Canada ‘altered’ scientific reviews of oil spill research, court hears

In this photo dated Dec. 5, 2019, a worker in Alberta takes measurements for the Trans Mountain pipeline expansion. Trans Mountain Photo / Facebook

Canada “altered” scientific reviews of oil spill research and “suppressed” information until after consultations over the Trans Mountain pipeline were over, says a lawyer for the Tsleil-Waututh Nation.

Scott Smith argued Monday at the Federal Court of Appeal that Canada had failed again in its duty to consult in a meaningful way, in part by intentionally withholding information associated with the Tsleil-Waututh’s concerns about the pipeline expansion project.

“My submission to you today is that Tsleil-Waututh was deprived of any opportunity to meaningfully dialogue,” said Smith in the Vancouver courtroom. “Either Canada was having a conversation with itself to resolve these issues, or it altered its scientists’ conclusions.”

Environment and Climate Change Minister Jonathan Wilkinson’s press secretary Sabrina Kim could not immediately offer comment when reached by National Observer.

Several B.C. First Nations are in court this week to argue against the Trans Mountain pipeline expansion. The court is focusing on the federal government’s conduct after it re-launched consultations last year and through this spring.

Consultations had to be redone after the Federal Court of Appeal quashed the approval of the pipeline in August 2018. Prime Minister Justin Trudeau re-approved the Trans Mountain pipeline expansion in June.

The expansion project, now being built by Canada through a Crown corporation, would nearly triple the capacity of the existing pipeline, to carry crude oil and other petroleum products from near Edmonton to metro Vancouver.

The Tsleil-Waututh Nation (TWN), Coldwater Indian Band, Squamish Nation and others submitted a memorandum of fact and law to the court that says Canada commissioned reviews of Tsleil-Waututh expert reports on oil spills without telling the First Nation.

This fact was “withheld” during government consultations, the memo states, and Canada instead “took positions contrary to those of its own scientists,” only providing the reviews to the First Nation after talks had wrapped up.

By comparing the draft and final reviews, the First Nation said, it became obvious that “the conclusions within were altered to advocate for project re-approval.”

The export reports were submitted by TWN to the government during a reconsideration hearing, held by what was then the National Energy Board in late 2018.

The reports were: an assessment of the risk of an oil spill during marine shipping by Simon Fraser University’s Thomas Gunton and Chris Joseph; an analysis of how an oil spill response might work, by environmental consulting firm Nuka Research; and an assessment of the behaviour of diluted bitumen during a marine oil spill, by environmental consultant Jeffrey Short.

Bitumen is a dense, viscous oilsands product that must be combined with chemicals in order to get it to flow smoothly along a pipeline. The resulting product is called diluted bitumen, or dilbit for short.

Government officials asked Environment and Climate Change Canada to produce a peer review of those reports, where new science could be brought to bear on the topic.

The initial version of those peer reviews is dated March 12, 2019 but TWN says they only received them on June 22. By that time, Trudeau had already re-approved the pipeline expansion, five days earlier on June 18.

“The duty to consult imposes upon Canada a ‘positive obligation’ to ensure it provides TWN with all necessary information ‘in a timely way’ so TWN had a meaningful opportunity to express its interests and concerns,” reads the memo.

“Canada failed to discharge that duty here.”

In between the March peer reviews and the June decision, TWN and Canada met on April 29, 2019, to discuss concerns linked to the expert reports that the First Nation had submitted.

TWN asked Canada if it had new studies or reviews on the project or on the reports it had filed — but was told by Canadian officials that “no such documents existed,” the court memo says.

Through cross examination, a senior bureaucrat at Natural Resources Canada confirmed that the peer reviews had been prepared by federal scientists before the April 29 meeting, and it was “possible” the request had been misunderstood.

Despite this, the First Nation also says it followed up on the April 29 meeting on May 17, asking again if there were any internal documents related to the expert reports and were told “there are no additional diluted bitumen studies to share at this time.”

Then, at a May 29 meeting, Canada finally revealed that the peer reviews existed, according to the court memo. It ultimately delivered the final versions on May 31 — hours after the final consultation meeting had just concluded that day.

“Canada suppressed and altered the peer reviews in relation to marine spills,” the memo states.

TWN says the peer reviews showed that government scientists “substantially agreed” on a central issue raised in the report by Short — how long it would take for diluted bitumen that had been released in an oil spill to submerge into the ocean, making it much harder to clean up.

Short had said that spilled dilbit in the Fraser River during the spring thaw could submerge within one to two days. Government scientists said dilbit in fresh water was at risk to submerge within five to 10 days.

Yet Canada maintained the view during the April 29 meeting that “diluted bitumen submergence can take approximately two to three weeks,” a much longer timeframe, the memo stated.

