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Why Harper's shot at PNCIMA also hit Enbridge in the foot

September 14, 2011

Late last week (Thursday, September 8th), the Canadian government, after working for almost a decade to develop a plan to manage BC’s North Coast, known as the Pacific North Coast Integrated Marine Area Plan (PNCIMA), suddenly announced that it is withdrawing from an agreement which would ensure adequate funding to complete the plan by December 2012.  Prime Minister Harper’s government apparently had concerns that PNCIMA (if completed), “could be used to rally opposition to Calgary-based Enbridge Inc.'s proposed $5.5 billion Northern Gateway pipeline….”, but ironically the government’s heavy-handed blocking of this process could give new legal arguments to the Coastal First Nations opposing the Enbridge Pipeline, heightening uncertainty for the Pipeline’s potential investors.

The Coastal First Nations and Enbridge

The First Nations that have lived on the North and Central Coast for time immemorial have been making themselves heard, asserting their rights over their traditional lands and waters. 

The most high profile recent example of this was the Great Bear Initiative, in which the Coastal First Nations negotiated new environmental and economic initiatives for the Great Bear Rainforest (North and Central Coast) Region.  The landmark agreement was supported by five forest companies, environmental organizations,  and, in 2006, the provincial government.   These negotiations, with funding from several major Foundations, and from the provincial and federal governments, led to the creation of the Coast Opportunities Fund, to “support sustainable economic development and conservation management in the Central Coast, North Coast and Haida Gwaii areas of coastal British Columbia.”

But the Coastal First Nations have been among the most vocal opponents of oil tanker traffic on BC’s North Coast, and the Enbridge Pipeline which would bring the oil for the tankers to the coast.  Recognizing that the pipeline would punch right through the heart of the Great Bear Rainforest, and that the tankers would pose an oil spill risk to each of their territories, the Coastal First Nations on March 23, 2010 declared:

As Nations of the Central and North Pacific Coast and Haida Gwaii, it is our custom to share our wealth and live in harmony with the broader human community.  However, we will not bear the risk to these lands and waters caused by the proposed Enbridge Northern Gateway pipeline and crude oil tanker traffic.  …

Therefore, in upholding our ancestral laws, rights and responsibilities, we declare that oil tankers carrying crude oil from the Alberta Tar Sands will not be allowed to transit our lands and waters. 

The Coastal First Nations Declaration poses significant risks for Enbridge.  As we wrote in our Legal Comment on Coastal First Nations Declaration:

A federal government decision to allow the Enbridge Northern Gateway Pipeline project and related tanker traffic, contrary to the Coastal First Nations declaration, would infringe on their constitutionally-protected Aboriginal Title and Rights and breach Canada’s international law obligations. The Coastal First Nations Declaration opens any company who facilitates the transportation of Tar Sands crude oil through Coastal First Nations territories to potential enforcement action grounded in these nations’ respective laws and customs. Furthermore, the large number of impacted nations, the strength of opposition to the project, and weaknesses in the Crown’s proposed review process create a volatile legal situation and a high probability of litigation by one or more First Nations that could delay or potentially derail the project.

Litigation by any of the Coastal First Nation against the Enbridge Pipeline could pose a serious problem for Enbridge and its Northern Gateway Project.  Because of First Nations title and rights that are protected by Canada’s constitution, the federal government has a duty to “act honourably” and to consult and accommodate First Nations who have a “credible but unproven claim” of rights that may be adversely affected by a government decision (such as approving the Enbridge Northern Gateway Pipeline project and related tanker traffic.)

As a result,  anything that the federal government does in relation to consultations with the Coastal First Nations about tanker traffic and the Enbridge Pipeline that might be considered “dishonourable” creates legal uncertainty and problems for Enbridge.  So was the decision to withdraw from the current PNCIMA funding arrangement “dishonourable?”

PNCIMA and the Coastal First Nations

In 1997 Canada enacted the Oceans Act, which required the federal government to develop a strategy to protect our oceans, which it did five years later, in 2002.  It also required the federal Minister of Fisheries and Oceans to collaborate with provincial governments and affected aboriginal organizations, coastal communities and other affected people to develop Integrated Management Plans for areas within Canada’s Oceans.

