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Exposing the Fatal Flaws of Bill C-69: Tar Sands Campaign Strikes Again

Op-ed Contributed by Michelle Stirling © 2019

The National Energy Board has been assessing critical infrastructure projects for the past 60 years.  But ever since Canada signed on to the Paris COP-21 Agreement of Dec. 2015, environmental groups (ENGOs) have demanded that NEB be ‘modernized’ to incorporate climate change considerations into approval processes. The Paris Agreement is not a legally binding agreement and countries are not required to meet their pledged targets.   Many of the demands of groups like Ecojustice include a focus on “decarbonization’ and renewable energy, and a demand that Canada meet Paris targets, even though the Paris agreement is not a legally binding document; to meet the targets all major industry in Canada would have to be shut down.  Many of those ENGOs involved are part of the “Tar Sands Campaign,” an orchestrated effort to block the distribution of oil sands product through legislative action, as described in this document. 

So, is Bill C-69 and NEB ‘modernization’ really about climate change and climate science?  Or is it part of a green trade war against Canada?

https://youtu.be/xzihYzxxWmQ

Transcript of video and supporting materials.

Have you heard of Bill C-69 – it’s what Premier Jason Kenney calls the “no-more pipelines” bill.

Why is that?  Well…it’s like this.  The National Energy Board is Canada’s review and approval organization for critical infrastructure – that means things like power lines for utilities, oil and gas pipelines, nuclear power plants – things that make our economy tick and things that require and extremely high level of technical due diligence in terms of safety.

Ecojustice and many other Tar Sands Campaign ENGOs went on a campaign to demand reform of the NEB, claiming it was outmoded and ineffective.

But whereas the NEB was highly regarded worldwide by investors and infrastructure developers as an organization with clear, fair rules and requirements for projects deemed to be in the national interest – the new Bill C-69 is a murky water where no one dares to swim.

I heard this analogy that makes things simple.

If you want to be a Professional Engineer – a University shows you the various courses you have to take, the ethical and code of conduct requirements for students, the marks you must achieve, the time frame for completion, and the cost of study.  If you successfully complete all the requirements within those parameters and pay the fee – then you will be granted an engineering degree.

That’s what the NEB used to be like for infrastructure developers.  A clear framework for completion – and fair evaluation. *

But Bill C-69 is murky – imagine the University example again.  You want to be a Professional Engineer, but the University won’t tell you  what courses you have to take and is free to add more at any time; people from other departments unrelated to engineering might get to evaluate your submissions; the university won’t tell you the time frame or the marks you have to achieve, and they won’t tell you what it will cost.  They might be able to stop you in the middle of study and send your work to someone else to look at.  Furthermore, the people who grant your certificate are not Professional Engineers and may have no expertise in any related field.

Would you go to that university?  And what kind of an engineer would you be? Would your structures be built to be safe and high performance, or …maybe pretty, but not functional?

Now, that’s a brief description of the problem with Bill C-69 – but there is an even bigger one that was brought up by Martha Hall Findley of Canada West Foundation – and that is the loss of jurisprudence if the NEB is abolished or moved out of the critical infrastructure process.

For the past 60 years, various projects under review by the NEB have faced court challenges for various reasons.  Sometimes they were technical, sometimes socio-economic, some might have been related to land use or treaty rights.  Whatever the case, there is a large body of legal decisions – case law – that directs present and future legal challenges.

By shelving the NEB and approving Bill C-69, all of that case-law becomes irrelevant – meaning all processes start from scratch in terms of legal challenges.  Martha Hall Findlay said there are holes big enough to drive a truck through in the Bill C-69 legislation – and said there would be legal challenges from every angle; meaning projects like pipelines, transmission lines, power plants – they would be hung up in court for decades.

That means no investor would be interested in tiptoeing through Canada’s murky waters of Bill C-69.

It strikes me as odd that Minister McKenna – a lawyer herself, and Ecojustice – a whole bevy of lawyers – wouldn’t have thought of this downside.

And what of the fact that the people doing the approvals would not be required to have expertise in that discipline.  Do you really want Minister McKenna approving nuclear power plants when she didn’t even know “What’s a COP?” prior to signing Canada on to the Paris Agreement?

