Tzeporah Berman has been instrumental in delaying or stopping 21 oil projects. Her next target: the Trans Mountain pipeline.
Photo, Johann Wall.
Last December, environmental activist Tzeporah Berman joined thousands of activists, scientists, policy makers and industry reps in Katowice, Poland, for COP24, the 2018 United Nations Climate Change Conference. She was scheduled to present a comprehensive analysis of the increase in Canada’s oil and gas emissions. Berman has been to many such gatherings, but Katowice, located in the heart of Poland’s coal country, provided a particularly bitter lesson in the contradictory nature of climate change talks. “I would leave my hotel and walk through coal-choked streets, coughing, to get to the climate negotiations,” she says.
Once there, the irony only deepened: While Berman listened to the world’s experts on renewables talk breathlessly about price drops and leaps in technology, in the room next door, Canadian government representatives cozied up to execs from Suncor. The next day, the Intergovernmental Panel on Climate Change presented its grim Special Report on Global Warming of 1.5 C. “I’d never seen scientists like that before,” she says, “near tears, frantic and scared, saying it’s worse than we thought.”
Since she was 23, when she first helped coordinate logging protests in B.C.’s Clayoquot Sound, Berman’s mission has been to bring together political enemies (those experts and Suncor execs). In 1993, during what was dubbed “The War in the Woods,” she famously organized blockades that got her arrested and charged with 857 counts of criminal aiding and abetting (the charges were ultimately stayed). Her determination, along with testy negotiations between environmental groups, logging companies and First Nations, ultimately protected the majority of the Sound’s remaining rainforest.
In the decades that followed, Berman became known as one of the country’s most formidable environmentalists, with a reputation as a passionate but pragmatic deal maker who could nimbly balance the needs of industry, the desires of politicians and the health of the planet. MORE
Expectation that courts will continue to place an increasing emphasis on the meaningfulness of consultation
Nik MacMillan@nikarthur /unsplash
In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.
In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.
Background on the TMX Project and the FCA Decision
The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE
A tanker fills up at Kinder Morgan’s Westridge marine terminal. Photo by NOW FILES
Burnaby Mayor Mike Hurley has written to B.C. Premier John Horgan asking the province to create legislation allowing municipal governments to launch and join class-action lawsuits against fossil fuel companies for climate-related harms.
The letter says the city is seeking legislation similar to Bill 21 that was introduced in the Ontario legislature in 2018.
“The City of Burnaby has undertaken a series of measures to reduce carbon emissions and address climate change and its impact in areas within our control,” reads the letter. “Burnaby Council has also taken a strong position against the expansion of the Trans Mountain Pipeline because of its impact on global carbon emissions and climate change. However, the actions that are within our purview are only part of the solution.” MORE
National Energy Board to deliver its decision on reconsideration of marine effects of pipeline expansion that is meant to tap into new markets in Asia for Alberta oil
Even before the National Energy Board delivers its answer Friday on its reconsideration of the $9.3-billion Trans Mountain Pipeline expansion, opponents say there is likely to be more court challenges of any decision.
Last fall, several First Nations, including the Tsleil-Waututh and Squamish, as well as environmentalists and municipal leaders, said the expedited re-examination of marine traffic effects of the project, including on killer whales, was inadequate and could create grounds for another court challenge.
The Trans Mountain marine terminal in Burnaby.
Among concerns was that the review’s 155-day timeline was too short and its scope was not broad enough, including that it was restricted to a 12-nautical mile strip along the coastline.
Eugene Kung, a staff lawyer with West Coast Environmental Law who has worked with First Nations in the past on court challenges of Trans Mountain, said Thursday the feeling is that the flaws of the review process have not been addressed. MORE
Grand Chief Stewart Phillip shown Oct. 23, 2018. Photo by Michael Ruffolo
Indigenous leaders and environmental groups vowed the Trans Mountain pipeline would never be built after the National Energy Board issued a second go-ahead to the federal government Friday.
Grand Chief Stewart Phillip, president of the Union of British Columbia Indian Chiefs, said it’s “ludicrous” that economic interests are considered more important than killer whales.
‘In this country, jobs are more important than justice.’ – Grand Chief Stewart Phillip @UBCIC #TransMountain #pipeline #NEB #CdnPoli
“Indigenous people are not going to stand idly by and watch the destruction of the sacred killer whale population along the coast of B.C.,” Chief Philip vowed. “The thought of killer whales disappearing … is absolutely unthinkable.” MORE
Canadian taxpayers will be on the hook for another $2-billion fossil fuel subsidy if the National Energy Board accepts the latest request from the federal Crown corporation that now operates the existing Trans Mountain pipeline, economist Robyn Allan reports in a National Observer exposé.
