NEB: Trans Mountain Hearing

Speak Up

The National Energy Board (NEB) is now considering a proposal by the Texas based Kinder Morgan, Inc to export tar sands crude by pipeline through BC and by tanker through our coastal waters. But the NEB has severely restricted who can formally comment on the proposal and this fails to meet the basic standards of public consultation. As a result, many groups, businesses and individuals who have been excluded from the consultation process are challenging the NEB.

BROKE has helped to make a website available 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 this comment tool to record your concerns and questions so they become part of the public record.

Many Intervenors also argue that the NEB process is severally flawed because key environmental, geological, health and economic 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. Intervenors and commentators can also add comments at Real NEB Hearings.


Delayed Trans Mountain Hearing

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 – after the next federal election.

The delay resulted from Kinder Morgan’s decision to change the preferred route for the new pipeline. The new route will tunnel through Burnaby Mountain from the Forest Hill Tank Farm to the Westridge Terminal. As a result, the NEB requires further studies of the impact and feasibility of the new route through the unstable Burnaby mountain.

A list of revised hearing deadlines can be found on the NEB website. Some of the revised hearing dates are as follows:

  • Intervenors submit Round 2 information requests to Trans Mountain (excluding questions about tunnel routes): Sept 18, 2014
  • Trans Mountain responds to Round 2 intervenor information requests: Oct. 17, 2014
  • Trans Mountain files studies and information on the new tunnel route: Dec 1, 2014
  • Intervenors submit information requests to Trans Mountain related to the tunnel route: Jan 13, 2015
  • New deadline for commenters to file letter of comment: March 16, 2015
  • Deadline for intervenors to file written evidence: March 16, 2015
  • Deadline for intervenors to file written argument: July 29, 2015
  • Oral hearings (Without all important cross-examination of witnesses. As explained below, this is being challenged): July 2015
  • NEB releases its final report and recommendations: 25 January, 2016

For more information about Intervenors, commentators, the Trans Mountain application and the NEB go to the sub-menus of the NEB Hearing menu above.

More oil tankers may fuel Fraser Valley smog

The huge increase in oil tankers that would come with a twinned Trans Mountain oil pipeline could significantly worsen air pollution, particularly in the Fraser Valley.

That’s one key concern raised by both Metro Vancouver and the Fraser Valley regional districts in their information requests to pipeline proponent Kinder Morgan.

Metro cites an expected increase of 1,518 tonnes per year of volatile organic compounds (VOCs) from idling tankers and terminal operations, a number that dwarfs the current annual VOC emissions of 116 tonnes from Burnaby’s Chevron oil refinery.

“The projected increase in VOC emissions in the Lower Fraser Valley due to the project at Westridge Marine Terminal is equivalent to adding 13 new refineries the size of the Chevron Burnaby refinery to the airshed,” said Metro’s information request filed with the National Energy Board.

An increase in VOC emissions will likely trigger worse ground-level ozone, according to Metro.

The FVRD noted the expanded Westridge Terminal alone would add the equivalent of an extra one per cent to the total VOC emissions in the airshed, and questioned how that wouldn’t further increase the frequency of ozone level exceedances that already sometimes happen in Abbotsford, Chilliwack and Hope.

Kinder Morgan responded that VOC emissions should be much lower than previously estimated because technology to scrub vapours from docked ships has turned out to be more efficient than first estimated.

The proposed second pipeline to carry oil sands bitumen to the Pacific would increase Trans Mountain’s capacity from 300,000 to 890,000 barrels per day and draw an estimated 400 tankers per year to the Burnaby terminal – eight times the number that loaded there in each of the past two years.

Metro has previously flagged emissions from ships as one of the main sources of local air pollution.

The two regional districts wanted Kinder Morgan to revise the air quality model it used in reaching its air pollution conclusions, but the company said it won’t do that because both Metro and the provincial environment ministry signed off on the model that was used.

The regional district also questioned Kinder Morgan’s rationale for considering 20-kilometre visibility acceptable for air quality targets.

“Impacts on visual air quality are known to occur even when the visual range is much greater than this,” Metro stated.

Metro has also raised concern that the route would run through the decommissioned Coquitlam landfill, potentially interfering with leachate or landfill gas collection.

Another Metro-raised concern is that dredging a deeper channel in the Second Narrows to accommodate larger tankers could jeopardize buried Metro water lines that deliver drinking water to most of the region.

Trans Mountain officials responded that channel dredging isn’t required for the new pipeline.

