A Tale of Two Parises: National Energy Board Hearing Processes, the Duty to Consult, and Climate Change in Canada

Robert St. Pierre

Before heading to Paris for this Month’s climate summit, PM Justin Trudeau was asked about National Energy Board (NEB) hearing processes after a meeting with the premiers in Ottawa last week. Specifically, he was asked what his plans were to increase consultation processes with First Nations – in his response he re-iterated that he and the premiers “…are looking forward to building a strong country that both protects our environment and builds economic opportunities”.

The question is important at this point in time because of ongoing criticism from First Nations people about federal governments consistently overlooking, or neglecting, the duty to consult. One such criticism comes from band councilor Myeengun Henry, representing the Chippewas of the Thames. He is a part of a group that hit the news earlier in the month for mounting a challenge to the Supreme Court, citing that the “consultation” undertaken by the National Energy Board (NEB) did not adequately fulfill the government’s constitutional duty to consult. This consultation was conducted with regards to the flow reversal of Enbridge’s pipeline 9, which, if approved, would ship unrefined heavy crude oil (bitumen) from Sarnia, ON to Montreal.

From 1976-1998, the pipeline transported light, refined crude oil in this direction. Since 1998, due to the price of foreign oil being cheaper, it has been transporting the same substance in the opposite direction. Enbridge’s proposal for line 9 now is to transport heavy crude oil (bitumen) from Alberta’s tar sands to refineries in Atlantic Canada. This proposal has raised concerns amongst many from the pipeline’s surrounding communities, because the pipe is 40 years old and was not initially designed to carry high density bitumen. A similarly vintage pipe began carrying bitumen in Michigan in 2010, which resulted in over 1 million gallons of oil spilt into the Kalamazoo River, 2010, which was the largest inland oil spill in U.S. history.

As for First Nations communities potentially impacted by such a flow reversal,  Myeengun Henry and the Chippewas of the Thames had their day in an Ontario court earlier in the year, testifying that they had not been consulted by Enbridge regarding the flow reversal. In that case, Enbridge lawyers claimed that the NEB hearings process that took place in October 2013 were the appropriate consultations; NEB lawyers present did not submit on the topic. Meanwhile, the Chippewas of the Thames had formally written to PM Stephen Harper requesting a consultation, without receiving a response until January of 2014 (3 months after the NEB hearing process); the response simply stated that the obligation would be fulfilled.

When it comes to the duty to consult for the NEB, the Crown, and the corporation (Enbridge), it seems to be a deflection game in which each actor points the finger elsewhere.

The duty to consult has been established in common law, wherein the Crown is obligated to consider actions that may impinge upon the affirmed Aboriginal and treaty rights, as given in section 35 of the Constitution Act, 1982.  The NEB’s main responsibilities, as given by the National Energy Board Act, are to monitor operation of interprovincial power lines; regulate oil and gas exploration in lands not regulated under federal/provincial accords; imports and exports of gas and oil; and monitor international projects with any associated tolls and tariffs. In other words, there is no mention of the need to consult communities or First Nations people.

It would seem that the conceptualization of the NEB was never to fulfill the federal government’s constitutional obligations – duties that undoubtedly must fall into the category of being “regulated under federal/provincial accords”. Furthermore, on the NEB’s informational link for Aboriginal People, the board states that they require “…companies to consult with potentially impacted Aboriginal groups early in the project planning and design phases, when it is easiest for the company to respond to concerns raised by Aboriginal groups”.

So what do the NEB hearing processes really accomplish then? Well, in the past few years, many have questioned the hearing processes of the NEB on other occasions. In 2014, the former head of BC Hydro Marc Eliessen labeled the hearings as farcical, and backed out of the process altogether. In that case, critiques arose out of the removal of cross-examination periods. Apparently, that particular hearing process did a lot more talking than it did actually listening to the public. Three weeks ago, Elizabeth May referred to recent hearing processes for Energy East and Trans Mountain Pipeline proposals as being “contaminated by fraud”. In the Trans Mountain Pipeline proposal, Kinder Morgan allegedly falsified evidence for the project they had submitted to the NEB. There is clearly a lot of work to be done for the new Liberal government in order to fully restore public trust in environmental and community consultation checks.

While Justin Trudeau was readying himself to go to Paris, France, in a different Paris (Ontario), a local man discovered what appeared to be a leaky valve of an Enbridge-owned pipeline near the Grand River. He alerted six First Nations Men’s Fire staff, who have since escalated the issue to Sun-Canadian, the firm responsible for transporting diesel oil in that particular pipeline. The company has yet to publicly comment on the problem.  Who knows how long it may have taken for the problem to be discovered had he not stumbled upon it himself? This minor incident serves to remind us that problems with pipeline infrastructure are only identifiable upon discovery – but what happens when they take a while to discover? The Kalamazoo spill in Michigan.

As a result of that spill, local air and water quality were seriously compromised, meaning that nearby communities were forced to evacuate their homes. Similarly, it is air and water quality that are major concerns for those engaged in meaningful discussions in Paris. Much of this discussion at the conference in France inevitably focuses on damages to the earth that crosses state boundaries, like greenhouse emissions, and rightly so. Nevertheless, it is imperative to not overlook environmental impacts that are localized in nature, rather than international. To serve the Canadians residing between Sarnia and Montreal, including the Chippewas of the Thames, this means fulfilling consultation duties. Based on recent accounts of NEB hearing processes, more effort may be required in these regards. Given that line 9 is buried underneath the Grand River, which supplies drinking water to about half the population of nearby cities of Kitchener-Waterloo, Cambridge, and Brantford, there is clearly a lot at stake.

The above two tales of Paris (from France and Canada) demonstrate that global action on climate change, one of the greatest problems facing everyone in the world, should be dovetailed by Canada doing its mightiest to prevent harm to the earth at home as well, because both Parises matter. A critical first step in these regards is abiding by the constitutional obligation of the crown to consult with Canada’s indigenous peoples and, in effect, balancing economic needs with serving the land and its interconnected beings.

Robert St. Pierre is a Master’s of Public Policy Candidate of 2017, having previously graduated with a B.A. in Global Studies from Wilfrid Laurier University in 2012. He is interested in social policy, foreign policy, and aboriginal affairs, as well as travel, sports, and gardening. In fact, he has embarked upon a life-long quest to produce the perfect zucchini and recently set a record for most pears consumed in one month from his friend’s pear tree in Kitchener-Waterloo, in September 2015.

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