Vaughn Palmer: Doubts about Northern Gateway in two capitals
VICTORIA — As decision day approached, B.C. Premier Christy Clark voiced a standard response to the prospect that the federal government would grant conditional approval to the Enbridge Northern Gateway pipeline: “Our conditions are not changing and they have not been met.”
Ottawa had its 209 conditions, set out last December in the review of the project by the Nation Energy Board. But back in July 2012, Clark defined five conditions that would have to be met before the B.C. government would support the pipeline or any other project to move heavy oil across the province by pipeline or by tanker along the West Coast.
She referred back to the conditions again and again in recent days, never venturing into the “what if” realm of how she would respond should Enbridge attempt to start construction before they were met.
She didn’t need to.
The provincial concerns regarding safety, spill prevention, and environmental protection were covered at length and in detail in the 209 conditions laid down by the board.
The lone outlier on the B.C. list — that the province “receives a fair share of the fiscal and economic benefits” of the project — might never come into play.
For the Clark government has good reason to doubt that Enbridge can meet the 209 conditions set out by the federal panel, particularly where those overlap with condition number four on the provincial list.
That’s the one that says “legal requirements regarding Aboriginal and treaty rights must be addressed and First Nations be provided with the opportunities to benefit from these projects.”
One can see the challenge by breaking down the 209 conditions. Some 113 must be met in the pre-construction phase, some as many as a year before any shovels go into the ground. About half of those preconditions for construction include a specific reference to First Nations, including all of the environmental and land use obligations.
Key conditions specify the need for the company to complete formal studies of traditional knowledge and traditional land use with the dozens of affected aboriginal groups throughout the region. Here’s a precis of conditions 53 through 56:
• “Northern Gateway must file with the National Energy Board for approval and serve a copy on all potentially-affected Aboriginal groups at least one year prior to commencing construction, a plan for identifying potentially affected traditional land use (TLU) sites or resources that arise from detailed routing and design. This includes finalizing the pipeline centre line and watercourse crossing locations and the Kitimat terminal’s final design.”
• “The plan must describe the methods that will be used to identify potentially-affected traditional land use sites and resources; how Northern Gateway has considered and addressed information from any aboriginal traditional knowledge studies; the general and specific TLU site types and resources that Northern Gateway expects to encounter; a summary of Northern Gateway’s consultation with potentially affected Aboriginal groups regarding the plan.”
Or consider the following excerpt from four conditions dealing with the obligation to identify, protect and manage trees that have been distinctively marked by natives for historical, territorial or cultural purposes since the year 1846:
“The plan must include: the methods for surveying or inventorying potentially affected culturally modified tree (CMT) sites at locations to be disturbed by construction; results of pre-construction surveys or inventories of sites; an assessment of the potential effects on identified CMTs; a description of mitigation measures to reduce or eliminate potential effects on identified CMTs; a summary of Northern Gateway’s consultation with potentially-affected Aboriginal groups regarding the protection and management plan, a description of any agreements or protocols regarding CMTs, etc..”
Consider, as well, that a number of aboriginal groups in the affected region are outright opposed to the project, raising doubts about whether it will be possible to secure the necessary access to their land to complete the studies.
The provincial government is a junior partner in some of the approval processes for the project. Conditions 112 through 115 oblige the company to confirm, prior to the start of construction, “that it has obtained all of the required archaeological and heritage resource permits and clearances ... from the B.C. Ministry Of Forests, Lands And Natural Resource Operations.”
Provincial permitting includes obligations to consult First Nations because, like culturally modified trees, archaeological and heritage evidence is a key component in establishing native land claims. Not likely will permits be granted unless the company can overcome profound opposition from many Aboriginal groups.
Hence Tuesday’s low-key reaction from B.C. Environment Minister Mary Polak. She said some progress has been made on addressing the provincial concerns and much more remains to be done.
Then again, the Harper government also downplayed the supposedly momentous news, announcing approval in a four-paragraph-long press release. No trumpeting whatsoever. Instead the release emphasized the conditional nature of the approval.
Perhaps Ottawa and Victoria are not that far apart in their estimation of the chances that Northern Gateway will ever be built.