Analysis: Canada May Seek To Silence Some Foes Of New Pipeline
Author: Jeffrey Jones
Enbridge Inc. CEO Patrick Daniel speaks during their annual general meeting for shareholders in Toronto, May 9, 2012.
Photo: Mark Blinch
Some opponents of the proposed C$5.5 billion ($5.5 billion) Northern Gateway oil pipeline to Canada's Pacific Coast may not get a chance to be heard as scheduled by the regulatory panel looking at the plan because of federal government moves to streamline the country's environmental review process.
As part a series of changes to environmental reviews that are packed into a sweeping budget bill, the pro-development Conservative government seeks to restrict who can appear before regulatory panels to those deemed directly affected by the proposals and those with relevant expertise.
The new rules come after more than 4,000 people registered to comment at hearings into Enbridge Inc's controversial Northern Gateway pipeline. The project, which would move crude from the Alberta oil sands to the Pacific Coast for shipment to lucrative markets in Asia, is opposed by environmentalists and by many aboriginal groups along the mountainous route in British Columbia.
Partly due to the large number of people wanting to have their say, the regulators said in late 2011 they were extending the process by a year to late 2013. It started in January.
The "directly affected" provision would not force the three-member panel to strike any evidence already presented, but it would give it "additional flexibility to manage the remainder of the review process within timelines that will be established following passage of the bill," according to a government source.
The "new tool" is aimed at allowing regulatory panels to guard against having their proceedings used "as a platform for delay and protest," the source said.
The government says Canadian oil's lack of access to global markets leaves the economy captive to deep oil price discounts. It has accused "radicals" of seeking to clog up the proceedings in attempts to force delays in building the pipeline.
Natural Resources Minister Joe Oliver said after the March announcement of the budget measures that the regulatory changes will apply to Northern Gateway.
Preventing registered interveners from, say, cross-examining Enbridge when that part of the hearing begins in the autumn is unlikely as it would fuel a flurry of court actions, said Barry Robinson, lawyer for EcoJustice, which represents environmental groups in court cases.
A bigger question relates to thousands who have signed up to give 10-minute oral presentations.
Almost 175 had appeared by this week, according to the National Energy Board. Another 64 registered interveners, many of them from aboriginal communities, and 383 witnesses on their behalf, have given evidence in locales in British Columbia and Alberta.
If each of those wanting to comment has to be vetted before presenting, it would only add another layer of proceedings, stretching the time even more, Robinson said.
"I have somewhat facetiously said, you can give them 10 minutes to hear what they have to say, or we can have a one-hour hearing to determine whether they are directly affected," he said.
NEB spokeswoman Kristen Higgins said she could not comment on how the new rules might apply to the Northern Gateway proceedings until the legislation is passed by parliament.
Enbridge Chief Executive Pat Daniel said on Wednesday he doesn't foresee a major departure.
"I'm not an expert on exactly who can and cannot participate, but I wouldn't expect that any rules of engagement would change from the start of the process through," he said.
ALBERTA COULD BE GUIDE
The legislation includes a host of other measures aimed to cutting environmental red tape, including hard-and-fast time limits on reviews and allowing provincial authorities to hear some applications if they have the resources and expertise.
Green groups have blasted the changes, saying they represent a gutting of environmental law, while government officials have said they will only remove duplication and unnecessary delays, not imperil lands and waterways.
Alberta regulators already restrict hearings to those deemed directly affected or having relevant expertise, and that has led to some court challenges. The Alberta rules could be a guide, experts said.
"That's definitely excluded a lot of expertise from environmental organizations, so this looks like an attempt to mimic that model in Alberta," said Nikki Skuce, energy campaigner for ForestEthics Advocacy, which opposes Northern Gateway, partly on its assertion that the project would foster more oil sands development and increase carbon emissions.
George Hoberg, a University of British Columbia professor who specializes in environmental and natural resource policy, said U.S. green groups have found ways around similar restrictions, including finding local residents, or even municipal councils and mayors, who share their views on projects and agree to participate on their behalf.
Still, such moves do not address the larger issues of limiting opinions on important projects such as Northern Gateway, Hoberg said.
"I'm not suggesting that I actually think it's good policy. I think that the direct impact test is far too narrow and a much broader public interest test is very valuable," he said.
(Editing by Peter Galloway)