or earthquake. His worst-case scenarios involve clouds of poisonous gas, explosions of molten crude and fires burning for days – all close to residential areas and Forest Grove Elementary.

“I think from the fire department’s perspective, we are coming at this as community advocates for fire and safety,” Bowcock told the NOW. “We believe our responsibility is to the citizens of Burnaby – the protection of their lives, their property – and the health of the community as a whole.”

Kinder Morgan filed its application to the National Energy Board in December. The company is proposing to twin the Trans Mountain pipeline and expand the tank storage facility, increasing capacity from 1.6 million barrels of oil to 3.6 million by adding 14 new tanks.

According to Bowcock, Kinder Morgan raised three safety concerns about the tank farm in the application: potential discharge of sulphur-based compounds, such as hydrogen sulphide, a poisonous gas; toxic smoke plumes in the event of a fire; and a “boil-over” event, when a tank is left to burn for an extensive period of time and eventually explodes, spraying molten crude the length of 10 tanks.

“So if you have a 100-foot tank, the dispersal rate of that molten crude would be 1,000 feet – that’s a great distance,” Bowcock said.

For 15 years, Bowcock worked as an emergency management consultant and conducted field training for tank-fire suppression and pre-planning in the Alberta oil sands. While there, he learned a thing or two about tank farms: Don’t put them on mountains and keep them on flat ground and away from residential areas, for instance. According to Bowcock, the tanks must be placed no closer than the diameter of the tank, so if you have a 100-foot diametre tank, the next tank should be at least 100 feet away. There should also be 360-degree access to the tanks, in case of emergency.

Bowcock is concerned about increasing density of the tanks, which he says increases the chances of a fire at one tank spreading to another.

The massive oil tanks have been on Burnaby Mountain for decades, without any major explosions or firestorms, but that doesn’t seem to reassure Bowcock.

“You have to balance the frequency of occurrence with the consequences of occurrence,” he said, adding the region is due for a major earthquake.

And if a fire were to start at the tank farm, it would very likely burn for days, according to Bowcock.

“The amount of heat firefighters are taking on, the amount of risk you’re exposing them to – if you can’t create a safe environment to fight the fire, it may not be extinguishable,” he said, adding it can take four to seven days for a tank to burn off all of its fuel.

According to Bowcock, tank farm fires can start from lightening strikes, even though there are “counter measures” on the tanks.

“Lighting hits high points, and it hits metal objects. Depending where a tank farm is located it can be more or less susceptible to lightning strikes,” Bowcock said.

Any kind of “hot work” – welding, for instance – or errors, human or otherwise, could also start a fire.

The fire department’s concerns were included in the City of Burnaby’s information request, recently filed with the National Energy Board, as a part of the pipeline hearing.

“We have a lot of questions based on the application. The application didn’t provide much specific information on how these risks and emergencies could be managed and reduced,” Bowcock said. “We have concerns about whether it’s even possible to reduce these risks, … and if it is possible, we have no info on how that’s going to be achieved.”

Bowcock said the Kinder Morgan expansion proposal presents too many uncontrollable risks that could have unacceptable consequences for the NEB to accept the proposal.

Oil and gas facilities are required to have their own firefighters onsite, as the prime responsibility for handling a potential fire falls on the operators. However, the city’s fire department may be called on to help, especially with rescues or evacuations, Bowcock explained, and Kinder Morgan’s firefighting capability is “at question,” he added.

The NOW posed Bowcock’s concerns to Ali Hounsell, spokesperson for the Trans Mountain expansion.

“First and foremost, there’s nothing more important to Trans Mountain than the safety of our neighbourhoods, the community and our employees,” she said. “Safety is our top priority, and in 60 years of operation in Burnaby, we’ve never had a fire at the terminal.”

Hounsell said the pipeline application included risk assessments that deal with worst-case scenarios, and worst-case scenario planning assumes there’s no emergency response to a fire, which in reality would not be the case.

“It is important to remember that the assessments contained in the application are preliminary, and we will use the reports to inform the design of the facility and development of our operational emergency response plan. So, we expect the final design will result in significant decreases in the mitigated risks that you see prevented in these types of reports,” she said. “We’ll develop more detailed emergency response plans for the expansion, and we’ll provide updated risk assessments as well.”

Hounsell wasn’t sure when that information will be available, but since the fire department’s concerns were raised in the first round of information requests for the pipeline hearing, Kinder Morgan will formally reply through the hearing. The deadline for the company to respond is June 13.

