WINNIPEG FREE PRESS COLUMN: Trudeau government put to test over pipeline

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It is a victory. But not a solution.

On Saturday, at Sagkeeng First Nation northeast of Winnipeg, aboriginal elders will meet with officials from the National Energy Board and Enbridge Inc., one of North America’s largest energy transportation companies, for a day of ceremony, feasting and “sharing the gift of knowledge.”

The focus of the meeting is Enbridge’s proposed Line 3 replacement, a $7.5-billion upgrading of a 1,600-kilometre-long crude oil pipeline that runs from Alberta through Saskatchewan and Manitoba on its way to Wisconsin. It is one of the longest pipelines in Canadian history, and second only to the Energy East pipeline project in cost.

The face-to-face meeting of elders, bureaucrats and company representatives may not seem like a big deal. Yet, despite the fact Line 3 impacts 49 First Nations communities in three provinces — and despite the constitutional duty to consult and accommodate First Nations in all matters of resource development — it has proven nearly impossible to bring together First Nations with project proponents and the federal agency vetting the application to dramatically expand the capacity of Line 3.

So this is a step forward. The elders are expected to make an impassioned plea to Enbridge and the NEB to take a moment to consider the broader implications of the project and other initiatives. The elders say it does not make sense to approve the construction of new pipelines before assessing broader environmental issues, including climate change.

Regardless of what one thinks of the value of traditional aboriginal knowledge in a regulatory process, it is an essential idea that should form part of any regulatory oversight of pipeline projects. Unfortunately, it’s not likely the elders will change many minds Saturday.

The former federal government delegated its duty to consult to the NEB. Since then, the energy regulator has tilted the playing field profoundly in favour of resource companies.

Just last week an agreement was reached to allow the elders to testify without restriction before the NEB. Prior to that, the NEB demanded elders sign an undertaking they would not discuss scientific or technical information, offer opinions from others, make comments on NEB decisions or the project itself, make any recommendation to the NEB or raise “questions that require an answer from either Enbridge or the board, or rhetorical questions.”

It’s pretty easy to dismiss traditional aboriginal opinions as irrelevant when you have instructed them to stay away from making any relevant comments. The NEB has since dropped these demands. The restrictions amounted to a clumsy, cowardly gag order and an affront to aboriginal people.

The problems don’t stop there. The NEB prevented intervenors from directly cross-examining Enbridge, despite the fact they had pointed out Enbridge’s initial application lacked basic information on the pipeline’s environmental and human-health impacts.

When challenged about its protocols, the NEB responded with classic bureaucratic aplomb. In an Oct. 30 decision, the NEB wrote while it “must ensure that its process is procedurally fair in all cases, meaningful and fair participation varies with the context.” It argued it has a legal obligation to ensure “all applications be heard as expeditiously as the circumstances and considerations of fairness permit, but within the time limit provided.”

It appears the NEB believes that while fairness is important, its relative importance fluctuates with “context.” Further, the pace of hearings trumps meaningful and fair participation by intervenors.

This deference to the applicant’s interests is demonstrated by the fact the NEB is demanding final written submissions from intervenors be filed on the same day Enbridge makes its only oral submission on Line 3. In other words, intervenors are being asked to draft their responses before they actually get to hear from Enbridge.

All this means, regardless of what the NEB decides, Line 3 will ultimately become a political issue for the new Liberal government.

The NEB cannot approve Line 3; it can only make a recommendation to federal cabinet. Thus, it’s likely First Nations and other intervenors will take their cases directly to cabinet.

This is where things get very interesting.

The new natural resources minister is Jim Carr, a rookie Winnipeg MP. That collision of cabinet and regional politics will make this file particularly challenging for the government. Carr is aware failure to adequately address First Nations concerns about the project and the process could undermine Prime Minister Justin Trudeau’s stated intention to develop a new “partnership” with First Nations communities based on trust and integrity.

Trudeau has already directed his ministers to address a number of the issues that arise in the Line 3 application. Indigenous and Northern Affairs Minister Carolyn Bennett has been asked to look at ways of ensuring Ottawa is “executing its consultation and accommodation obligations.” Carr has been told to “modernize” the NEB and broaden its knowledge in environmental science, community development and “indigenous traditional knowledge.”

The Trudeau government is aware of the criticism of the NEB. Canadians are waiting to see if it can walk the walk.

The current NEB process appears to be unfairly tilted in favour of the applicants, so much so it cannot come close to fulfilling Ottawa’s obligation to consult and accommodate aboriginal people.

The Liberal government has to realize that unless it can live up to its own hyperbole about rebuilding relationships, and fixing the NEB, it will not only inherit the current flawed system, it will own it.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition November 28, 2015 A15

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