Controversies over TransCanada’s proposed Canada-US Keystone XL pipeline, Enbridge’s Alberta to BC Northern Gateway project and its proposed reversal of a section of its Quebec to Ontario Line 9 pipeline have stimulated a new national debate over energy.
This debate, tackled by panellists at a February seminar at York, raises questions about the regulatory independence of the National Energy Board, environmental justice and the meaning of the “duty of consult” in the context of indigenous resistance. “From Northern Gateway to Line 9: The New Law and Politics of Energy Pipelines in Canada” was jointly organized by the JD/Master in Environmental Studies and the Sustainable Energy Initiative (SEI).
Osgoode Hall Law School Dean Lorne Sossin, Professor Dayna Nadine Scott of Osgoode and the Faculty of Environmental Studies (FES), FES Professor and co-chair of the SEI seminar series Mark Winfield, and FES Dean and chair of the SEI seminar series Noël Sturgeon, discussed the legal, policy and political perspectives of the issues at a February seminar.
Sturgeon provided her perspective as a citizen of both Canada and the United States, and outlined the pressures facing the Obama administration over pipeline approvals. She believes Obama will approve the proposed pipeline and “use it to try and make deals around climate change to mitigate the effects of approving the pipeline,” highlighting the two major arguments in support of this decision – energy dependence for the states and the production of jobs.
Dayna Nadine Scott
She speculated that those who will benefit most, including many senators, oil and gas refineries in Oklahoma and Texas and the AFL-CIO, the umbrella federation for US unions, will play a strong influencing factor in the decision-making process of the proposal and hold a number of “deal” cards. “The AFL-CIO union in the US really came out for Obama in the past election and he owes them something for their support,” says Sturgeon. If the pipeline is approved, she said, Obama will “try to influence Canada to have the present government to come up with an actual climate change reduction policy.”
Winfield focused his comments on the Canadian domestic policy conversation. Energy and environmental policy historically have been on parallel, but separate conflicting paths with two conversations happening almost in isolation from each other, he said.
He pointed to the Kyoto protocol as an example, and the change to the negotiating position that took place while the department of finance was re-writing its rules “to effectively extend tax expenditures in support of the oil sands, which is the most carbon-intensive form of fossil fuel development imaginable.” The current context, he said, is “a very definite disengage by the federal government from that theme and a shift in policy leadership to the sub-national level.”
Despite the common belief that Canada has a natural energy strategy or policy, it doesn’t – not since the politically fatal natural energy program. “We have in fact had a very clear and very consistent policy direction from [Brian] Mulroney, [Jean] Chrétien, [Paul] Martin….what the Harper government is doing is like putting these traditional themes on steroids with some important departures from traditional paths.”
He also highlighted a shift in the US market towards energy self-sufficiency and the need for Canada to find new markets, stating that “the complications Alberta has run into will require a cooperation of other provinces if it’s going to get the oil out.” The question is now shifting towards “what’s in it for us?”
The federal government, instead of fulfilling the traditional role of mediating regional conflicts over the patterns of availability and consumption of energy resources, has effectively taken sides, leading to political fragility with practical consequences. “The consensus is that the northern gateway is a dead duck – highly unlikely given the opposition of the BC government.”
Scott focused on the “health and social effects of pollution associated with the refining of dirty oil on the communities that live downstream of the tar sands…those at the end of the pipeline.” She referenced Benedict Anderson’s influential idea of imagined communities and recent arguments by eco-critic Rob Nixon that “the idea of the modern nation state is actually sustained by producing unimagined communities.”
To demonstrate how the national energy vision requires the unimagining of communities downstream, Scott pointed to the regulatory void in Canada. “There are no institutions in place that could allow us collectively to deliberate on the costs and benefits associated with these large infrastructure projects and their distributed effects,” she said. “Though some will benefit from the development, many others will suffer devastating losses, including increased air pollution with risks of elevated rates of cancers, asthma and respiratory illness, and reproductive disorders”.
Last July, the Canadian Environmental Assessment Act was repealed and replaced with a new one applicable to a narrower class of projects. This new act “seriously curtails public participation rights in those reviews and endows the minister with a new power to shut down EA deemed to be taking too long,” she said. “Most importantly, the new changes to the federal environmental assessment regime seem to be designed to limit the kind of public participation in the situation in which participants seek to bring in upstream or downstream impacts of a pipeline development.”
Sossin acknowledged the need for technical knowledge of the assessment process and social knowledge of communities – the “people process”. “Once you create an impartial, independent arms-length body, agency is not open to government to then openly to seek to undermine the result.” To do so “is to undermine the rule of law and the integrity of the process, which has been created precisely to create space for that marriage-based review.”