“We would also look forward with local emergency responders to help develop any response plans moving forward,” Hounsell added.

As for the hilly location and close proximity to homes, Hounsell said there is no proposal to move the facility but reiterated that there have been no fires in six decades.

© Burnaby Now

Link:
http://www.burnabynow.com/news/fire-department-worried-about-tank-farm-expansion-1.1075716#sthash.XvmB55Un.dpuf

3rd Annual Salish Sea Summer Gathering

The 3rd Annual Salish Sea Summer Gathering takes place at Cates Park/Whey-ah-Wichen. The line up features celebrated Canadian rockers Chilliwack, Juno winners such as Holly McNarland and Vince Vaccaro, and speakers such as the Mayors of Vancouver, Burnaby and North Vancouver. Other dignitaries attending include Grand Chief Stewart Phillip and Rex Weyler, all united against the pipeline and tanker expansion.
Sponsors
Tsleil-Waututh Nation

The Political Economy of Pipelines and the State

The following addresses the perception of the role of tarsands and fossil fuels in the Canadian economy, the economics of pipelines, and the Canadian Government as a petro-state.

Canadians dramatically overestimate the contribution of tar sands to the Canadian economy

Recent polling by Environics, commissioned by Environmental Defence, shows that the majority of Canadians believe the tar sands economic importance is significantly higher than it actually is.

According to Statistics Canada, the oil sands account for just 2 per cent of Canada’s GDP. however, 41 per cent of Canadians believe the impact of the oil sands on our economy is between 6 and 24 times higher than it actually is and 57 per cent of Canadians overestimate the value of oil sands in the national economy.

As Environmental Defence states: “We’ve been having a lot of conversations lately about the role of the tar sands in Canada’s economy. We’ve chatted with friends, neighbours, and others. And we often heard the same thing; many people are under the mistaken impression that the economy could crumble if we stop expanding the tar sands. But the truth is, according to Statistics Canada, the tar sands account for just two per cent of Canada’s GDP. That’s hardly what we’d call a major economic driver.” (http://environmentaldefence.ca/reports/canadians-dramatically-overestimate-contribution-tar-sands-canadian-economy)

However, despite the misunderstanding of the role of fossil fuel, Environmental Defence found that, “What surprised us is that despite this overestimation [of the importance of tarsands in the Canadian economy], given concerns about climate change, most Canadians still think we should be moving away from fossil fuels and towards cleaner energy. A large majority, 76 per cent, of Canadians believe that given climate concerns, we should be moving away from a dependence on fossil fuels towards cleaner energy. And a majority, 66 per cent, of Canadians agree that Canada should be working towards an economy strategy less dependent on the tar sands.” (http://environmentaldefence.ca/reports/canadians-dramatically-overestimate-contribution-tar-sands-canadian-economy)

Some of the misunderstandings of the importance of tarsands in the Canadian economy probably lies with the misinformation provided by much of the corporate “news” media and advertizing. As MLA Andrew Weaver states, according to Kinder Morgan, employment during the construction phase of the Trans Mountain Expansion Project would peak at merely 4500 temporary jobs. However, Weaver points out that once pipeline construction ends, there will only be 90 permanent pipeline operating positions in the whole of BC.

Given the reliance in Canada on foreign temporary workers and the foreign “guest worker” program, many of those 4500 temporary jobs might not even go to skilled Canadians. As the unions representing the trades in Alberta have complained, even full-time permanent jobs in the tarsands are going to “guest workers.”

It is important to recognize that the Kinder Morgan project would contribute an estimated $50 million in annual tax revenue towards B.C.’s $44 billion budget and that is far less than other sectors of the BC economy, like tourism, fishing and forestry.

As CRED’s summary of reports on the BC economy What’s fueling BC’s economy points out, oil, gas and support services make up just 3% of BC’s GDP. When secondary energy services, including renewables, are added into the equation, the total contribution to provincial GDP only rises to 11%.

According to CRED, “When GDP figures for British Columbia are broken down by industry, financial and real estate services make the largest contribution to provincial wealth – more than 23% of GDP. Retail and wholesale trade make up 10% of our GDP, construction makes up 8% and manufacturing contributes a further 7%.”

Following KMPG, CRED states that the sectors of the BC economy showing the most growth are:

• Construction
• High tech
• Finance and real estate
• Retail trade
• Professional, scientific and technical services,

Oil, natural gas, forestry and manufacturing are continuing to shrink.

