5 reasons why environmental reform matters after Canada’s controversial pipeline purchase

Trudeau campaigned on a promise to make environmental assessments credible again — then he spent $4.5 billion on the Trans Mountain Pipeline. What does this mean?

(William George (centre), Tsleil-Waututh member and spokesperson for Kwekwecnewtxw-Protect the Inlet, leads a song at the ‘No Buyout, No Kinder Morgan’ rally in Vancouver, on May 29, 2018. Photo: Julia-Simone Rutgers/The Discourse)

Trudeau campaigned on a promise to make environmental assessments credible again — then he spent $4.5 billion on the Trans Mountain Pipeline. What does this mean?

The federal government is buying the Trans Mountain pipeline and infrastructure from Kinder Morgan for $4.5 billion, pledging to “immediately restart construction” on the project, which was halted by the company in April.

During the May 29, 2018, announcement, Finance Minister Bill Morneau called the environmental assessment process for the project — which would triple the amount of bitumen carried from Alberta’s oil sands to B.C.’s south coast — “the most rigorous process in environmental assessment in our country’s history.”

But right now, the Canadian government is in the middle of overhauling the environmental assessment process after Justin Trudeau campaigned on the idea that a “new, fair process” was needed. In February, Bill C-69 was released for parliamentary review. Among other things, it outlines a new Impact Assessment Act which would replace the current environmental assessment process and change the standards for making decisions on major projects.

The feds have said that no project proponent will be asked to “return to the starting line” when it comes to applications for environmental approval, so the new act won’t apply to Trans Mountain. But as Canada takes full ownership of the controversial pipeline, it seems what happens with environmental assessment matters more than ever.

Over the past few months, I’ve been interviewing people involved in shaping these changes. I’ve also read through recommendations for reforms from the government’s expert panel, based on hundreds of submissions from stakeholders on all sides. While Canadians continue to debate whether Trans Mountain should move forward, here are five of the Liberal government’s campaign promises that scientists, researchers and policy makers have highlighted as key to helping mitigate uncertainty for future projects:

1. Independent science

Campaign promise: “ensure that decisions are based on science, facts, and evidence, and serve the public’s interest.”

When it comes to Trans Mountain, scientists outlined a series of gaps in the evidence used by the National Energy Board to make its recommendation on the pipeline expansion. Yet, federal cabinet approved the pipeline in 2016. Now a series of court cases including the province of British Columbia are building arguments around those gaps.

Trans Mountain isn’t the only project that’s caused a stir about evidence. The National Energy Board has faced numerous accusations of bias in its use of evidence and energy projections to make its decisions on major projects.

Part of the issue is that most of the evidence used to assess projects must be put forward by the industry group that wants the project to happen. This is an unfair burden on industry, as a leading environmental assessment consultant points out (TransCanada said it lost $1 billion in its application to build Energy East). It also puts government scientists and independent researchers on the defensive in a context of dwindling resources for public science.

These criticisms are why the government built new rules to make decisions “based on robust science, evidence and Indigenous traditional knowledge” in the new bill.

Martin Olszynski, a law professor at the University of Calgary, says this matters because, in environmental law, bad evidence compromises every level of decision-making that follows, leading to a bad assessment, and conflict.

On top of that, much of this evidence isn’t public. It can take freedom of information requests just to get the basic information needed to check if the evidence is sound and conditions are met, Olszynski points out.

In their submissions on the reforms, experts recommended assessment decisions be based on independent oversight, transparency and cross-examination of evidence (as is standard in academic research). The more airtight the evidence, the less likely a project will be challenged in court for that reason.

The verdict so far? Olszynski says it’s ill-equipped, as written, to handle evidence in an independent way.

For its part, if the bill is passed, the National Energy Board would be replaced by another body, the Canadian Energy Regulator. The government says the new regulator would “reflect Canadians’ priorities in areas such as greater certainty, more transparency, enhanced public participation and an expanded role for Indigenous peoples.”

2. Meaningful consultation with Indigenous Peoples

Campaign promise: “We will undertake, in full partnership and consultation with First Nations, Inuit, and the Métis Nation, a full review of laws, policies, and operational practices.”

When the government announced the new bill in February, it articulated a clear focus on developing a new relationship with Indigenous Peoples. In May, a second draft of the bill included a commitment to implementing the United Nations Declaration of Indigenous Peoples (UNDRIP).

One of the things the new rules say is that the new agency must consider the impacts on Indigenous groups in its assessment.

This matters because Indigenous nations are rights and title holders. The government has a legal obligation to meaningfully consult before and throughout the construction of major projects like pipelines through their territory. If courts rule the consultation wasn’t adequate, an entire pipeline proposal can be brought back to square one, as we saw with the Northern Gateway project.

In  announcing the Trans Mountain deal, Minister Morneau referenced “extensive and ongoing consultation with Indigenous communities.” The government also previously launched the Indigenous Advisory and Monitoring Committee made up of 13 members from communities affected by the proposed pipeline expansion to monitor developments.

As of April 2018, Kinder Morgan said that it had signed agreements with “43 Aboriginal groups” of the more than 133 that they consulted with. But six First Nations are challenging Canada’s environmental regulator arguing that they were not adequately consulted prior to the government’s approval of the Trans Mountain pipeline expansion, as required by Canadian and international law.

As our Tracking Trans Mountain database shows, even among the First Nations that have signed agreements with Kinder Morgan, there is criticism that the consultation process was inadequate.

“It’s clear that there wasn’t enough effort to work with these Indigenous communities,” says Sara Mainville, who is a partner at OKT law and on an advisory committee for the environmental assessment review.

