FOCUS

KINDER MORGAN’S submission that dilbit would be expected to float
following a spill was accepted without being subject to cross examination,
but, under National Energy Board rules, critical new evidence from the
US National Academy of Sciences that dilbit sinks was disallowed.
sion inadequate since all its modelling of environmental
impacts and oil spills is predicated
on earlier assumptions that spilled dilbit
performed like any other crude oil and didn’t
sink. Kinder Morgan stated in their submission
to the NEB that “Dilbits…[and other
Group 3 hydrocarbons] have been transported
throughout the world and the general
behaviour of these oils are quite comparable
with respect to fate and weathering, and spill
countermeasures.” (italics added) Kinder
Morgan also stated that dilbit proved “no
different than what might be expected of
other conventional heavy crudes when exposed
to similar conditions.”
The NAS report, commissioned by the US
Congress to consider that country’s own spill
response preparedness, first became available
in its pre-publication form online in early
December. Raincoast and Living Oceans
immediately filed a motion to have its evidence
included because of its significance. The NEB,
however, accepted Kinder Morgan’s argument
that it was “procedurally unfair to permit
the filing of new evidence, prepared by third
parties, on the eve of argument. Kinder
Morgan said fairness requires that participants
have a sufficient opportunity to test
new evidence by asking questions to those
who prepared it, and there is not enough
time to do so in this case.”
Raincoast and Living Oceans argued back
that most evidence is from third party research,
and that doesn’t provide a basis for dismissal—
just an argument for bringing back oral cross
examination which Stephen Harper got rid
of in his last fiddle with the NEB. Kinder
Morgan also argued that it was a pre-publication
report and “it was difficult to ascertain
which part of the Report contained errors.”
According to Macduffee, the NEB could
have gone back to the federal government
to ask for an extension to provide time for
the company to review this critical evidence,
but didn’t.
Now, with the federal government giving
itself more time to make a decision, and
promising its decision will be based on science
(as well as traditional indigenous knowledge
and other relevant evidence), the NAS’ findings
do stand a chance, ultimately, of being
weighed in the final decision on the project.
AT A PRESS CONFERENCE ON JANUARY
27, Natural Resources Minister Jim Carr and
Environment Minister Catherine McKenna
introduced five new principles that will guide
its decision-making on major natural resource
projects while the government undertakes a
broader review of environmental assessment
processes (which is expected to take two years).
For the Trans Mountain Expansion project,
the government promised to “undertake deeper
consultations with Indigenous peoples and
provide funding to support participation in
these consultations; assess the upstream greenhouse
gas emissions associated with the project;
and appoint a Ministerial Representative to
engage communities, including Indigenous
communities potentially affected by the project,
to seek their views and report back to the
Minister of Natural Resources.”
While the NEB deadline for its recommendations
on Trans Mountain remains May 2016,
the government has given itself until December
2016 (it had been set for August 2016) to
consider the NEB’s recommendation and carry
out the extra consultations and assessments
before making a decision on the pipeline.
Elizabeth May spoke at a press conference
after the announcement and expressed her
approval, given the situation. She said the
Conservatives, through Bill C-38, had
“wrecked” the environmental assessment
process, allowing the Energy Board to leave
climate change out of their review. “Energy
regulators should never be asked to do environmental
reviews,” May said. Explaining
that Canada would be mired in litigation if
the government interfered at this stage in the
NEB process, she felt these new measures
offered a “reasonable approach” and “provide
more confidence” until a complete overhaul
could be done.
Andrew Weaver said he was thrilled with
the federal government’s announcement: “As
a climate scientist, I see including upstream
emissions on energy projects as a major step
forward for Canada.” He is still opposed to
the Trans Mountain pipeline going ahead:
“This announcement does nothing to alleviate
my concerns on spill response and spill preparedness.
For British Columbians the central issue
is about the potential for a catastrophic accident
and not as much about the climate impacts
of the project. On these grounds the project
should still be rejected.”
Not everyone was happy with the fed’s
interim measures. Besides condemnation from
Conservatives, regional First Nations chiefs
from Quebec, Manitoba and BC issued a
strong joint statement slamming “artificial
timelines, the sidelining of critics, a lack of
oral cross-examination of the companies’
evidence, and the exclusion of key elements
of evidence such as the behaviour of sinking
dilbit,” as well as the NEB itself—“a politicized
and industry-captured ‘rubber stamper’
that pays only lip service to the respect for
the positions and rights of First Nations.”
UBCIC President Grand Chief Stewart Phillip
said, “What needs to be demonstrated is
the federal government’s willingness to
take NO for an answer from First Nations
like Tsleil-Waututh Nation who are exercising
their sovereign decision-making power.”
The chiefs and others also complained that
the new review guidelines omit reference to
the downstream greenhouse gas emissions of
tarsands bitumen, which comprise most of the
total emissions (climate economist Mark
Jaccard’s analysis estimates 90 percent).
In that same last week of January, the NEB
itself was reprimanded by the federal
Commissioner of the Environment and
Sustainable Development Julie Gelfand who
came out with the results of an audit of the
NEB. In her statement, she said, “Our audit
concluded that the Board did not adequately
track companies’ implementation of pipeline
approval conditions, and that it was not consistently
following up on company deficiencies.
We found that the Board’s tracking systems
were outdated and inefficient.” In both types
of cases that were audited, about half were
lacking in proper oversight, which means the
NEB was not meeting its regulatory mandate.
The NEB has agreed with the auditor’s conclusions
and stated it will, among other things,
“clarify the consequences for companies that
do not undertake corrective action.”
Lack of faith in the NEB, combined with
Minister Carr’s stated determination to move
oil resources to tidewater, mean pipeline opponents
are, at most, cautiously optimistic about
the new government’s direction.
Briony Penn PhD is the author
of the new book, The Real
Thing: The Natural History of
Ian McTaggart Cowan.
www.focusonline.ca • February 2016
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