Nationally, according to CRED’s summary of economic studies, “oil sands make up just 2% of Canada’s GDP and when conventional oil & gas extraction is added in, the total rises to only 6% of our wealth, a proportion that has actually fallen in recent years.”

In terms of employment in 2012, the mining, oil and gas sector combined employs just 1% of the workforce, or approximately 25,000 people for the whole BC economy!

As CRED notes, BC’s biggest employers are:
• Construction – 205,000 jobs
• Manufacturing – 164,000 jobs
• Tourism – 127,000 jobs
• Real estate & property development – 121,000 jobs

“The film sector adds an additional 36,000 jobs and the high tech sector employs 84,000 people – more than oil, mining, gas and forestry combined.” (CRED)

Across Canada, the numbers are relatively similar. The industrial sectors that employed the most people in 2011 were retail trade, health and social assistance and manufacturing, with more than 11% of Canadians working in retail trade.

Less than 1% of Canadians work in the oil sands. According to the Canadian Association of Petroleum Producers, 112,000 people are employed directly and indirectly in the oil sands, out of a total Canadian workforce of approximately 17.9 m people.

In contrast, Green jobs, including clean energy supply & storage, clean transportation, green building and energy efficiency, “was responsible for 123,000 jobs and $15 billion in GDP in 2011.” (CRED)

No matter how small a percentage tarsands contributes to GDP and employment, the tarsands industry, and particularly the US pipeline giant, Kinder Morgan, wants residents of BC to bear the cost of spills, noxious “off-gassing” and other emergencies. As Andrew Weaver states:

“Serious concerns have been raised by many experts that the Trans Mountain Expansion Project could pose significant economic and environmental risks. With more tankers transiting the coast, the risk of an oil spill increases dramatically. An oil spill could devastate local industries such as fisheries and tourism and cost billions of dollars to clean up- mostly to be paid by tax payers. On average only 5-15% of oil is ever recovered from a spill, meaning that even clean-up measures are limited in their efficacy. The Kalamazoo River oil spill that occurred in Michigan has already cost over $1 billion with economic and health impacts lasting for years. The risk of an oil spill are further complicated by the fact that the tankers would be carrying dilbit, a heavy oil that has been shown to sink under conditions similar to what we have on the B.C. coast.”

The Political Economy of Tarsands and Pipelines 101

Robyn Allan speaking at a BROKE Town Hall in Burnaby – Series links

The Government of Canada as a “Petro-state: The destruction of environmental protections, law and civil society”

Coming in mid-August – to have your say write info@burnbypipelinewatch.ca

http://www.pressprogress.ca/en/post/feds-expected-be-flooded-mining-proposals-after-gutting-law-internal-doc

Feds expected to be flooded with mining proposals after gutting law: internal doc
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Well, this is unfortunate timing for the Harper government.

Under the cover of an omnibus budget bill in 2012, the Conservatives stripped 99% of lakes, rivers and streams of protection under the Navigable Waters Protection Act.

The gutting of the act, originally meant to strike a balance between the rights of navigation and environmental protection, just came into force in April. The new law significantly reduces the scope over Canada’s waters and facilitates development — including mining projects.

Fast-forward a few months to today, and British Columbia is living through an environmental disaster after a breach of a tailings pond at a copper and gold mine in the Cariboo region. The breach on Monday resulted in 10 billion litres of waste water flooding into nearby lakes, creeks and salmon rivers. The contaminated sludge could fill 2,000 Olympic-sized swimming pools, and a drinking water ban remains in effect along with a local state of emergency.

According to an internal briefing to an associate deputy minister at Transport Canada written just before the Navigation Protection Act (NPA) came into effect — and newly released to PressProgress under access to information law — the federal government fully expected to be flooded with applications for new mine proposals. It also anticipated a much more speedy process for approvals.

“TC forecasts that up to 30 Order in Council exemptions (a process requiring up to 11 months following a positive environmental assessment decision) could be required under the current approach, if all the identified mining proposals proceed. The new approach is anticipated to reduce the number of Order in Council exemptions, thereby allowing for more efficient use of existing resources, within both the industry and the department,” the briefing note says.

(Incidentally, internal government records previously released to Greenpeace Canada show that the idea to overhaul the act, which now protects fewer than 2% of Canada’s waterways, came, in part, from industry.)

The government also won’t be surprised if it’s hauled before the courts, the briefing note states. “The new NPA does not define navigability. A determination of navigability by TC for a given project remains an opinion that may ultimately be challenged by the Courts as a matter of statutory interpretation.”