“So when I took this job I immediately went to the climate negotiations. I actually didn’t know about the climate file. I had to figure out what a COP* was. What is this COP? Many people had been to more than one COP, 13, 14 COPs.  I got there, dug in and we were able to get the very ambitious climate agreement but then the rubber had to hit the road here….”  – Catherine McKenna, addressing the Calgary Chamber of Commerce, March 9, 2017 

(*COP- Conference of the Parties – int’l meeting on climate policy…going on for 22 years now.)”

Wouldn’t this wishy-washy legislation allow for subjective approvals of projects that might NOT be in the national interest? But might be of interest to certain well… cronies?

At the University of Calgary law forum on Bill C-69, I was shocked to hear panelist and lawyer Terri-Lee Oleniuk tell the audience that she has major institutional investors asking her firm about what to invest in, but thanks to Bill C-69 being in limbo, and thanks to its uncertainties, all major project are on hold. (Note: a fuller transcript of the U of Calgary Law Forum on Bill C-69 is offered in the below; the video only refers to the last couple of lines).

Well the issue is that there is no project list. It’s been 13 months with no project list.

So again, coming from my perspective where, you know I meet regularly with sovereign wealth funds and private equity, and they are looking to invest in a project here and perhaps it’s going to be developed in a year or two or the next three, and four years, and not having a sense of what regime that project may be subject to, um, is very challenging to investors. It’s extremely… I can’t stress that enough how challenging it is.  Investors like their numbers on a spread sheet. And it’s very difficult, I think, to try to capture the risks, how to mitigate risks when you don’t really know what regulatory regime will be might exist for your project.  I think is fundamentally the problem with it. And I’m not sure why it’s taken 13 months to come up with a project list, frankly, it’s not that difficult, I’m sure there’s lots of negotiations going on with the provinces,  …I think it would be nice to have A list… in order to understand the scope of what projects they are looking at, I mean, substitution is still going to be available as an option, and so, to the extent that, you know, things might fall under the new federal regime, provincial regime, no regime, in the case of projects here in Alberta. What I hear from clients in my office is the primary complaint is uncertainty, that is THE primary complaint, uncertainty, so having a list of projects, whether you agree with it or not, would at least take away some of that uncertainty.”

 

That’s the economy of Canada, people….in limbo. Thanks to the Tar Sands Campaign ENGOs and their grand plan for NEB modernization.

In truth, there were elements of the NEB that needed tweaking, but as Martha Hall Findley and Terri-Lee Oleniuk both have said – as have other commentators – keep the NEB, its 60 years of jurisprudence, wisdom and technical expertise – keep the NEB and just tweak it.

Don’t throw the baby out with the bath water.

Don’t push Canada off the economic cliff into crisis.

Clearly the Minister’s innocent and perhaps well-meaning signing on to Paris has serious implications for Canada as a nation, and as a global competitor.

This mess has its roots in the Tar Sands Campaign.  It’s not about climate change or climate science. It’s a ‘green’ trade war against Canada and time we stood up and stopped it.

 

 

Michelle Stirling is the Communications Manager for Friends of Science Society, a member of AAAS and the Canadian Association of Journalists.

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Note Ecojustice’ preferential wind and solar image on the cover of their submission for NEB reform. https://www.ecojustice.ca/wp-content/uploads/2017/03/Submission-to-NEB-Modernization-Panel-Final-.pdf

Prof. Michael J. Kelly advises that wind and solar cannot support basic society due to the limited Energy Return on Energy Invested. https://www.cambridge.org/core/journals/mrs-energy-and-sustainability/article/lessons-from-technology-development-for-energy-and-sustainability/2D40F35844FEFEC37FDC62499DDBD4DC/core-reader    Kelly further advises that rapid decarbonization will result in mass deaths in society. Would that be in Canada’s ‘national interest’? https://www.rbkc.gov.uk/pdf/Prof%20Mike%20Kelly%20-%20FENand%20ER.pdf

The global energy reality is two-fold – the world runs on oil, natural gas and coal – and Canada is a major competitor in those markets; renewables only provide a nominal percent of global energy, despite some 40 years of subsidies and preferential treatment.

https://blog.friendsofscience.org/2019/05/29/analyzing-the-future-the-tug-of-war-between-politics-and-economics/

Other commentary by Ecojustice:

https://www.ecojustice.ca/lets-get-it-right/

Ecojustice claim in their 2019 “Victories” report that they always represent their clients for free. But how do they get paid?  This report was filed in the Financial Post on August 12, 2019.

