A brief history as to why Northern Gateway is (still) dead

ORIGINALLY PUBLISHED: 2013.

Whether you love Enbridge’s proposed Northern Gateway pipeline from Alberta’s oil sands to the British Columbia coast or hate it, it’s hard to argue that this pipeline will come to fruition in its current incarnation.

Between a disastrous public relations campaign (who Photoshop’s out entire islands from an animation depicting the proposed oil tanker route in the social media age?) and a complete misread of the BC public, Enbridge has managed to turn even small-c conservatives against the project.

Sure the public is beginning to warm to pipelines, but if you drill down the poll numbers, the tide is not turning in favor of Enbridge’s proposed route. Truly, this issue is two debates.

Should we export oil products? A majority of Canadians say yes. Should we select a pipeline route that is fraught with challenges? The majority of Canadians say no.

A Route Problem

The problem with Gateway is less the pipeline route itself and more the tanker traffic that it will produce.

Rather than selecting an established port, Gateway will terminate in Kitimat, BC, sending super-tankers through one of the most treacherous waterways on the Pacific coast – the Douglas Channel – and right through the last intact habitat of the white Kermode or spirit bear.

There is no question that Enbridge will do its utmost to prevent any possible spills, but even the best of intentions can fall victim to human error.

If the Exxon Valdez tanker-caused oil spill in Alaska or the BP oil rig explosion in the Gulf of Mexico taught us anything, it’s that unthinkable accidents happen and, when they do, the consequences can be both devastating and beyond repair.

Major shipping accidents have happened in recent years in the narrow passages surrounding the spirit bear’s habitat – the same exact waters Enbridge oil tankers will travel.

Given the spirit bear’s dependence on its marine ecosystem – salmon, the region’s lifeblood, especially – any oil spill will almost certainly wipe out the genetically unique subspecies.

The BC government and the federal government have spent hundreds of millions of dollars to protect this animal and the larger Great Bear Rainforest.

With an existing pipeline from Alberta to Vancouver and Prince Rupert, along with ongoing tanker traffic being routed through these ports to points overseas, there is a safe, economically viable alternative to building a new pipeline to the community of Kitimat.

As such, placing the bear and region in the crosshairs of risky tanker traffic is illogical and largely why the public is so offside with Enbridge’s planned route.

Why THIS Route?

So why did Enbridge go down this path in the first place?

One idea that has been floated is that this route is setting Enbridge up for the bait-and-switch.

Knowing there would be animosity toward this project no matter what, Enbridge began by proposing the most divisive pipeline route so that, at the last minute, they could select an alternate that would make the company appear reasonable and accommodating in the view of the public.

This is obviously unlikely for a host of reasons (money and time investment to date; regulatory challenges associated with a last minute switch; resulting project delays), but mostly because I refuse to believe that corporations like Enbridge are that Machiavellian.

The more likely scenario is liability or, more to the point, who is liable in the case of an earthquake.

Selecting a route to an established port would mean Enbridge would place their pipeline squarely at risk of seismic activity.

Though pipelines are one of the safest means of transporting raw bitumen and are highly advanced in preventing leaks due to damage caused by earthquakes, there is still always the risk.

And why would Enbridge assume that risk when, by terminating the pipeline in Kitimat, they can download the problem to the far less regulated shipping industry?

If this was the thought process of Enbridge, it was too cute by half.

Failing to Learn from (Modern) History

TransCanada’s Keystone XL pipeline from Alberta to the United States was postponed because of bi-partisan anger over the planned route through Nebraska’s Sand Hills aquifer.

The delay has put the project’s future in jeopardy and cost Canada economically, but it could have been avoided if the company had simply proposed to reroute the pipeline around the aquifer in the first place.

What would have amounted to a rounding error in a multi-billion dollar project was dismissed in a blatant cash grab. TransCanada, at least in the short term, has paid the price dearly.

For the same reasons, Northern Gateway has become a political lightening rod that has made BC’s business friendly government lukewarm to this pipeline proposal and even created friction within Prime Minister Stephen Harper’s BC caucus.

In trying to save a few dollars, Enbridge has written the book on how not to buy a social license.

But the lack of overwhelming political (outside of the federal cabinet) and public support for Northern Gateway is really aside from the point.

Gateway is dead due to First Nation opposition and the courts.

First Nations and the Courts

BC is one of the few jurisdictions where no treaties exist between First Nations and the Crown, meaning the province is the wild, wild west when it comes to who owns what.

As a result, according to the precedent the Supreme Court of Canada has set, the Crown has the duty to consult First Nations on all projects and must do so in good faith.

While it isn’t quite a veto, First Nations have such a significant say in all matters that affect their traditional territories that they have the ability to re-write the final chapter to any resource issue.

This is especially true when the Crown has failed to consult in good faith.

In what might be the most ill fated decision in the entire Northern Gateway approval process, the Harper government decided it would allow the National Energy Board’s Joint Review Panel to double as the Crown’s First Nation consultation process.

Yet the NEB’s JRP, being an independent review, can’t possibly meet the government’s duty to consult.

More importantly, the JRP is not equipped to fairly weigh First Nations rights and title when they are but one of many stakeholders in a somewhat flawed process with a limited mandate.

What does this mean?

The Real Fate of Northern Gateway

Every political leader and review process in the land can give Northern Gateway the green light, but you can bet the house on First Nations taking Enbridge and the federal government to court in a case that will almost certainly land at the doorstep of the Supreme Court.

Leaving aside the years – and millions – that will be spent in the courts and leaving aside a case that heavily favors First Nations, what will the political – and economic – landscape look like when this issue is finally resolved?

A new government in BC seems reasonable to assume and a new Prime Minister, if not a new federal government of a different political stripe, is equally likely.

Moreover, Keystone XL will likely (and finally) be under construction to US markets. KinderMorgan and their plan to twin their existing pipeline from the oil sands to Vancouver will likely be proceeding, opening up Asian markets for Canada’s oil. And what about plans to reverse Enbridge’s Line 9 pipeline to the east coast? A probable slam-dunk.

Will there still be the political and economic demand for Northern Gateway with a different cast of political characters pulling the levers of power and potentially three pipeline routes helping get oil to market?

Not in my opinion.

So whatever green lights are given to this pipeline, it will be far from the final word on Northern Gateway – a project that, in all likelihood, is (still) dead.

– Simon