The government quickly identified 5 regions in which it would develop Integrated Management Plans, which were confirmed in its 2005 Ocean Action Strategy.  The Pacific North Coast region was the only region identified for BC’s Coast.  The Action Strategy explains:

Integrated Management Planning is at the heart of new, modern oceans governance and management. Integrated management is a comprehensive way of planning and managing human activities so that they do not conflict with one another and so that all factors are considered for the conservation and sustainable use of marine resources and shared use of oceans spaces. … The implementation of Integrated Management Planning for Phase I of the Oceans Action Plan is focused in five priority areas….

Despite the commitment to prioritize the Pacific North Coast, progress was initially slow.  However, in 2008, following up on the land-based protection achieved for the Central Coast through the Great Bear Initiative, the federal government signed a Memorandum of Understanding with the Coastal First Nations and other First Nations agreeing to work together on the development of the PNCIMA.  This agreement was applauded by environmental organizations.  The provincial government subsequently joined the process as well, appointing a representative to the PNCIMA Steering Committee. 

As a result of this memorandum, and in keeping with the collaborative approach contemplated by Canada’s Oceans Act, the PNCIMA Steering Committee and its planning process includes representatives of the Canadian and B.C. governments, as well as several First Nations organizations, and is co-chaired by federal government and Coastal First Nations.  A wide range of stakeholders, including one seat for the conservation sector, provide input and consensus based advice on an Integrated Oceans Advisory Committee, but do not determine the outcomes of the PNCIMA process. Enbridge has itself  participated on the Integrated Oceans Advisory Committee, along with representatives of the fish farming, commercial fishing, renewable energy, recreational fishing and tourism industries, and even sponsored an early workshop in the PNCIMA process.  

In short, PNCIMA is created by the federal government, managed jointly by the federal and provincial governments and First Nations, but with efforts being made to involve a wide range of stakeholders.  Because the PNCIMA is co-chaired by a federal government staff-member, and requires sign-off from the government, it was unlikely to have resulted in a complete ban on oil tanker traffic, although it might have placed restrictions on marine travel, or otherwise provided protection for the coast from shipping impacts.

However, progress was slow, in part due to the limits of federal funding available for the process.  Fisheries and Oceans Canada spent $6 million on the initiative between 2002 and 2010, but it was not sufficient to complete the plan.  In November 2010, the PNCIMA Steering Committee (which, keep in mind, is co-chaired by a federal government employee) announced that the Gordon and Betty Moore Foundation had agreed to provide up to $8.3 million of funding to allow the PNCIMA plan to be completed by December 2012.  These funds were to be used to: “enhance stakeholder engagement, support information gathering and build technical and administrative capacity for the PNCIMA initiative.” 

As PNCIMA explained:

In recognition of increasingly complex ocean management challenges, governments are looking to new and innovative models to achieve their objectives. Both federal and provincial governments are encouraging collaboration and partnering, and have seen success in these arrangements. One example in British Columbia is the charitable funding provided to the Coast Opportunity Funds in support of economic development and conservation initiatives on BC’s central coast. Charitable funding has also contributed to the success of other oceans planning initiatives such as the Massachusetts Oceans Partnership and California Marine Life Protection Act Initiative.

A series of FAQs on PNCIMA’s website explained, carefully, why the Moore Foundation’s funding was appropriate, and why it would not influence the outcome of the PNCIMA process.

And now, less than a year after accepting these funds, and a little more than a year before the PNCIMA plan was to have been completed, the federal government has decided to walk away from the agreement. 