The pipeline corridor would also crisscross various Metro sewer lines.

Another significant threat flagged by Metro is the risk of full-bore spill into the Fraser River where the pipeline crosses near the Port Mann Bridge.

It says the assumed uncontrolled release of 1,250 cubic metres of bitumen from a rupture there could be much more severe than a spill at the Westridge Marine Terminal and pose human health risks to residents, in addition to fouling farmland, ground water and food fisheries.

Metro also lodged concerns about the potential burning of spilled oil as a clean-up tactic, which Kinder Morgan said would not be used in urban areas.

The company also pledged not to burn slash in the region during pipeline construction in response to another FVRD query.

Read the full requests from Metro Vancouver and the FVRD, along with Kinder Morgan’s responses.

Related story: Province demands better answers from pipeline firm

Karen Campbell: A tale of two pipelines in B.C.

It seems like every time we turn on the radio or open a newspaper somebody is talking about pipeline proposals that would transport bitumen from Alberta’s oilsands to tide water. And while there is no shortage of ecosystem, climate, and health risks associated with these proposals, the review processes themselves are coming to symbolize a blatant disregard for open, transparent, and informed decision-making.

The result? A lose-lose-lose situation for the National Energy Board, Kinder Morgan, and Canadians.

Consider Kinder Morgan’s proposed Trans Mountain expansion. Three months into the review of the project, it is becoming clear that an inadequate regulatory process may well lead to flawed recommendations. In the case of the Enbridge Northern Gateway Joint Review Panel process, groups and individuals granted the right to participate had 112 days to review the company’s application and submit written questions. Further, in Enbridge, there were public hearings in communities all along the pipeline route.

In the Kinder Morgan review, intervenors had just 40 days (30 days, plus a 10-day extension) to review Kinder Morgan’s 15,000-page application and file information requests. Even Kinder Morgan has struggled with the timelines. The company asked for a 23-day extension so it could respond to the more than 10,000 questions it received from intervenors during the first round of questions and answers in the review process. The NEB gave the company just 14 days, making it abundantly clear that Canadians should be worried about whether this review can meaningfully evaluate the Kinder Morgan proposal given the unrealistic timelines and the massive volumes of information that intervenors are expected to analyze.

To accommodate the new 15-month time limit imposed on pipeline reviews—a centerpiece of the federal government’s re-write of Canadian environmental laws in 2012—the NEB has elected to completely forego cross-examination and community hearings in the Kinder Morgan review. This means intervenors, including municipal governments, affected citizens, First Nations, and environmental and community groups, can’t directly challenge Kinder Morgan’s experts.

Instead, the NEB is relying on two rounds of written questions and answers as a means to test evidence. This “paper hearing” process has already proven to be a poor substitute for oral cross-examination. Kinder Morgan has responded to the first round of information requests, which includes over 10,000 questions from over 100 intervenors with concerns about the project and, so far, the written responses are vague, inadequate, and in some cases, non-existent. For example, Kinder Morgan has refused to answer questions asking for specific makes and models of its oil spill response equipment. In response to another question, Kinder Morgan refused to say whether the oil shipped by the pipeline would be exported by Chinese state-controlled entities to North Korea. Both questions are important, and warrant a reply, yet we will not be able to cross-examine on these issues which would enable us to gather partial answers.

By comparison, Ecojustice lawyers were among the many who cross-examined Enbridge during the Northern Gateway hearings, probing serious gaps in the company’s spill response plan and questioning its weak safety record. Weeks of cross-examination likely contributed to the development of the 209 conditions that Northern Gateway is required to meet.

The ironic result of the new time limits is that reviews of less contentious projects are more likely to include cross-examination. For example, the hearing order on the NEB’s website for NOVA Gas Transmission Ltd.’s North Montney Project indicates that the review will include cross-examination. That review process involves 38 intervenors, all but one of whom represents industry, government, or First Nations. The reason that cross-examination can take place is precisely because there is no broad cross-section of interest in this much smaller project so a full review can be completed within the shortened, inflexible timeline.

All of this doesn’t even touch on the fact that Kinder Morgan’s application is still missing critical information such as feasibility reports for drilling at several water crossings and detailed seismic assessment studies for the proposed pipeline corridor, the latter of which the company has said will not be completed until March 2015 when final arguments will have already finished.

On top of all of these concerns about timelines, the lack of cross-examination and community hearings, the environmental and climate impacts of extracting the bitumen from the tar sands and then burning the bitumen after it is exported are explicitly excluded from the review process.

