Assessing the Northern Gateway pipeline: Do’s and Don’ts

A lot has happened since the last session of hearings were scheduled in early March for the Joint Review Panel of the proposed Enbridge Northern Gateway pipeline.

In April the Conservatives tabled legislation to overhaul the entire environmental review process — the omnibus budget, Bill C-38, arguably the most destructive environmental legislation in Canadian history. Enbridge itself had a tough summer, with a major oil spill in Alberta, getting caught altering promotional video graphics to strategically remove otherwise dangerous islands from its tanker route, and, most notably, finding itself on the wrong end of a scathing report by the US National Transportation Safety Board (NTSB) highlighting the neglect and incompetence that led to a three million-litre oil spill in the Kalamazoo River in Michigan in 2010.

And now that the review panel is preparing to enter final hearings — scheduled to begin September 4 — several obvious questions come to mind: How will the recent overhaul (and hollowing out) of environmental legislation affect the construction of the pipeline, as well as the effectiveness of the review process? How useful is the NTSB report in assessing whether Enbridge is competent and responsible enough to oversee such a massive and delicate pipeline project?

The answer? None of your business. At least, according to the Conservatives.

Nathan Cullen, a registered intervener at the review (and the NDP’s natural resources critic), thinks otherwise. He has requested to ask just such questions at the review panel this fall. Not only does Cullen recognize that the situation has fundamentally changed since the review process began, but as the only MP registered as an intervener, he feels it is his duty to bring the concerns of his constituency to the review panel (much of the pipeline would go through Cullen’s northern BC riding of Skeena-Bulkley Valley).

However, on August 22 the federal justice department sent its own letter to the review panel, requesting that Cullen not be allowed to proceed with his questions, aimed at witnesses from several federal departments.

Here, as briefly as possible, are the technicalities: The government argues that Cullen’s questions go beyond the scope of the hearings. Questions at the final hearings stage, they claim, must be about evidence already submitted to the panel (and, therefore, prior to both Bill C-38 and the NTSB report). As well, they argue that Cullen’s other questions are “outside the List of Issues found in the Hearing Order and therefore not within the mandate of the Panel.” These so-called unrelated issues that Cullen wants to raise include, for example, questions about Transport Canada’s reluctance to demand mandatory and enforceable commitments from Enbridge that they will fund safety measures.

For his part, Cullen argues that his questions do indeed fall under the mandate of the review panel. He, too, points to the Hearing Order, which states that discussion points are “not be limited to” those listed in the Hearing Order document, and simply “must relate” to those listed. As Cullen says: “Strictly limiting the topics to the List of Issues as set out in the Hearing Order could constrain the Panel from hearing questioning that is relevant to fulfilling its mandate.”

Regardless of who wins the technicality game, this attempt by the Conservatives to shut down Cullen’s participation in the review panel is petty, disingenuous, and juvenile — unhelpful to the assessment process, and unfair to the concerns of many Canadians regarding the Northern Gateway pipeline.

There are legitimate and pressing concerns about the influence of recent legislation on the Northern Gateway environmental review. Bill C-38 clobbered environmental reviews: Review processes are now subject to time constraints. The federal cabinet can overrule environmental assessment decisions. The scope of federal environmental assessments has been slashed. Pipelines projects are exempted from the Navigable Waters Protection Act. They are also exempted from species at risk legislation (meaning endangered fish will no longer be taken into account when pipeline projects are assessed, thereby removing protection from 80% of the 71 freshwater species at risk of extinction).

Absurdly, the review process no longer includes any federal department that can still conduct environmental assessments [Bill C-38 stripped this ability from 37 departments, leaving assessments in the hands of the National Energy Board, the Canadian Nuclear Safety Commission, and the Canadian Environmental Assessment Agency]. And just as absurdly, the government has chastised Cullen for proposing a question that they claim only those (now three, conveniently absent) departments could answer.

The Conservatives have politicized the Northern Gateway pipeline. Not only was Bill C-38 designed to allow pipeline projects like the Northern Gateway to go ahead, Harper himself has stated his intention that the pipeline be approved.

And yet it is the Conservatives who accuse Cullen of playing politics. Cullen’s counterpart, Natural Resources Minister Joe Oliver, said that Cullen “is seeking to politicize the work of the panel instead of waiting to hear the independent experts report.” (It was Oliver, by the way, who once called environmental organizations “radical groups.”)

These are just games. The only reason Cullen has become so involved is because the Conservatives have made it necessary that he do so — the environmental review process is now so weak that it has all but lost its legitimacy.

Is Cullen’s request a breach of the review panel’s mandate? Maybe. Is the review panel flexible enough to take into account new evidence in the later stages of assessment? Obviously not. Is the structure of the review panel adequate to deal with major changes to environmental legislation and to the review process itself? Of course not. Are Cullen’s questions vital to the effectiveness and credibility of the environmental review of the Northern Gateway pipeline? Yes, resoundingly so.

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