At the end of August 2018, the Federal Court of Appeal ruled in favour of a group of applicants seeking to stall Kinder Morgan Inc.’s Trans Mountain Pipeline project. What wasn’t publicly known at the time is that the application had been funded, at least partially, as part of the Tar Sands Campaign.

We know this now because Living Oceans Society, one of the applicants to the Federal Court of Appeal, reported to the Internal Revenue Service in U.S. tax returns that it spent at least US$63,547 on this litigation. This information did not become publicly available to me until 11 days after the Federal Court of Appeal had ruled.

The origin of the US$63,547 is not publicly reported, but Living Oceans spent that amount in 2016 on litigation to stop the Trans Mountain pipeline by intervening in its regulatory review and bringing judicial review proceedings.

“The Society worked with non-profit lawyers at Ecojustice to intervene in the regulatory review of the Kinder Morgan Trans Mountain pipeline and tanker project,” Living Oceans reported to the IRS.

Ecojustice is the entity that brought the application to the Federal Court of Appeal. Ecojustice is also funded to participate in the Tar Sands Campaign, and has been paid US$815,000 (2009-2017) via San Francisco-based Tides Foundation for its participation in the Tar Sands Campaign.

Living Oceans also reported to the IRS that it “instructed its lawyers to bring judicial review proceedings against both the recommendation report of the National Energy Board and the ultimate decision of the Federal Cabinet to approve the project.”

In other words, the application to the Federal Court of Appeal was funded as part of the Tar Sands Campaign. This is not to say that the funding influenced the judge’s ruling. Rather, the application to the court was funded as part of the Tar Sands Campaign to landlock Alberta oil.

In Judge Eleanor Dawson’s ruling that paralyzed the Trans Mountain project last August, she referred to the applicants as “not-for-profit organizations.” No mention was made that three of the applicants had received at least US$700,000 to stop the very project before her court.

Ecojustice claims NEB reviews have been ‘riddled with errors’ – that view is disputed by others.

https://business.financialpost.com/opinion/the-liberals-play-a-dangerous-game-by-going-along-with-the-eco-activists

https://business.financialpost.com/commodities/energy/former-neb-chair-says-politicians-should-stay-of-pipeline-reviews-as-energy-watchdog-comes-under-siege

https://business.financialpost.com/opinion/gaetan-caron-how-the-supreme-court-upheld-the-nebs-role-in-keeping-democracy-well-functioning

The tanker ban Bill C-48 was also funded by one of the Tar Sands Partners. See our report: “Manufacturing a Climate Crisis.”

(*Some environmentalists see this structure as being ‘rigged’ in favor of industry.  In fact, the process certainly allows for review and criticism and changes to submitted proposals as described in this report. http://blog.friendsofscience.org/wp-content/uploads/2017/09/National-Energy-Board-Proposed-Reforms-Report-June-1-2017.pdf However, investors putting up billions of dollars are right to look for reasonable certainty that a proposal could be approved, if legal requirements, socio-economic and technical parameters were met and were responsive to citizen input.  Investors do need a degree of certainty; that doesn’t imply automatic rubber stamping as Minister McKenna seemed to imply about proposed revisions to Bill C-69, rejected by her government.  Canada West Foundation explains the need for clarity: https://cwf.ca/news/news-releases/news-release-senate-c-69-amendments-mean-more-clarity-less-political-discretion/ )

1 Comment

  1. “Minister McKenna – a lawyer herself, and Ecojustice – a whole bevy of lawyers – wouldn’t have thought of this downside.”
    You can bet your sweet bippy that they thought it through very carefully and craftily. It suits their Marxist agenda to destroy every means of production.

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