In the meantime, there’s a massive cleanup job to be done in B.C., where environmental advocates say the provincial government’s decision to cut inspection staff and allow industry to self-regulate may be to blame for the Imperial Metals’ Mount Polley tailings pond disaster.

And here’s the Transport Canada briefing note:

The gutting of the Navigable Waters Protection Act

Kinder Morgan’s Trans Mountain Expansion Project

Kinder Morgan has applied to the National Energy Board of Canada through a subsidiary, Trans Mountain, to build a new oil pipeline from Edmonton to Burnaby to carry diluted tar sands, or dilbit for short. If approved, the new pipeline will run more or less parallel to the existing Trans Mountain pipeline through residential neighbourhoods, near schools and day cares and beside aquifers and protected conservation lands.

The new pipeline will increase the amount of oil transported from the Alberta tar sands to the B.C. coast from 300,000 barrels of oil per day to 890,000 or more barrels of oil per day. Kinder Morgan would be able to transport nearly twice as much diluted bitumen through the Trans Mountain pipeline system as the proposed Northern Gateway pipeline.

Tripling the oil transported by the Trans Mountain pipeline will increase tanker traffic through Burrard Inlet and Second Narrows and along the BC coast from 5 tankers per month to 34 and expand the Tank Farm on the south slope of Burrard Mountain from approximately 1.4 million barrels of oil to 5.4 million barrels. The raw dilbit will be shipped to China through the Westridge Terminal which lies near the North Ridge of Burnaby Mountain.

Kinder Morgan plans to build the new pipeline to run more or less parallel to the existing Trans Mountain pipeline. The original Trans Mountain pipeline was constructed in 1953 when Burnaby was sparsely populated. Since 1953 residential neighbourhoods, schools and day cares were built close to the Trans Mountain pipeline, Tank Farm and Westridge Terminal.a

Kinder Morgan Canada purchased Trans Mountain in 2005 by Richard Kinder and William Morgan. Richard Kinder and William Morgan are former Enron employees who left Enron shortly before its collapse and the prosecution of Kenneth Lay.

The NEB Process

To expand the Trans Mountain pipeline system, Kinder Morgan must have the approval of the federal National Energy Board (NEB). The NEB must decide if the pipeline application is in the public interest.

Kinder Morgan submitted its application to expand the Trans Mountain system to the NEB on December 16, 2013 and the NEB announced a fifteen-month review process beginning on April 2, 2014, originally announced to conclude on July 2, 2015, at which time the NEB will submit a recommendation to the Federal Government on whether or not the project should be approved. The Federal Government would then have six months to consider the NEB’s recommendation and either approve or reject the project. If approved, the pipeline could begin construction with a completion date as early as late 2017.

However, due to Kinder Morgan announcing a new preferred route through the South slope of Burnaby Mountain near the North Ridge and exiting at the Westridge Terminal, the National Energy Board announced on July 15, 2014 that the deadline for assessment of Kinder Morgan’s Trans Mountain pipeline application has been postponed until January 25, 2016 – well after the next federal election. The decision to delay approval or rejection was supposedly based on the need for further studies of the impact and feasibility of the new route through near the North Ridge of Burnaby Mountain. The most important deadlines are listed here and the list of deadlines can be found on the NEB website.

The new route requires Trans Mountain to contact affected residents. Prior to the notification of the new route 400 groups and people were selected from the 2118 individuals and organizations that applied to participate in the hearing process. A further 1250 people and groups were granted commenter status and 468 were rejected outright. A list of those selected as Intervenors and commentators can be found here. The Burnaby Residents Opposing Kinder Morgan Expansion was granted Intervenor status and is committed to providing science based information on various aspects of the Trans Mountain Application to the NEB and full disclosure on the the NEB process to the public. You can share you ideas, comments and concerns about the Trans Mountain application and the NEB Hearing at Real NEB Hearing.

The distinction between commentators and intervenors is important. Commentators and Intervenors have vastly different rights and access; Commenters are allowed to submit a single letter for consideration by the NEB while Intervenors have the right to question Kinder Morgan on their application, submit new evidence and offer a final oral argument on whether or not the NEB should approve the project. Intervenors therefore play an important and active role in the NEB Hearing process. As a result, many groups, businesses and individuals who have been excluded from the consultation process are challenging the NEB (source court).