“How are we meaningfully dialoguing?” Smith asked the court on Monday. “Five to 10 days is not two to three weeks.” SOURCE

Trans Mountain pipeline expansion approval ‘unlawful,’ First Nations argue as new court challenge begins

Federal Court of Appeal hears arguments about inadequacy of government’s consultation process

Khelsilem of the Squamish Nation holds a news conference with four British Columbia First Nations groups challenging the re-approval of the Trans Mountain pipeline in Vancouver on Monday. (Ben Nelms/CBC)

Several B.C. First Nations are squaring off against the federal government in the Federal Court of Appeal in Vancouver this week, arguing that it failed to conduct meaningful consultations with them about the Trans Mountain pipeline expansion and that the project should be cancelled.

The case is similar to the previous Federal Court of Appeal case that quashed the approval of the pipeline expansion in August 2018 except it is focused on the specific window of time when the federal government revisited its duty to consult with First Nations before approving the project once again in June of this year.

“Canada has repeated many of the errors that led to the original quashing of the pipeline, and in some ways, consultation was worse than the first time around,” said Leah George-Wilson, elected chief of the Tsleil-Waututh Nation at a news conference on Monday.

“Today, we argue that the federal government’s approval of the pipeline is unlawful and must be quashed. Our experience is that consultation fell well short of the mark.” 

The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a collective of Stó:lō bands will be making arguments about why they believe the renewed consultation efforts fell short in each of their specific communities.

The Crown-corporation-owned expansion project would twin an existing 1,150-kilometre pipeline that extends from Edmonton to Burnaby, B.C., nearly tripling its capacity to move oil from Alberta to coastal B.C., and then to markets in Asia. The cost has been estimated to be between $7.4 billion and $9.3 billion.

Tsleil-Waututh says Ottawa ‘unilaterally focused’ on re-approving project

Tsleil-Waututh’s legal team was first to present arguments in court on Monday morning, in a packed courtroom with more than two dozen lawyers, community members and media.

Scott Smith, one of the litigators on Tsleil-Waututh’s legal team, said Ottawa refused to budge on issues of concern to the First Nation, “or change its position because it was unilaterally focused on re-approving this project.”

Chief Leah George-Wilson of the Tsleil-Waututh Nation speaks at a news conference alongside other First Nations groups that are challenging the re-approval of the Trans Mountain pipeline. (Ben Nelms/CBC)

Tsleil-Waututh’s main concerns about an expanded Trans Mountain pipeline include an increase in tanker traffic in Burrard Inlet; the effect a potential spill of diluted bitumen could have in the inlet and the Fraser River estuary; and the capacity to recover bitumen from such a spill.

The First Nation is also concerned about the impact of increased marine traffic on the southern resident killer whales and argued in court that the federal government prematurely re-approved the expansion before conducting further research necessary to assess that impact.

Prior consultation fell short, 2018 court ruling found

The federal government’s duty to consult stems from Section 35 of the Constitution, which recognizes Aboriginal and treaty rights. Over decades, court rulings have been defining what Indigenous rights look like and under what circumstances the government can make a decision that infringes on those rights.

The degree of consultation required and the accommodations that may need to be considered depend on the project under consideration and the level of potential impacts on a specific community.

Khelsilem, elected councillor and spokesperson for the Squamish Nation, said at the news conference the court case is about fighting the “substandard” level of consultation his nation saw from the federal government.

“The Squamish nation is committed to building a community, a territory, that is clean and that is prosperous. Not just for our people but all the people that now live in our territory,” he said.

“An expanded pipeline export facility within our territory and within this part of the world does not make sense given the risks that it would pose and the lack of meaningful respect for the rights of the Squamish people.”

The initial Federal Court of Appeal ruling in August 2018 stated that some of the federal government consultation work was adequate but found “at the last stage of the consultation process prior to the decision of the Governor in Council … Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.”

Workers survey around pipe to start of right-of-way construction for the Trans Mountain Expansion Project, in Acheson, Alta., on Dec. 3. The expansion project would twin an existing 1,150-kilometre pipeline, nearly tripling its capacity to move oil from Alberta to coastal B.C., and then to markets in Asia. (Jason Franson/The Canadian Press)

As a result of this ruling, the federal government was forced to revisit that last stage of consultation and tasked retired Supreme Court justice Frank Iacobucci with overseeing that work.

Over the next three days, several parties will be making arguments to the court: four First Nations groups, the federal government, Trans Mountain and several interveners. Proceedings will be livestreamed via the court website.

The case will focus on the work that happened under Iacobucci between Aug. 30, 2018, and June 18, 2019.

Upper Nicola and Stk’emlupsemc te Secwepemc, two of the six nations initially approved to proceed with arguments before the court, have since dropped out after signing agreements with Trans Mountain.

How Trans Mountain’s capacity compares against that of other pipeline projects.