Mainville says she was among those who pushed for UNDRIP to be included in the second draft of the bill and she’s happy to see that addition. But she’s concerned that final decisions go to ministers. “We’re still relying on the sort of ‘trust us,’ that the agency will listen to Indigenous perspectives prior to making decisions.”

Along with many others, Mainville says she’s alarmed there’s very little language around consent and how UNDRIP will actually be implemented within the new Impact Assessment Act. “That’s the sad thing about this consultation,” she says, “

“You’re being asked to give information and to participate in a process that is so void of real protection of your interests and your rights.”

The government is “doing the absolute minimum that they have to do and applauding themselves for it.” she says.

3. Big picture thinking

Campaign promise: “We will also ensure that environmental assessments include an analysis of upstream impacts and greenhouse gas emissions resulting from projects under review.”

Canada’s most recent submissions to the United Nations show that we have a ways to go to meet its national carbon targets. We’ve promised the U.N. that we want to reduce economy-wide greenhouse gas emissions by 30 per cent below 2005 levels by a 2030 deadline.

The government says its climate change plan to “reduce emissions across all sectors of Canada’s economy,” stimulate growth and build climate change resilience will support efforts to meet these targets. But many scientists and people tracking Canada’s progress say the country’s on track to miss this target regardless of measures set out in its national climate plan. In Alberta and Saskatchewan, greenhouse gas emissions are currently going up.

The concern with the current environmental assessment process is that carbon-pumping projects like pipelines are assessed on an individual basis — with no systematic way to assess their combined impacts. One fossil fuel project alone will not break the carbon budget, but a bunch of them could.

The government’s expert panel, appointed to review suggested reforms and recommend changes, heard that the environmental assessment process should not be a substitute for good policy. But they near-unanimously recommended the government should use big-picture tools like strategic and regional assessments to address combined impacts like climate change.

The verdict so far? Minister of Environment and Climate Change Catherine McKenna assured a new, proposed Impact Assessment Agency and Canadian Energy Regulator will take climate change into account.

How exactly this will work isn’t clear, but so far, there’s nothing stopping a project that seriously limits Canada’s ability to meet climate targets from being approved, explains Anna Johnston from West Coast Environmental Law. And the use of the broad assessments in the first place remains, like before, up to the discretion of ministers.

4. Focus on overall sustainability

Canada’s assessment laws are written to address “significant adverse environmental effects,” an approach dubbed “making bad projects a little less bad,” by Bob Gibson of the University of Waterloo. But the government’s expert panel recommended that a new agency review not just narrow environmental impacts, but whether or not the project can enhance the well-being of Canadians in the long term. For instance, critics of the Trans Mountain pipeline assessment were frustrated the National Energy Board refused to explore possible energy alternatives to the project.

The verdict? The new agency would look at a project’s “contribution to sustainability” as promised. But a close read of Bill-C69 reveals it’s not a firm condition. Instead, it’s one part of a list of “considerations” by the new agency to determine if the project satisfies the “public interest.”

As Olszynski and others point out, a lack of substantive rules and clear lines in the sand means the proposed agency continues to be “tilted toward private development.” Environmental lawyers often point to data from the Canadian Environmental Assessment Agency showing that of the 25,000 natural resources projects assessed by the agency between 1995 and 2000, 99.9 per cent were approved.

“As someone who has been participating in the efforts to make Bill C-69 better, this is proof that this test of public interest is always going to favour economic interests over anything else,” explains Mainville. “The big disappointment is how far the government is going to make sure a project happens.”

5. Distance from politics

Campaign promise: “We will end the practice of having federal ministers interfere in the environmental assessment process.”

Cabinet ultimately gave the green light to the Trans Mountain pipeline, citing “national interest” and standing firm in its authority to ensure the pipeline is built. In February, freedom of information requests filed by the National Observer revealed public servants faced pressure to approve the pipeline before they did. As the federal government hedges all bets on the pipeline, the province of B.C. is challenging the feds’ authority to do so in court.

Experts recommended the best way to ensure sound decision-making reigns above politics is to create an independent, tribunal-style assessment agency.They argue that a tribunal could better address implications for Indigenous rights, keeping disputes out of expensive courts. “First Nations do not have money to go to court,” Mainville says. “They are giving up something to go to court.” An independent tribunal could also reduce uncertainty for investors, which sits at an all-time high.

Instead, just as before, the last word on a project assessment would still go to cabinet. When asked generally about concerns that the new act leaves too much discretion up to the government, a representative from the Environmental Assessment Agency wrote in an email: “The proposed impact assessment process would touch upon a wide variety of projects over a broad range of settings. For this reason, some discretion is necessary to allow for flexibility dealing with the circumstances of individual projects.

Mainville hasn’t lost sight of the potential in proposed reforms. “I haven’t given up. It’s too vague and way too discretionary, but I’ll continue to work to make it better.”

Bill C-69 will soon move to third reading and has a ways to go before royal assent. The public can submit comments until June 1. I’ll continue to watch the reforms closely — what amendments are made, and how it’s all implemented. You can follow my environmental reporting here. Send me your questions on Twitter or email me at lauren.ca.

This story was produced as part of #TrackingTransMountain, a collaborative reporting project from The Discourse, APTN, and HuffPost Canada that aims to deepen the reporting on Indigenous communities affected by Kinder Morgan’s Trans Mountain expansion project.  

This piece was edited by Lindsay Sample with fact-checking and copy editing by Jon von Ofenheim. The Discourse’s executive editor is Rachel Nixon.  


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