An overview of the Northern Gateway decision report

21 Jan An overview of the Northern Gateway decision report

An overview of the Northern Gateway decision report

The proposed Northern Gateway Project (the “Project”) consists of two pipelines and a marine terminal. The pipelines are anticipated to follow a 1 km wide route from Bruderheim in northern Alberta to Kitimat in northern B.C. covering over 1,170 km (see a map of the route here). The proposed route for the pipeline crosses over a small amount of private lands, over public lands and over lands claimed by various aboriginal groups. The marine terminal associated with the Project will be located in Kitimat, B.C. at the eastern end of the Douglas Channel. It is anticipated that the marine terminal will have two tanker berths and 19 storage tanks (for condensate and petroleum).

Over a period of several months, the National Energy Board (the “NEB”) conducted the hearing on the proposed Project. The hearing considered matters under the National Energy Board Act and the Canadian Environmental Assessment Act. Firstly, the NEB considered an application under the National Energy Board Act for a Certificate of Public Convenience and Necessity. Secondly, the NEB was appointed as a Joint Review Panel (the “JRP”) under the Canadian Environmental Assessment Act. As well, the Government of Canada indicated that it is relying upon the consultation efforts of the proponent and the JRP to discharge its duty to consult with Aboriginal groups.

In late December, the JRP released its decision on the Northern Gateway Project. The decision report has been released in two volumes entitled Connections (Volume 1) and Considerations (Volume 2). The JRP concluded that, on weighing the evidence, Canadians would be better off with the Project than without it. Hence, the JRP recommended that the Project be approved subject to 209 conditions (set out in Volume 2). The conditions address a range of matters through different stages of the project – some apply before construction, some during construction and some during operation of the Project.

The decision covered issues raised in relation to social and cultural impacts, economic impacts, safety concerns and environmental impacts associated with the Project. However, the JRP did not consider any issues related to trade policy, renewable energy or industrial strategy. Nor did the JRP consider issues related to increased greenhouse gas emissions or any other environmental and social issues associated with oil sands development.

The reason provided by the JRP for this latter exclusion was that it “did not consider that there was a sufficiently direct connection between the project and particular existing or proposed oil sands development or other oil production activities to warrant consideration of the effects of these activities”. This is an interesting conclusion considering that the pipelines and marine terminal are being built to transport the results of oil sands production.

Here are some key points in the decision:

• The JRP found that the Project will likely cause adverse – albeit not significant – environmental effects on a number of ecosystem components including rare plants, rare ecological communities, soils, old-growth forests, wetlands, surface and groundwater resources, fish habitat, and marine water and vegetation. As well, the JRP found that the project will likely cause adverse impacts on a variety of animal species (including many species at risk). Unfortunately, due to governmental delay in developing recovery strategies under the Species at Risk Act, recovery strategies for many species that are likely to be impacted by the Project were not available to the JRP (such as the North Pacific Humpback Whale population).[1]
• The JRP found that – even in light of Northern Gateway’s mitigation and scientific research commitments – the negative impacts on certain woodland caribou and grizzly bear populations were significant. The JRP concluded that the significant negative impacts could be justified in the circumstances because “[t]he potential adverse environmental outcomes are, in the Panel’s view, outweighed by the potential social and economic benefits described [in Chapter 2]” (volume 2, page 10).
• A contentious issue discussed in the decision report  is the behavior of dilbit in case of a marine spill (“dilbit” is short for diluted bitumen – given the viscosity of bitumen it must be diluted with condensate or synthetic crude oil prior to transport through a pipeline). Several intervenors were concerned that dilbit would, at least in part, sink in a marine environment making cleanup more difficult (a recent report issued by Environment Canada appears to provide support for this concern). The JRP acknowledged that there is uncertainty regarding the behavior of dilbit spilled in water  but concluded that dilbit is unlikely to sink within the timeframe in which initial on-water response might occur (volume 2, page 99). The JRP found that more research is required in order to inform detailed spill response planning and noted that the Northern Gateway  Pipelines Limited Partnership committed to conducting such research.
• With respect to a potential pipeline or tanker spill, the JRP concluded that a spill was unlikely and that environmental, social and economic  adverse effects  would be temporary. The JRP concluded that “environmental, societal, and economic burdens of a large oil spill would likely by reduced by effective spill response, financial compensation, and natural recovery processes within the environment, in weeks to months.” (volume 2, page 12). The JRP further found that “[s]ome components, such as individual species and habitats, would likely recover within weeks, months or years. In the case of large mammals, recovery times could extend to decades.” (volume 2, page 12). Large marine mammals that could be impacted by a spill include the North Pacific Humpback Whale population, a threatened species.

Ultimately, the final decision as to whether or not the Project will be allowed to proceed rests with the federal Cabinet. The federal Cabinet may either reject or accept the recommendations made by the JRP.  It is also possible for the federal Cabinet to send one or more of the recommended conditions back to the JRP for reconsideration.

It is not surprising – given the scale of the Project and the level of public engagement in the hearing – that the decision report has already been subject to legal challenge. It appears that at least four applications for judicial review have been filed in response to the JRP’s decision report (two by First Nations and two by environmental groups). The Victoria Environmental Law Centre has filed a judicial review application on behalf of BC Nature on the grounds that the JRP’s decision report contains several legal flaws – including a conclusion that adverse effects on caribou are justified and that there were no likely significant adverse environmental effects associated with  a large oil spill (see the media release).

A judicial review application has also been filed by Ecojustice on behalf of Forestethics Advocacy, Living Oceans Society and Raincoast Conservation Foundation (see the media release).  The judicial review application filed by Ecojustice argues that the JRP’s decision report contains several legal errors and is based on insufficient evidence. In its application, Ecojustice has raised concerns with the JRP’s:

• conclusion that dilbit is unlikely to sink in a marine environment,
• conclusion that the Project is unlikely to cause significant adverse effects without an assessment of the geohazards not being completed prior to construction,
• failure to consider the recovery strategy for the Humpback Whale,
• failure to identify adequate mitigation measures for caribou, and
• decision to not consider environmental effects associated with oilsands development even though it did consider the economic benefits of that development.

Both the Victoria Environmental Law Centre and Ecojustice have requested that the approval process be halted until the judicial review applications have been heard. Neither the Canadian Environmental Assessment Act nor the National Energy Board Act state that the approval process must be stopped until the judicial review applications have been heard; however, it is possible that the Federal Court of Appeal might impose such a restriction.