Trudeau’s directions to Cabinet Ministers may spell “No” to the Northern Gateway Pipeline Project

In June 2014, Justin Trudeau stated that, if made Prime Minister, he would not allow the Enbridge Northern Gateway Pipeline Project to proceed, given concerns about the environmental review process, the effect of the project on jobs in BC, and given the unheeded concerns of First Nations and the public.

Northern Gateway would require hundreds of super-tankers each year to traverse the north coast of British Columbia, carrying their cargo of diluted bitumen through the pristine waters of numerous coastal First Nations.

An environmental review process preceded the approval of the Project. The Project was approved despite a lack of certainty about how diluted bitumen would behave if spilled into the waters of the North Coast, and was allowed without completion of required spill response planning. The last stages of the review process involved a consultation phase between Canada and affected First Nations. Many of the First Nations saw this consultation as a failure. It did not address core concerns about the Project, its effects and its imposition in the core of their territories and sensitive ecosystems.

Numerous groups, including First Nations, environmental organizations, community groups and individuals, have resisted the Project’s approval. Indigenous peoples have opposed the Project being allowed despite their concerns not being addressed, and being imposed contrary to their objections. Seven First Nations including Gitxaala Nation, two environmental NGO groups and Unifor recently completed judicial review hearings of the approvals of the Project. Judgment from the Federal Court of Appeal is under reserve.

While the new government had indicated it did not support the Project, the question remained, how could a project that had already been approved by Canada be halted by Canada? The answer may have been foreshadowed in September 2015, when Trudeau promised on the campaign trail that he would make a tanker moratorium on the north coast official.

Ministerial Mandate Letters Provide Direction for the Decision to Halt Northern Gateway

As described in our recent post, which can be accessed here, on November 13, 2015, Prime Minister Justin Trudeau wrote (and for the first time released) the mandate letters issued to instruct the newly-appointed Cabinet Ministers on the government’s priorities for their portfolios and to provide them with a statement of their overarching goals.

For those following the Northern Gateway project, one direction from the PM stands out: that the Ministers of Fisheries and Transportation are to formalize a moratorium on crude oil tanker traffic on British Columbia’s North Coast.

At this point, the federal approvals required for Northern Gateway have been issued. If the Court does not quash those approvals, and if Canada does not take any steps to intervene, from a federal perspective the Project is set to go ahead with only post-approval obligations and reporting to be completed. No further decisions are required from Canada for diluted bitumen from the Project to be shipped along the north coast of BC to Asian markets.

With the mandates issued last week it appears that the government could halt the Project by imposing a tanker moratorium. The announced ban on tanker traffic carrying crude oil on the north coast represents an opportunity for the government to make it impossible for all practical purposes for the Northern Gateway project to operate.

Trudeau has asked the Minister of Transportation to “formalize” the ban. This appears to reference a prior non-binding motion passed in 2010 on the urging of then opposition MP Nathan Cullen (in a minority conservative parliament). The earlier moratorium had been ignored by the Conservative government during the Joint Review Panel hearings for the Northern Gateway project. Gitxaała Nation argued the ban should be given effect in making the decision on whether to recommend the Project’s approval. Canada denied its existence and the ban was ignored by the Joint Review Panel.

In order to formalize and make effective the moratorium, Canada must enshrine it in legislation. This would require any future governments to go through the legislative (not just executive) process to reverse the change, resulting in greater transparency and accountability and requiring the will of parliament as a whole.

The government, in crafting legislation to formalize the moratorium, could also consider legislating that the approvals themselves be quashed and could consider amending the existing legislation (National Energy Board Act and Canadian Environmental Assessment Act, 2012) to permit the cancellation of the approvals by Order in Council.

From the perspective of affected First Nations and concerned Environmental Groups it is time for the federal government to take decisive action on this issue. The public interest in environmental protection and our collective interest in reconciliation demand it.