Update III: The Fraser Valley

The Ministerial Panel on the Proposed Trans Mountain Pipeline Expansion reached British Columbia’s Fraser Valley on July 21, 2016, convening meetings in Chilliwack, Abbotsford and Langley with more than 375 attendees and nearly 150 presenters.

There were continuing expressions of dissatisfaction about the amount and extent of public notice for these meetings. At the same time, presenters were nearly unanimous in their support for this expanded opportunity to have input into the federal government’s pipeline review process. Many individuals, businesses, environmental organizations and municipal representatives reiterated concerns that, in its formal review of the Trans Mountain project, the National Energy Board (NEB) was too restrictive in who could speak and the issues they could address, and too reticent to answer questions about its own process or to allow others to orally cross-examine intervenors about the details and accuracy of their evidence. Accordingly, again, most presenters to the Ministerial Panel expressed their gratitude at having an opportunity to continue what they regard to be an important conversation.

The list of issues recorded below is representative, rather than comprehensive, and is intended to illustrate the range and nature of issues that presenters are bringing to the Panel’s attention. The Panel, in turn, will continue to listen and synthesize input for inclusion in a November 1 report to Minister of Natural Resources Jim Carr.

Business and Labour Support – Presenters from business and labour groups spoke in support of the project, welcoming the short-term boom in construction spending and the long-term impact of ongoing employment for a smaller cohort and tax contributions to governments at all levels.

Unfunded Costs – Municipalities along the route questioned whether the taxes and benefit agreements to be paid by the proponent would be sufficient to offset extra costs of accommodating pipeline construction and ongoing maintenance. (e.g., Langley Township estimated that it would face more than $12.8 million in additional costs over the pipeline’s 50-year lifetime from the expense and difficulty of working around the line when building or servicing water and sewer systems, roads, boulevards and other infrastructure.)

Impacts on Private Property – Landowners said that rules governing project preparation and construction favour the proponent in granting access to private property. They also criticized the process by which compensation is calculated for the alienation of land and/or for damages occurring during construction (see also the Farm Impacts section, below).

Aquifers – The current and proposed Trans Mountain pipelines pass within a series of aquifers that are the main source of drinking water for a large population in the Fraser Valley. Presenters worried that a spill could render the water undrinkable, perhaps permanently.

Species at Risk – Presenters questioned whether the regulations and stipulations of the Species at Risk Act (SARA) have been properly observed.

Economic Benefit vs. Environmental Risk: Beginning in Calgary, presenters noted that the predicted economic benefits of the Trans Mountain expansion are specific and precise, while the risks are conditional and indistinct, making it difficult to compare one with the other. B.C. presenters objected further that benefits flow preponderantly to the owners, builders, users and servicers of the pipeline, while the risks are spread among those who do not benefit – including the whole taxpaying population in the event that a spill outstrips the proponent’s insurance and/or occurs in the marine area, outside the proponent’s area of liability.

Tourism Impact – Presenters worried that even a small spill could seriously damage British Columbia’s tourism brand.

Access to Tidewater – Presenters challenged whether tidewater access would allow Canada to claim world prices for its oil exports, suggesting that the current discount is largely attributable to the higher cost of transporting and upgrading oil sands bitumen. They also questioned whether the pipeline is intended to establish an alternative market (allowing Canada to claim a world price) or whether its purpose is to create an additional market, allowing Canada to increase exploitation of the oil sands.

Expanded Capacity – At a time when the world is trying to constrain fossil fuel-related greenhouse gas emissions, presenters suggested that it is imprudent, economically as well as environmentally, to expand carbon-fuel infrastructure.

Safety – Presenters suggested that it would be preferable to reroute the pipeline away from rivers and along highway rights-of-way, especially through the Lower Mainland, to avoid schools, parks and water courses. Some also reiterated the “Cherry Point option,” in which the pipeline would be diverted away from Metro Vancouver to an existing export terminal in Washington State.

Emergency Planning – Presenters objected that the NEB recommended approval of the new pipeline before Trans Mountain had designed or submitted its emergency response plans.

