Posted by: adminjs at 1:00 am on September 6th, 2012
Is a made-in-B.C. review the best option? Environmental pipeline review would restore province's legal powers
By Murray Rankin, Vancouver Sun
September 6, 2012 3:02 AM
Last week NDP leader Adrian Dix announced his commitment to a "made in B.C." environmental review of the proposed Enbridge Northern Gateway Pipeline and that decision was criticized in a recent Sun editorial. As an adviser to Mr. Dix on this issue, I wish to explain the legal considerations behind this decision.
In 2010, the BC Liberals signed an "Equivalency Agreement" with Ottawa which said, in effect, that an environmental assessment of the Enbridge pipeline and tanker proposal carried out by the Harper government's Joint Review Panel would constitute a B.C. assessment as well.
(It is important to note that the word "Joint" in the term "Joint Review Panel" does not refer to a joint review con-ducted by Canada and B.C. It refers, instead, to a joint review by two federal agencies, the National Energy Board and the Canadian Environmental Assessment Agency.)
Not many people paid attention to the agreement at the time. But it has profound implications for B.C.'s ability to control its own destiny when it comes to major energy projects like the Enbridge pipeline and tanker proposal, which will profoundly affect our economy and our environment. For example, the long-standing moratorium on oil tanker traffic in the north coast is now at stake.
The Equivalency Agreement means that the provincial Liberal government has given up any say in key areas of B.C. jurisdiction, such as air and water quality, fish and wildlife, forests, Crown lands, and lakes, rivers and streams.
In legal terms, Enbridge Northern Gateway now does not need to undergo any assessment under B.C. laws at all: the Liberals agreed to accept the federal process as being "equivalent."
This is in no way a "joint review" like others in the past where both Ottawa and Victoria appointed members to panels: in the Enbridge case, the three panel members have no connection with B.C. at all.
With recent changes in federal law made by the Conservatives, the agreement gives Prime Minister Harper and his cabinet ultimate control of the Enbridge decision. It puts B.C. on the sidelines, despite the fact that critical B.C. interests are at stake.
The B.C. government fled to the sidelines in order to avoid taking a position on the tankers and the pipeline, abandoning its responsibilities to defend provincial interests. While federal-provincial collaboration is generally to be encouraged, it is unreasonable to expect Prime Minister Harper to represent B.C.'s interests. That is the job of the B.C. government: it has abandoned that role by signing the Equivalency Agreement.
As Adrian Dix stated, "we have a federal process making a critical decision that's essential to British Columbia that includes no British Columbians on the panel, that has no evidence from the Province of British Columbia, and where British Columbia has abdicated its regulatory responsibility."
That reality is at the heart of the decision made by Mr. Dix and his caucus to terminate the Equivalency Agreement and to commit to a "made in B.C." process to re-establish B.C.'s powers. A number of objections have been raised to this move and I want to address these, as they simply do not hold constitutional water.
One objection is that since Ottawa has primary jurisdiction over interprovincial pipe-lines, this is entirely a federal issue. If that were the case there would have been no need for an Equivalency Agreement in the first place. The very fact that B.C. signed the agreement demonstrates that it had certain constitutional powers that were given up in favour of a purely federal process.
A key objection within the Sun's editorial is that the pro-cess is a waste because Adrian Dix is opposed to the Enbridge proposal. Any provincial government must follow all requirements for procedural fairness and the principles of natural justice in that process. This is no different than the current federal situation: Mr. Harper has declared his sup-port for Enbridge, yet there is a federal review underway. In the end, both in Ottawa and Victoria cabinets will make final decisions based on the recommendations from the reviews.
Another objection - one that has been offered by Premier Clark and other Liberals - is that B.C. could stop the Northern Gateway Pipeline if it is approved by Ottawa, merely by withholding the necessary provincial permits. This approach is dubious at best. The courts could not be expected to uphold such actions by a government that gave up its jurisdiction through this agreement, only to use indirect means to unilaterally take it back.
A final objection is that a B.C. process would be a costly duplication of Ottawa's process. The fact is, however, that this action would never have been necessary had the B.C. government not agreed to such a one-sided agreement in the first place. True "joint reviews" have been successfully undertaken by provincial and federal governments, including in B.C. The current Enbridge "Joint Review Panel" is a far cry from these harmonized processes.
The legitimate goal of harmonization is one that Adrian Dix and the NDP support. The so-called harmonization for the Enbridge proposal is simply an abdication of B.C.'s interests in critical areas of provincial jurisdiction.
Bluntly put, the Liberals gave up B.C.'s rights in a way that made it difficult to take them back. But taking them back is the right thing to do.
The B.C. Liberal government signed the Equivalency Agreement. They failed to provide any evidence on behalf of B.C. to the federal review. They have done everything in their power to avoid taking a position on the Enbridge pipeline and tankers. And they knowingly put Mr. Harper in the driver's seat to decide on a project with very significant risks to B.C.'s economy and environment and to First Nations' rights and interests.
Given these actions by the B.C. government, the only responsible way that B.C. can now reassert control of our own economic and environmental destiny is to exit the Equivalency Agreement and conduct our own "made in B.C." review of the Enbridge pipeline proposal. That is what Mr. Dix has committed to do and in my opinion, this action is necessary to enable B.C. to protect vital B.C. interests.
Murray Rankin is a practicing lawyer and a former law professor of public law and environmental law. He is acting as a volunteer adviser to BC NDP leader Adrian Dix on legal issues relating to the proposed Northern Gateway Pipeline.