The Kinder Morgan expansion would twin an existing pipeline, nearly tripling the project’s capacity from 300,000 barrels per day to 890,000—for those keeping score at home, that’s greater than the proposed capacity of Enbridge’s Northern Gateway—and see a seven-fold increase in tanker traffic through the Burrard Inlet and Strait of Georgia. With a project of this scope, in a province where pipeline opposition is higher than it’s ever been, bad process and bad science just aren’t going to cut it.

The fracas over the Enbridge project may be a harbinger of what’s to come on Kinder Morgan. While the Northern Gateway process seems robust in comparison with the Kinder Morgan review, it still had flaws, with five lawsuits filed to date, and more expected soon.

These legal challenges, coupled with unprecedented opposition from First Nations, and now buttressed by the historic Tsilhqot’in ruling from the Supreme Court of Canada last week, cast great doubt over whether that pipeline will ever be built.

The great irony is that although the changes to environmental laws the federal government forced through in 2012 were done in the name of “efficiency”, they may well have the opposite effect.

The weak process unfolding around Kinder Morgan may cripple the National Energy Board’s ability regulate in the public interest, and undermine its credibility with a Canadian public increasingly reluctant to give these major pipeline projects any social licence.

In short? No one wins.

Karen Campbell is a staff lawyer at Ecojustice.

Tsilhqot’in Nation v. British Columbia: Implications for the Enbridge Tankers and Pipelines Project

On June 26, 2014 the Supreme Court of Canada (SCC) decision in Tsilhqot’in Nation v. British Columbia marked a watershed moment in the long journey of First Nations peoples to achieve recognition of their inherent title and authority over their ancestral territories. With the first court declaration of Aboriginal title in Canadian history, the SCC clarified the Canadian legal tests about Aboriginal title, and acknowledged the title and authority of the Tsilhqot’in people to use, manage and economically benefit from a 1,750 square kilometre portion of their territories southwest of Williams Lake, BC.

We acknowledge with gratitude the leadership, Elders and community members of the Tsilhqot’in Nation for their courage and strength in this long fight, and the hard work of the many First Nations and organisations who brought their voices to the court as interveners, as well as the legal teams of all involved.

Almost as soon as the decision was out, our office began to get questions about the implications of the Tsilhqot’in decision for controversial tar sands infrastructure proposals like the Enbridge Northern Gateway tankers and pipelines project.

Here are some of the key reasons why yesterday’s SCC decision increases legal risk for the Enbridge project:

1. Could Enbridge be cancelled?

As we have written before, should the Enbridge project ever go ahead, it is it is almost inevitable that over the course of the construction and operation of the project one or more of the many opposed First Nations on the tanker or pipeline routes will achieve court recognition of their Aboriginal title. In the 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. (at paragraph 92, emphasis added)

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.”

2. Aboriginal title cases could be imminent

As a result of the Tsilhqot’in decision, the day when one or more oil tanker and pipeline impacted nations proves title in court may be much closer than anyone anticipated.In its decision the SCC roundly rejected the legal test advanced by Canada and the provinces that would have limited Aboriginal title to small intensively used tracts of land (like village sites), and affirmed that Aboriginal title also extends to areas used for purposes like hunting, fishing, trapping and spiritual/cultural practices. The court also confirmed that both the Canadian and Aboriginal perspectives were essential to understanding and proving title, including First Nations laws, practices, customs and traditions related to Indigenous land tenure and use. In the result the legal barriers to proving title in the Canadian courts have been lowered substantially as compared to the state of the law following the earlier BC Court of Appeal decision.

We note that in the context of the Enbridge project, many impacted nations have already brought forward extensive evidence of their Aboriginal title and/or rights to the Joint Review Panel, directly to the Crown or in previous court cases. This evidence, including testimony of Indigenous knowledge holders and Elders and expert reports from anthropologists and others is exactly the type relied upon by the trial judge in Tsilhqot’in and ultimately by the SCC in making its declaration of title. The implications of the Tsilhqot’in decision will no doubt be front and centre in these nation’s minds as many prepare for court challenges.

3. New emphasis on consent

Tsilhqot’in Chiefs drum together honouring their peoples after hearing case decision.
A new emphasis on seeking and obtaining the consent of First Nations to proposed development in their territories is front and centre in the SCC decision. After confirming that Aboriginal title includes “the right to proactively use and manage the land” the Chief Justice goes on, as follows:

“I add this. 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 (at paragraph 97, emphasis added).

