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Flawed Process, Flawed Project

Issue: 83 Section: Environment Geography: West Topics: Enbridge, tar sands

June 11, 2012

Flawed Process, Flawed Project

Controversy flows on the Northern Gateway pipeline and Canada’s oil economy

by Trevor Kehoe

The Yinka Dene Alliance march in Edmonton on May 2, 2012. The Alliance is made up of First Nations from northern BC who have banned the Enbridge Northern Gateway Pipelines from their territories. Photo: The Yinka Dene Alliance

VANCOUVER—Since January, the federal Joint Review Panel (JRP) has been touring Alberta and BC, accepting public statements on the proposed Enbridge Northern Gateway project. The controversial pipeline would carry tar sands bitumen and chemical condensate from Alberta to the BC coast.

Although some observers are encouraged by the JRP and opportunity for open dialogue on the pipeline, many First Nations, legal experts and environmentalists say the review process and the project itself are deeply flawed.

"We think there's significant problems with the way the federal government has carried out its consultation," said Josh Paterson, legal counsel with West Coast Environmental Law.

"The JRP process itself has no authority to look at the impacts on First Nations rights and title that would be caused by this project. The federal government still has the duty to consult with First Nations regardless of what this panel does, and so far they haven’t shown that they're willing to have very serious discussions about the Enbridge issue or the impacts on rights and title."

If the pipeline is approved, Paterson predicts there will be legal challenges from multiple First Nations, who have already stated they would contest the federal government's failure to carry out constitutionally-required consultations. Paterson also said that those cases will likely go to the Supreme Court of Canada, although it's hard to predict how the court would rule.

There has been a record number of registrants to give oral statements to the JRP, more than 4,000, and a strong negative response against the pipeline in many communities. Nevertheless, the Canadian government has openly, and some say undemocratically, favoured the project during the regulatory process, calling it "in the national interest."

Paterson notes that the Harper government is attempting to give the federal Cabinet the final say on all future pipeline projects, instead of the National Energy Board (NEB). Currently, the JRP is considered an independent body and offers a recommendation to the NEB, which then rules on whether or not the project is in the public interest. The NEB is an independent federal agency; its funding comes from government, but 90% of costs recovered from industry.

Canada's regulatory process is already heavily influenced by industry, critics say, and giving Cabinet members the final say on projects rejected by the NEB puts more power into the hands of industry-friendly politicians, rather than an independent third party.

The proposed pipeline and resulting increase in oil tanker traffic on the west coast, along with a "streamlined" environmental review process, has experts declaring that a broad new discussion is needed on industry's relationship with government.

"Environmental Law is really being gutted and environmental protections... are just being erased in order to accelerate approvals of pipeline projects like Enbridge and we think that's really problematic," said Paterson. "We think that’s going to result in a legacy of poor decisions being made and that's going to affect Canadians well into the future."

Resource exploitation by large corporations on Canadian soil is nothing new and has been around since the country was founded, including the operations of the Hudson's Bay and North West companies. Environmental groups are saying the fight is more important than ever, with politicians pandering to Asian and other markets to sell Canada’s resources, while failing to deal with a number of fundamental issues.

"Obviously this is a pretty large-scale fight," said Ben West, campaigner for the Western Canada Wilderness Committee. "We're talking about some of the wealthiest corporations in the history of industrial civilization. Increasingly we've seen our leaders from Canada... going to Asia and trying to make the case that this is a safe place to invest [in the pipeline and other resource industries] and to a certain extent I really think that's the nature of this conversation."

West says recent attacks from Conservatives against environmental organizations and the labeling of concerned citizens as "radicals" shows the current government feels threatened by those beginning to think beyond the oil economy.

"To me it’s a sign of desperation and a clinging to maintain the status quo," said West. "The big question that I think we're all going to need to deal with is: what does a different type of economy look like? Canada's economy is very much based around oil at the moment but that can't last forever."

West notes that while the Canadian government appears unconcerned about voices against the project, support is growing. Recently, several First Nations participated in theYinka Dene Alliance (YDA) train journey that ended at the Enbridge AGM in Toronto. The trip raised awareness and protested against the pipeline in a number of cities.

The JRP was slated to hear oral statements until March 2013 and make their recommendation in the fall, but the timeline and review process may soon be changed by aspects of the parliamentary budget bill, C-38.

Trevor Kehoe is a journalist from Calgary, now based in Vancouver.

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The Dominion is a monthly paper published by an incipient network of independent journalists in Canada. It aims to provide accurate, critical coverage that is accountable to its readers and the subjects it tackles. Taking its name from Canada's official status as both a colony and a colonial force, the Dominion examines politics, culture and daily life with a view to understanding the exercise of power.

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