Vancouver mayor calls massive First Nation development a ‘gift to the city’

Squamish Nation plans to build 11 housing towers on reserve land in the heart of the city

The 11 towers planned for the Senakw development project will have approximate 6,000 housing units. (Submitted/Revery Architecture)

Vancouver Mayor Kennedy Stewart says he supports a local First Nation’s plan to build a large-scale housing project in the centre of the city that is raising concerns about the pressures it will place on city infrastructure and services.

The Squamish Nation is planning to construct 11 housing towers with 6,000 housing units on 11 acres of property it owns at the south end of the Burrard Street Bridge. The Senakw development will be on federal reserve land, meaning the nation does not need permission from the city to forge ahead.

With about 10,000 residents expected to occupy those towers, it has some people asking if the neighbourhood is ready for the influx.

“I’m thinking of it as a golden opportunity, both in terms of reconciliation and in providing much needed rental housing for the city,” said Stewart Thursday on CBC’s The Early Editionadding that while there are no requirements for the nation to adhere to city policies, it is communicating in good faith with the city to make the project as successful and mutually advantageous as possible.

Coun. Sarah Kirby-Yung shares Stewart’s excitement about new rental units but told CBC Tuesday she has concerns about the pressures on transit infrastructure in the area.

Only about 10 per cent of the units will have parking availability, meaning many residents will likely rely on transit. She also noted the expense of connecting to sewage and other services.

Stewart said the city will have to get TransLink on board right away but sees the challenge as “less of an inconvenience and more of an opportunity” to look at options like connecting Senakw to the SkyTrain using light rail.

He said the city has in the past negotiated agreements with the Musqueam First Nation for policing and fire services and can do something similar with the Squamish Nation.

The nation also has the power to collect property tax to pay for those services.

The units will be built as energy-efficient as possible and will feature green roofs, according to current project renderings. (Submitted/Revery Architecture)

‘This is a game changer’

Larry Benge, co-chair of the Coalition of Vancouver Neighbourhoods, is concerned about the density and scale of the project and worries it could overwhelm the aesthetic of the “iconic” Burrard Street Bridge.

“It would be good if all parties involved or affected could discuss what’s going on,” said Benge.

Ginger Gosnell-Myers, Vancouver’s  first Aboriginal relations manager, said she finds it almost funny that people are asking to be consulted about a small sliver of land on traditional Squamish territory.

“This city is essentially built on stolen Musqueam, Squamish and Tsleil-Waututh land,” said  Gosnell-Myers Wednesday on The Early Edition“This is a game changer for this city. It’s a game changer for First Nation rights.”

Gosnell-Myers said Senakw will give future Vancouverites the chance to live in the city and it’s up to the city to respond to concerns about infrastructure and capacity.

Stewart say he is up to the challenge, including working with the park board, the school board and the province to ensure community services are available when the neighbourhood’s new residents arrive.

The Vancouver School Board is currently considering a motion to align  its policies and decisions with the United Nations Declaration on the Rights of Indigenous Peoples.

“I really think this is a real gift to the city,” said Stewart. “Everything we can do to make this project be successful is at the top of my list.”

‘Unprecedented’ potential for development

Together, the Squamish, Tsleil-Waututh and Musqueam nations hold about 65 hectares of developable land in Metro Vancouver under the banner of MST Development. That includes sites in Burnaby, the North Shore and Vancouver.

“There’s no other developer that owns as much land as the three nations here,” Squamish Nation Coun. Khelsilem told CBC.

The goal for the nations is to develop real estate and let the profits flow back to their communities.

Urban planner Gordon Price said the development potential is “unprecedented.”

“It could well be for the next several decades, First Nations will be the biggest real estate developers providing housing for Vancouver, and maybe a good part of the region,” he said.

The Early Edition
Vancouver’s mayor says city is ready for Squamish’s massive Senakw village site

Kennedy Stewart speaks with Stephen Quinn about how the city will handle the infrastructure needed to support an 11-building project. 13:10



September 17th, 2019, North Vancouver, BC — Today, the Squamish Nation is celebrating the BC Court of Appeal’s decision on the Provincial Environmental Assessment Certificate for the Trans Mountain Expansion (TMX) Project. The Court ruled in favour of the Squamish Nation, given that the BC Environmental Assessment Office relied on the fundamentally flawed National Energy Board Report as its own Environmental Assessment Report in issuing its Certificate.

The Courts have directed the Province to reconsider the Environmental Assessment decision “in light of the changes to the original report of the National Energy Board as set out in its reconsideration report.”

“The Federal Court of Appeal ruled that the original NEB report was so flawed that it doesn’t legally constitute a report, so it only makes sense that a Provincial Environmental Assessment Certificate issued based on that fatally flawed report would have to be revisited. Ideally, the BC Government would have come to that conclusion on its own, but we’re nonetheless pleased that the Court sided with the Squamish Nation in its decision to send this matter back to Cabinet,” said Khelsilem, Squamish Nation Councillor and Spokesperson.