The federal government apparently still intends to deliver a final integrated management plan for the Pacific North Coast by December 2012, but it is difficult to see how, absent a massive increase in federal government funding to complete the process, this could be accomplished.  The environmental groups involved in the process report their understanding that the resulting PNCIMA process will be dramatically scaled back, with far less detail and protection provided under the final plan:

… the Prime Minister’s decision to pull out of the funding agreement kills any opportunity to build a marine plan that conserves the ecosystem and builds the economy in PNCIMA. More specifically:

  • There will no longer be working groups, a marine technical analysis team, regional forums, capacity grants for stakeholders, workshops or technical and administrative support for the plan.
  • The new PNCIMA work plan will contain a high level [Ecosystem Based Management] framework that will regulate activities that are allowed to occur within PNCIMA, but this … plan will not contain a spatial plan or a network of [Marine Protected Areas]. The creation of this plan will rely upon one staff member within DFO and no other funds for stakeholder engagement. …
  • One of the most important aspects of the PNCIMA process was the integrated nature of the planning that would allow for the integration of uses, spatially and with regard to cumulative impacts and ecologically and biologically significant areas. This integration will not happen;  instead, there will be layers of planning happening separately at a regional (PNCIMA) and sub-regional (B.C. and First Nation) levels. There will be no funding to integrate these plans.

Until now, the government has been engaged in what appears to be a very thorough and honourable process to engage with the Coastal First Nations on how BC’s North Coast should be managed.  It was a process that could have credibly addressed many of the Coastal First Nations concerns about a host of marine-based issues, from fishing to marine transport, including addressing the risks associated with oil tanker traffic.  Instead of this consultative process, the federal government has unilaterally adopted a scaled back planning process, with limited budget, which will accomplish none of that.  The government did not consult or even give advance word to First Nations before it made its rash decision.

The PNCIMA was not, of course, exclusively focused on Enbridge’s proposed project and the resulting oil tanker traffic. The federal government would doubtless protest that the current environmental assessment of the Enbridge Pipelines (by the Joint Review Panel) will provide for adequate consultation.  However:

  • PNCIMA, unlike the Enbridge review panel, puts First Nations at the same table as other governments as decision-makers at a strategic level. As the Supreme Court of Canada stated in the leading decision of Haida Nation v. British Columbia (Minister of Forests), it is critical to consult with First Nations at the level of strategic planning for the use of natural resources where such decisions will have potentially serious impacts on Aboriginal Title and Rights.
  • The Enbridge-specific review panel doesn’t  provide nearly the same kind of funding for stakeholder engagement, information gathering and other capacity, and will not do the kind of forward-looking, integrated planning work that was at the heart of PNCIMA. It is not, and it is not designed or intended to be, a strategic-level planning process. First Nations are nowhere near being decision-makers in the federal process to review Enbridge.
  • As West Coast wrote in 2009, we do not think that the federal government’s consultation on Enbridge is consistent with its legal duties.

On the whole, it seems pretty clear that PNCIMA was the more useful, and more collaborative, consultation process for the future use of the coast, from the perspective of the Coastal First Nations. PNCIMA is about precisely the type of collaborative, strategic level planning that is supposed to be at the heart of government consultations with First Nations.  Less than a year after the federal government agreed to, and in fact defended, the infusion of significant new financial resources to move the process along, the decision by Prime Minister Harper’s government has completely upended the process. 

Comments on the risk to Enbridge

According to the Vancouver Sun the federal government has withdrawn from the funding arrangement precisely because of fears that the PNCIMA would impact the Enbridge Pipeline and resulting tanker traffic.  At a minimum, the PNCIMA was a rigorous process that the federal government could have argued helped to satisfy its duty to consult with the Coastal First Nations in respect to tanker traffic. 

If the federal government had concerns about accepting Foundation funding to move the PNCIMA process forward, it should have said so in 2010 when it agreed to accept this funding.  To flip-flop now, slightly more than a year before the process was supposed to wrap up, leaves the PNCIMA process without the funding that the government has acknowledged is required for a thorough planning process.  It is also a slap in the face for the Coastal First Nations, the BC government, environmental organizations and industry stakeholders who have worked on this process for years. 

Prime Minister Harper’s government may have believed that it was helping Enbridge and its Northern Gateway Pipelines by withdrawing from this funding agreement.  But the resulting uncertainty, and the appearance that the federal government has acted less than honourably towards the Coastal First Nations, may well cause Enbridge huge legal head-aches in the future.  

By Andrew Gage, Staff Lawyer

Photos courtesy of Andrew S. Wright / www.cold-coast.com