Transportation Safety – Presenters challenged the idea that a pipeline would reduce the risk of transporting oil by rail, saying that a new pipeline would greatly increase export capacity for diluted bitumen without diverting or reducing rail-based crude oil shipments.

Defining Public Interest – Challenging the NEB finding that the Trans Mountain pipeline is “in the public interest,” the City of Surrey suggested that “the definition of the public interest cannot include local communities being forced to bear the burden and unnecessary costs of the project.” The Township of Langley proposed that, “To be in the public interest, conditions must be attached to any approval that would seek to ensure that no additional cost or burden or unnecessary risk is placed upon local governments and taxpayers by the TMX.”

Global Interest – In the context of the Paris agreement on climate change, a presenter suggested that the test for a pipeline expansion should be not just the national interest, but some definition of a global interest.

National Energy Plan – Many presenters said the government should create a national energy plan and/or a national climate action plan before committing to new fossil fuel energy infrastructure.

Downstream Emissions – Presenters suggested that Canada should take responsibility for all greenhouse gas emissions related to its exports (i.e., including the emissions that other countries create by burning fossil fuels imported from Canada).

First Nations

Free, Prior and Informed Consent – First Nations pointed to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as further confirmation of the rights of First Nations to be consulted. And while the Ministerial Panel is not directly responsible for the duty to consult First Nations (this responsibility rests with Government of Canada as a whole and continues to be coordinated by Natural Resources Canada), presenters said they had not received adequate notice and that local protocols must be respected in order that these meetings are perceived to have legitimacy. (N.B.: UNDRIP was also raised in all previous meetings, by First Nations and by supportive industry spokespeople for groups such as the Canadian Association of Petroleum Producers.)

Equity Participation – First Nations presenters stated their interest as stewards of the land and legal title holders, adding that they should be regarded as equity partners for new development in their territories.

Tsawwassen Input – As the only First Nation on the route with a modern treaty, the Tsawwassen presenter made clear that there are still constitutionally protected treaty rights that have to be respected.  

NEB Response – First Nations that submitted substantive written and technical interventions in the NEB process said they had no indication whether those submissions were read or taken into account. They further objected that, in replying to direct questions, the NEB either didn’t respond at all or, frequently, pointed back to existing material that, in the eyes of the First Nations (and others who offered similar criticisms) did not answer the questions at hand.

“Subsidizing” Government Review – The Kwantlen First Nation, which was a recognized intervenor in the NEB review, stated that it had received inadequate funding to participate in that process to engage the expert assistance and pay for the time it took to understand and respond to Trans Mountain’s 15,000-page application. The lack of funding continues to be an issue as First Nations are faced with numerous processes and consultation on this and other issues.

Farm Impacts

Agricultural Land Reserve – Farmers in the Fraser Valley objected that the NEB’s authority can override the protections of British Columbia’s Agricultural Land Reserve.

Access to Agricultural Land – Farmers and landowners object to having to obtain Trans Mountain/Kinder Morgan’s permission when crossing pipelines on their own land, saying that Kinder Morgan’s multi-day response time can severely delay planting and harvesting.

Depth and Placement – Farmers object to Trans Mountain’s request that the NEB grant an additional six-metre right-of-way “safety zone” to accommodate occasions where the pipeline is shallower than its design specification and/or runs outside the existing right-of-way. Rather, farmers said, the company should move the pipeline into the existing right-of-way or negotiate new or additional easements?

Shifting Regulatory Environment – Presenters suggested that, before considering the NEB recommendation, the federal government should rethink the implications of the Pipeline Safety Act, which came into force on June 19, 2016. Presenters also said government should consider economic changes (the drop in the price of oil), changes of case law (especially the implications of the Tsilhqot’in decision), new government climate commitments, and new U.S. rules regarding the transportation of unconventional oil on land or sea.

Construction Issues: Trenching – Presenters suggested that, if the project is approved, Trans Mountain should be required to bore under water courses rather than risk the environmental damage of trenching across.