“If the NEB approves the toll application Trans Mountain has filed with it, it will shift the burden for the roughly $3 billion Ottawa paid to buy the regulated assets onto Canadians, rather than into tolls charged to shippers where the recovery of these costs belongs,” Allan writes. She discovered that “unacceptable burden” after reviewing Trans Mountain’s January 4 application for toll rates between 2019 and 2021.
“Pipeline companies make money by charging tolls to fossil fuel companies that ship oil and gas on their pipelines,” Allan explains. “Trans Mountain entered into private discussions with its shippers last fall to determine the tolls that would be charged from 2019 to 2021 since its most recent three-year settlement expired December 31, 2018. The outcome of those discussions resulted in favourable terms for the oil industry borne on the backs of hard-working Canadians.” MORE
Finance Minister Bill Morneau speaks to reporters in Ottawa about his new budget on Feb. 27, 2018. File photo by Alex Tétreault
Trans Mountain is on track to deliver Canadian oil producers a $2-billion taxpayer-funded toll subsidy for capacity on its existing pipeline and has asked the federal pipeline regulator, the National Energy Board (NEB) for permission.
If the NEB approves the toll application Trans Mountain has filed with it, it will shift the burden for the roughly $3 billion Ottawa paid to buy the regulated assets onto Canadians, rather than into tolls charged to shippers where the recovery of these costs belongs.
The federal government has a duty to make sure Canadian taxpayers are getting a fair deal.
Pipeline companies make money by charging tolls to fossil fuel companies that ship oil and gas on their pipelines. Trans Mountain entered into private discussions with its shippers last fall to determine the tolls that would be charged from 2019 to 2021 since its most recent three-year settlement expired December 31, 2018. The outcome of those discussions resulted in favourable terms for the oil industry borne on the backs of hard-working Canadians.
This unacceptable burden becomes apparent after combing through Trans Mountain’s Incentive Toll Settlement application for 2019 to 2021, filed Jan. 4 with the NEB. Trans Mountain requires NEB approval for the rates it charges shippers for capacity on its existing pipeline, which has been operating since 1953, because it’s an interprovincial facility. MORE
Retired lawyer David Gooderham among his files on climate change at home in Vancouver, B.C. on Jan. 25, 2019. Photo by Michael Ruffolo
Retired lawyer David Gooderham, 73, may soon cap a distinguished career in law with a 28-day jail sentence for contempt of court for joining protesters who have gathered to block work on the Trans Mountain pipeline.
But he says it’s worth the risk if it gives him a chance to trigger the first-ever court hearing in Canada on the validity of the science of climate change and the implications of federal pipeline policy.
“Climate change and climate politics have brought us to the point where a defense of necessity is relevant and justified.” – David Gooderham – story by @RLittlemore #TransMountain #bcpoli #cdnpoli #TMX #climatechange #oilsands #pipelines #protests
Gooderham was arrested Aug. 20, 2018 and accused of violating an injunction by blocking access to a Trans Mountain work site in Burnaby, B.C. In interviews with National Observer and in materials presented to the court Dec. 3-4, Gooderham admitted that he sat in the path of workers who were trying to get to the pipeline. But he said he did so expressly for the purpose of trying to present the court with a “defence of necessity.” The defence is allowed in instances of “imminent peril” when, in the words of a 1984 ruling by the Supreme Court of Canada (Perka v. The Queen), an offence can be “justified by the pursuit of some greater good.” MORE
Morneau may not have been fleeced, but certainly paid at the high end of the valuation scale, apparently assuming that everything would proceed smoothly
Finance Minister Bill Morneau speaks with reporters about the Parliamentary Budget Officer’s report on the Trans Mountain pipeline outside the House of Commons Thursday.
The sticker price Kinder Morgan put on the Trans Mountain pipeline when it entered negotiations with the federal government last year was $6.5 billion. Hence, finance minister Bill Morneau and his team thought they’d scored a bargain when they sealed the deal at $4.4 billion.
But it looks increasingly like he may bought a cat in a sack.
In all probability, the pipeline will take longer to build than anticipated; the construction costs will be greater; and the risks associated with the project mean the discount rate will be higher.
If any of those variables moves in the wrong direction, the value of the pipeline falls off a cliff. For example, PBO estimates that it is not worth the government proceeding with construction if the project is delayed a further two years and construction costs rise just 10 per cent.
What are the chances of that? As one veteran of the government infrastructure projects commented: “I’ve never seen one come in ahead of schedule or below budget.” MORE
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?” 
Now that he’s Premier, we’re forced to ask the same question of him.
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