However, Intervenors have also argued that the NEB process is severally flawed because key studies have not been filed, Kinder Morgan answers to the first round of Information Requests are inadequate, and that expert evidence is not subject to cross-examination (source and Notices of Motion).

As a result of these difficulties, BROKE has helped develop a website tool to provide an opportunity for individuals, groups and businesses who have been excluded by the NEB to make their concerns and comments known and to be placed on the public record. You can find the website at Real NEB Hearings and you can add your comment. You can use the comment tool to record your concerns and questions, and we will forward them on to key local, provincial and federal decision makers so they know where you stand.

Intervenors and commentators can also record their questions and comments. Intervenors have long argued that the NEB process is severally flawed because key studies have not been filed, Kinder Morgan answers to the first round of Information Requests are inadequate, and that expert evidence is not subject to cross-examination.


First Nations and the NEB

The Tsleil-Waututh Nation and the Squamish Nation oppose Kinder Morgan’s Trans Mountain application and have signed the Save the Fraser Declaration opposing the export of tar sands oil through their traditional territories. The Tsleil-Waututh Nation and Squamish Nation’s opposition is supported by the First Nations Summit and the Union of BC Indian Chiefs.

Tsleil-Waututh Nation – Sacred Trust Initiative

Tsleil-Waututh Nation – Sacred Trust Initiative: The Sacred Trust is an initiative of the Tsleil-Waututh Nation. The Sacred Trust is mandated to oppose and stop the Kinder Morgan Trans Mountain pipeline project. This site is officially sanctioned by Tsleil-Waututh Chief and Council.

The Tsleil-Waututh Nation’s (TWN) is appealing the hearing order made by the NEB on April 2, 2014. This link is to the challenge to the National Energy Board’s hearing of the Kinder Morgan Trans Mountain Pipeline and Tanker application. Read more: B.C. First Nation launches legal challenge over Kinder Morgan pipeline

May 2nd Tsleil-Waututh Nation Press Conference on Kinder Morgan Pipeline and Tankers Project

While we are not lawyers and this is not legal advise, the four main arguments of the TWN may be summarized as follows:

1. the federal government had a duty to consult with TWN before setting up this process due to the significant impact the pipeline could have and the significant claim TWN has to the affected land;
2. the NEB did not offer to cooperate with the TWN as it is constitutionally obligated to do;
3. the NEB’s process is not procedurally fair: there was inadequate time to review the application, there is no opportunity to cross examine witnesses, the review has limited scope, there is inadequate funding for affected parties to meaningfully participate in the NEB hearing, etc.
4. the NEB has erred in defining the scope of the project. For example, it is an error to consider the shipping incidental to the pipeline project.

TWN has passed the initial stage at the Federal Court of Appeal (FCA) and has been granted leave to bring the application. No dates have been set for the hearing. The outcome of the TWN application to the FCA will have an important impact. If the application is successful.

A finding that the hearing order was unlawful or unconstitutional would invalidate the hearing order and require the NEB to begin the process again. This could invalidate any decisions the NEB has made along the way, including the final recommendation to approve the pipeline if such had been made.

However, the TWN application to the FCA does not automatically stop the NEB process. However, any decision of the FCA on the substantive aspects of TWN’s application will be binding on the NEB.

In the meantime, the federal government has announced major changes to the treaty process in order to entice First Nations to give up control over decisions concerning resource extraction as well as other important rights. The Vancouver reported on the changes and timetable for implementation on July 28, 2014. The Vancouver Sun was very careful to repeat the government explanation on timing without comment as not at all related to a “recent landmark Supreme Court of Canada decision that gave a B.C. First Nation title to a large tract of land.” (http://www.vancouversun.com/news/Policy+changes+aimed+reviving+treaty+process+gaining+support+natural+resource+projects/10069293/story.html#ixzz38pwsUAS4)

The entire Vancouver Sun report is copied below:

Policy changes aimed at reviving B.C. treaty process, gaining support for natural-resource projects: Aboriginal Affairs

OTTAWA — The Harper government announced Monday sweeping policy changes aimed at reviving the B.C. treaty process and convincing more First Nations they should support major natural-resource initiatives in B.C.

Aboriginal Affairs Minister Bernard Valcourt’s new approach is in response to numerous criticisms over several years that the government has been inflexible in its approach to treaties, and that it has failed to adequately consult First Nations on controversial oilsands pipeline proposals.

Valcourt appointed Vancouver lawyer Douglas Eyford, the author of a critical government-commissioned report published last December, to lead a process to “renew and reform” a comprehensive treaty process that has produced just four deals in more than two decades of talks.

