The phrase “do as I say, not as I do” comes to mind. Despite the Province of BC’s tough talk about its conditions for oil pipelines, in ongoing litigation regarding the Enbridge Northern Gateway pipelines and tankers proposal (“Northern Gateway”), BC is fighting to leave its decision-making responsibility in the hands of the federal government.
Earlier this year, we summarized the most recent in a barrage of court cases against Northern Gateway, this time brought by Gitga’at First Nation and Coastal First Nations (in the form of a petition) regarding BC’s responsibilities under the Environmental Assessment Act (“EAA”):
According to Gitga’at First Nation and Coastal First Nations, section 27 of the EAA allows BC to substitute a federal review process for a provincial environmental assessment, but it does not allow BC to substitute the federal decision for BC’s obligation to decide whether or not to approve a project by issuing a provincial environmental assessment certificate…
Gitga’at and Coastal First Nations also point out that the decision to grant or deny an environmental assessment certificate triggers BC’s constitutional duty to consult and accommodate First Nations on the issue. Thus, by abdicating its decision-making power, BC would effectively “give away” its duty to consult and accommodate, which Gitga’at and Coastal First Nations say is inconsistent with BC’s constitutional duties to First Nations. Gitga’at and Coastal First Nations also argue that BC had an obligation to consult First Nations before entering into the agreement which substituted the NEB process for a provincial environmental assessment in the first place, noting that this did not occur.
The Province of BC filed a response to the petition on behalf of the Minister of Environment, the Executive Director of the BC Environmental Assessment Office, and the Minister of Natural Gas Development and Responsible for Housing. BC’s response defends its decision to enter into an Equivalency Agreement in 2010 with the National Energy Board (“NEB”) that substitutes the NEB process for a BC environmental assessment on proposals such as the Northern Gateway pipeline, and states that in such cases BC does not need to make its own environmental assessment decision. The Equivalency Agreement can be found here.
What BC has said…
The provincial government in July 2012 set out five conditions that need to be met in order for it to consider heavy oil pipeline construction in BC (we have previously provided our thoughts on this). BC has consistently maintained that Northern Gateway has not met those conditions.
BC argued before the federal Northern Gateway Joint Review Panel (“JRP”) that Northern Gateway should be rejected because the risk of spills was too great. Of particular concern to the Province was inadequate spill response, as set out in BC’s written arguments before the JRP in May 2013:
“[The] Province submits that the JRP must accord very significant weight… to the fact that [Northern Gateway’s] plans for terrestrial and marine spill response remain preliminary, and that it cannot, today, provide assurance that it will be able to respond effectively to all spills. Given the absence of a credible assurance in this regard, the Province cannot support the approval of, or a positive recommendation from the JRP regarding, this project as it was presented to the JRP.”
Nevertheless, in December 2013, the JRP recommended approval of Northern Gateway and the Governor General in Council approved it on June 17, 2014, subject to 209 conditions. BC talked pretty tough after the federal approval of Northern Gateway, stating: “Our position remains unchanged: it is no.” Although interprovincial pipelines are under federal jurisdiction, Northern Gateway will also have effects on areas of provincial jurisdiction and, as BC underlines, will require numerous provincial permits.
… And what BC has done
By entering into an Equivalency Agreement with the federal NEB, the Province of BC allows for substitution of BC’s environmental assessment process with a federal review process handled by the NEB. The Equivalency Agreement also purports to give away BC’s power to issue an Environmental Assessment Certificate (“EAC”), which is ordinarily necessary before any required provincial permits are granted for a reviewable project. BC has the power to terminate the Equivalency Agreement by giving 30 days’ notice to the NEB, but such termination does not affect final decisions that have already been made by the NEB. BC did not terminate the Equivalency Agreement in the context of Northern Gateway, and BC continues to rely on the Equivalency Agreement for proposals such as Kinder Morgan’s Trans Mountain pipeline and tankers project.
Despite BC’s tough talk that Northern Gateway does not have provincial approval, in its arguments against Gitga’at and Coastal First Nations BC vigorously defends its ability to hand over its decision-making authority for proposals such as Northern Gateway to the federal government. BC argues that the EAA gives it broad discretion to determine in advance that BC does not need to make a decision about whether to issue an EAC for any pipeline project where the NEB is conducting a review. The Province also argues that it has no duty to consult First Nations with respect to the decision to enter into the Equivalency Agreement because it asserts such a decision does not adversely affect First Nations’ rights.
Putting the legal issues of the case aside, it appears that BC is saying one thing and doing another. On the one hand, the BC government has stated opposition to Northern Gateway because BC’s conditions haven’t been met. On the other hand, BC is fighting First Nations in court to defend its ability to give away environmental assessment decision-making authority to the federal government with regard to major pipeline projects. This is troubling in the context of Northern Gateway given that BC continues to maintain the project isn’t safe or desirable for British Columbians, while at the same time seeking to limit the scope of its own legal decision-making capacity regarding the project.
BC’s inconsistent position is also relevant to the proposed Kinder Morgan Trans Mountain pipeline and tankers project. The NEB has recently denied BC's request for disclosure by Kinder Morgan of information on plans for emergency spill management, highlighting questions about BC’s ability to ensure its concerns are addressed through the NEB process. Yet, BC has not responded to calls from opposition parties and the public to withdraw from the NEB Equivalency Agreement and require an independent provincial review of Kinder Morgan’s proposal – one more robust than BC’s currently flawed environmental assessment process. For the moment it seems the BC government is content to talk tough on oil pipelines while trying to quietly pass the buck to the federal government.
Gavin Smith, staff counsel
Lucy Yuan, summer legal volunteer