Over a hundred First Nations have banned the Enbridge project and other tar sands infrastructure from their territories and watersheds as a matter of their own Indigenous laws through instruments like the Save the Fraser Declaration and the Coastal First Nations Declaration. The consent referenced by Canada’s highest court has clearly been denied by these First Nations, and impacted nations have made it clear that they will enforce their decision using all lawful means.

The Tsilhqot’incase also set strict limits on the circumstances in which the federal or provincial governments can proceed if First Nations have not consented.

“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.” (at paragraph 76).

4. An inherent conservation limit

Confirming our shared responsibility to future generations is another important theme in the Tsilhqot’in decision with relevance to the Enbridge file. One of the unique elements of Aboriginal title is that it is a “collective title held not only for the present generation but for all succeeding generations”; this means that Aboriginal title lands can’t be “developed or misused is a way that would substantially deprive future generations of the benefit of the land” (Tsilhqot’in at para 74). This inherent conservation limit was articulated by the court in the 1997 Delgamuukw case as a restriction on the First Nations holding Aboriginal title.

In Tsilhqot’in, however, the SCC goes an important further step, and confirms that this inherent conservation limit also restricts the Crown, and by extension third parties who seek Crown licences, approval or permits for development. In the decision, the Chief Justice emphasizes that: “This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land” (at para 86).

In oral testimony, in written submissions, correspondence and public statements, First Nations representatives have spoken out eloquently again and again about the threat to their way of life, and indeed their very existence should the Enbridge tankers and pipelines project proceed. With the Tsilhqot’in decision the responsibility to safeguard future generations from such harm has become a Canadian legal obligation when lands and waters subject to Aboriginal Title are at stake, and Enbridge and the Crown would do well to take notice.

5. Consultation must occur before resource development decisions are made

The court in Tsilhqot’in also offered an important reminder that consultation, including with nations that have not yet achieved court recognition of their title, must occur before resource development decisions are made.

In a statement issued the day the federal Cabinet approved the Enbridge tankers and pipelines project, the Honourable Greg Rickford, Canada’s Minister of Natural Resources, acknowledged that there is “clearly… more work to do” with respect to engagement of First Nations and local communities on the project. In light of the Tsilhqot’in decision this is a significant legal vulnerability for the federal government and Enbridge. More particularly, in reviewing the obligations of the Crown to consult and accommodate First Nations prior to a court confirmation of title, the Chief Justice emphasized that: “The duty to consult must be discharged prior to carrying out the action that could adversely affect the right” (emphasis added).

In the case of the Enbridge project, the key action adversely affecting First Nations rights occurred on June 17th when the federal Cabinet issued an order approving the project. The order directed the National Energy Board to issue Certificates of Public Convenience and Necessity under the National Energy Board Act (“NEBA”) for the project, subject to a number of conditions. In doing so Cabinet relied on a concurrently released decision statement under the Canadian Environmental Assessment Act, 2012 to the effect that any significant environmental effects anticipated from the project could be “justified in the circumstances.”

This NEBA certificate is the primary regulatory approval required for the project to proceed; without it a pipeline may not be constructed or operated. The certificate stage is where the critical strategic level decision is made as to whether the project should proceed at all. All subsequent permits and approvals about how the project should proceed (e.g., detailed route hearings, fisheries authorizations) are effectively ancillary or subordinate to this overall strategic decision. Thus, the Cabinet order to issue the certificate is the key action from which all serious adverse impacts on Aboriginal title and rights associated with the Enbridge project would flow.

With clarification from the Supreme Court of Canada that consultation must occur before the Crown takes action that could adversely impact Aboriginal title and rights, the legal vulnerability of the federal government and Enbridge on this point is apparent.

And what of the Minister’s assurances in his June 17th statement that there will be Aboriginal consultations on future federal and provincial authorizations and permits? The Supreme Court of Canada dealt with this matter in its earlier decision in Haida Nation v. British Columbia in which the Chief Justice, writing for the court, concluded that consultation must occur at higher, strategic levels of decision-making, noting that consultation at the level of operational level permitting may have “little effect” if big picture decisions about development have already been made (at para 76).

Conclusion

All told, the Tsilhqot’in decision will have profound implications for all aspects of land and water use in British Columbia, but given the timing of the decision, perhaps none more so than the proposed Enbridge Northern Gateway tankers and pipelines project.

By Jessica Clogg, Executive Director and Senior Counsel

Photos courtesy of the Tsilhqot’in National Government.