Ottawa also announced a more flexible approach to treaties, saying it is open to concluding interim agreements on specific issues rather than forcing First Nations to ratify final deals before they get any benefits.

And the government is establishing clearer standards on how government and industry meet their Supreme Court of Canada-mandated duty to consult First Nations on project proposals.

The federal government said the new approach is the result of years of consultations going back to 2009, and is not related to the recent landmark Supreme Court of Canada decision that gave a B.C. First Nation title to a large tract of land.

However, Monday’s announcement reflects the government’s preference for resolving claims at the negotiating table rather than risking similar court judgments.

“We are taking action to help address some of the key impediments to treaty negotiations in British Columbia, and engaging on broader reforms to advance reconciliation across the country,” Valcourt said in a statement.

“Our goal is to work in partnership so we can seize opportunities to promote prosperous communities and economic development for the benefit of all Canadians.”

Eyford will play a key role in the government’s initiative, being named Valcourt’s “special representative” to engage with First Nations and stakeholders involved in treaty negotiations to ensure Constitutionally-protected rights are recognized and affirmed.

Eyford “will host regional meetings with negotiation partners in key areas to complement engagement by federal negotiators at individual negotiating tables,” the release stated.

“This engagement will take place over the summer and into the fall of 2014, with completion of the process by the end of the year.”

Valcourt’s announcement was made public after a meeting with John Rustad, B.C. minister of Aboriginal relations and reconciliation, Sophie Pierre, chief commissioner of the British Columbia Treaty Commission, Grand Chief

Edward John of the First Nations Summit, and Dave Porter of the First Nations Energy and Mining Council.

The treaty process was launched in 1992, engaging 61 First Nations representing 104 of the 203 B.C. bands registered under the federal Indian Act.

But productivity has been painfully slow. Just four treaties involving eight First Nations have been ratified, while another four have agreements-in-principle. A further 44 are negotiating AIPs, according to the BCTC.

Among the frustrations expressed by First Nations leaders and other stakeholders has been Ottawa’s refusal, after a commission of inquiry into missing Fraser River salmon was struck in 2009, to negotiate fishery components to treaties.

Critics, including a report by the Conservative-dominated Senate Aboriginal affairs committee, also complained that federal negotiators lacked the flexibility to make deals.

Among Monday’s changes:

* Ottawa will now consider proposals to negotiate agreements in areas of federal jurisdiction with First Nations outside the treaty process. The federal government is also willing to participate in B.C. government-negotiated deals involving those First Nations.

* Federal negotiators, in a bid to display greater flexibility, will be prepared to negotiate incremental agreements in specific areas prior to the finalization of treaties.

“While a final treaty remains the ultimate goal, these incremental treaty agreements will be designed to deliver more immediate results for Aboriginal communities and build momentum toward concluding treaties,” the federal government said in a news release.

* Ottawa, criticized in Eyford’s report for not doing enough to consult with First Nations impacted by pipeline proposals, will negotiate more “consultation protocols in areas of high resource development.”

* The federal government will spend the autumn preparing new guidelines for both government and industry, with the goal of producing a new policy statement by the end of 2015 on their respective roles and responsibilities in consulting and accommodating First Nations.

* Ottawa will also play a greater role in helping to resolve conflicting claims involving First Nations claiming title to the same tracts of land. “This could include providing support for Aboriginal participation in alternate dispute resolution processes or for research and information-gathering,” according to the statement.

* The federal government will also try to remove a major criticism from First Nations who oppose Ottawa’s insistence that social program transfers be reduced if the band has its own revenue streams. “For example, program transfers for health, education and social development will not be reduced based on” a First Nation’s own revenue sources, said the statement.

* Ottawa will resume negotiation of fisheries provisions, which have removed out-of-bounds even though Justice Bruce Cohen submitted his findings in the autumn of 2012.

* The government is implementing, “in partnership” with the B.C. government and First Nations, a new approach to the thorny legal issue of “certainty” — that is, whether treaties fully and finally resolve the First Nation’s claims to title and rights.

Instead of asking First Nations to surrender any rights not spelled out in the agreement – a major sticking point in many Aboriginal communities — they will be asked to agree to not assert these undefined rights as part of the final settlement. (Vancouver Sun July 28, 2014: http://www.vancouversun.com/news/Policy+changes+aimed+reviving+treaty+process+gaining+support+natural+resource+projects/10069293/story.html#ixzz38pwsUAS4)