The Provincial government must now heed the Court’s decision and start the review process over again before a Provincial Environmental Assessment Certificate can be issued. The Province of British Columbia needs to conduct a comprehensive environmental review of the TMX Project with the revised Environmental Assessment Act. MORE


First Nations renew court battle to stop Trudeau and Trans Mountain

Members of Tsleil-Waututh Nation gather around, with lawyer Merle Alexander, Tsleil-Waututh Chief Leah George-Wilson and Skeetchestn Indian Band Kukpi7 Ron Ignace at centre front row in Vancouver, B.C., on July 9, 2019. Photo by Stephanie Wood

First Nations have taken their first step to bring the federal government back to court over its approval of the Trans Mountain expansion project.

Six First Nations, including Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band, announced today they have officially petitioned the Federal Court of Appeal to review Prime Minister Justin Trudeau’s second approval of the pipeline.

Chief Leah George-Wilson of Tsleil-Waututh Nation said Canada was “not responsive” to concerns that came up during the consultation process, including those relating to the risks and costs of an oil spill, the impacts on southern resident killer whales and encroaching on Indigenous rights and title.

“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she said. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”

The nation will also argue that the government’s $4.5-billion purchase of the west coast pipeline system created a conflict of interest.

“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.

Under Canada’s Constitution, federal government has a legal duty to consult First Nations on decisions that could affect their rights or way of life. But the Trudeau government failed to do this the last time it tried to approve the pipeline in November 2016.

As National Observer reported in April 2018, government insiders say senior public servants privately ordered them to find a way to approve the project before Trudeau announced his decision, despite telling Indigenous leaders the government was still consulting them. MORE

Eight Hard Questions for the PM of Pipelines and Climate Emergency

He says Canadians can have it both ways. The facts say otherwise.

What Trudeau’s Liberals have done cannot be reconciled. Photo via Justin Trudeau Flickr.

As the planet slowly stews in its increasingly sultry juices, sled dogs are walking on water, but Justin Trudeau no longer is.

Polar bears are starving, the Arctic permafrost is melting, and glaciers are retreating faster than the PM on electoral reform and government transparency. And oh yes, as of yesterday, Canada is expanding the Trans Mountain Pipeline. That is called renovating the outhouse when indoor plumbing is the answer.

I picture Sheriff Jason Kenney’s posse, spurs ajingle and six guns flapping on their chaps, saddling up and galloping off to their war room at my imagery.

They do that now when they hear any “radical environmentalist” rearing his pesky head as opposed to those petrol Pollyannas of the energy sector who, as everyone knows, are full of philanthropy, mercenary science, and boffo marketing. The guys who make profits and tailings ponds.

But even those with their heads buried in bitumen have to resolve the latest development in what’s left of their social conscience. The Liberals and the rest of parliament have declared that Canada is experiencing a climate emergency. (There was one notable dissenter — those permanent campers in Jurassic Park on all matters touching the environment, the Conservative Party of Canada. Emergency, what emergency?)

Yet on the same day the “emergency” is declared by everybody but the fossil heads, the government says yes to the Trans Mountain Pipeline expansion. As Shakespeare observed in Macbeth “Such welcome and unwelcome things at once. ’Tis hard to reconcile.”

Eight questions for Justin Trudeau

So a few blunt questions for the PM, who continues to publicly peddle the dubious line that Canadians can have it both ways, while privately linking arms with the CEOs.

1. Since Canada is already on track to miss its emission targets set in Paris by 79 megatonnes (only Gambia and Morocco are on target), how do you justify greenlighting a project that will add 20 per cent to carbon emissions from the Alberta tar sands?

2. You once said that only communities could issue the social license for mega projects like this. So what do you say to the Squamish Nation, and the cities of Vancouver and Burnaby who have not granted that social license?

3. If expanding Trans Mountain is such an economic winner, why did Kinder Morgan happily unload this project on the Canadian people? Where were the rugged captains of private industry when this “jewel” went up for sale? MORE

Tell Premier Horgan: Use all the tools in your toolbox to stop Trans Mountain!

It’s outrageous.

Premier Horgan is in court, defending a Christy Clark-era decision and opposing the Squamish Nation’s legal challenge that seeks to stop the Trans Mountain pipeline and tankers.

This isn’t what they were elected to do. The BC government promised to use all the tools in its toolbox to stop the Trans Mountain pipeline and tankers project.

So why is Horgan now fighting to uphold the pipeline project’s approval – and against the Squamish Nation – in court?

When the project was first approved in 2016, then-Leader of the Opposition John Horgan asked of the Premier, “Why is Christy Clark hiding behind a flawed process created by Stephen Harper?” [1]

Now that he’s Premier, we’re forced to ask the same question of him.