After careful consideration, we've found that Bill C-48 comes up short in striking a balance between environmental and economic interests.
Summary
One of the most difficult tasks facing any Canadian government in recent years (and for years to come) is striking the right balance between the vast benefits Canadians derive from their natural resource industries and protecting our environment.
While the beautiful and pristine north coast of British Columbia is undeniably a natural wonder deserving of protection, our review of the approach of Bill C-48 is that it is akin to using a sledgehammer to kill a fly. By refusing to allow for the prospect of any “oil” to be loaded or transported from a Canadian port within the exclusion zone, the Government of Canada is significantly, permanently limiting the possible routes for the export of Alberta hydrocarbons to new markets. The bill also appears to limit future liquid fuel export potential from sources such as shale and LNG - resources of vital interest to British Columbia.
At the same time, while a number of Indigenous communities on the North Coast have indicated strong support for a tanker moratorium, several others, clustered in the area north of Prince Rupert, have indicated that Bill C-48 would significantly limit their economic opportunities. This group includes the Lax Kw'alaams and the Nisga’a: the latter being one of the only First Nations with its own self-government treaty that not only grants sovereign decision-making over their own economic territory but also provides for a robust environmental assessment framework as well.
As many leaders from indigenous communities across the country have made clear, reconciliation without economic reconciliation and the right to economic self-determination is meaningless lip service.
This makes Bill C-48 a failure in terms of First Nations reconciliation.
The Trudeau government has prided itself on “evidence-based decision-making”: in other words, ensuring that government decisions are based on the best available science and data.
Allowing identical vessels with identical cargoes to pass through southern BC waters, the Atlantic Coast, the Gulf of St. Lawrence, the St. Lawrence River and, to date, the Arctic Ocean, the Government of Canada is making clear that there is no inherent risk associated with the transportation of “oil” by boat in Canadian waters and that this moratorium is about political expediency, not science.
Moreover, representations from the shipping community have made clear that not only do Canadian shippers maintain an impeccable safety record: new, world-class technologies could be deployed on the North Coast that would reduce the risk of spills even further.
As a result, Bill C-48 is also clearly a failure in advancing evidence-based decision-making.
Resource Works believes that Bill C-48’s approach is wrong, unnecessarily broad and fails to strike any reasonable balance for those living in northwestern British Columbia.
If the Government is not prepared to toss out the bill in its entirely, Resource Works has a number of recommendations on how it can be improved through amendments.
Background
Since the 1970s, at least a partial ban on oil tanker traffic through the most treacherous Pacific waters approaching the BC North Coast. Starting in 1988, a voluntary ban (implemented by the shopping industry) has been in effect covering the areas of the Dixon Entrance, Hecate Strait and the area surrounding Haida Gwaii as well as the fjords and waterways leading deeper into the province.
The great disaster scenario is, of course, another Exxon-Valdez incident: the disastrous crude oil carrier that ran aground in Prince William Sound, Alaska 30 years ago this month. As one of the most significant environmental disasters in the world, it looms large in the minds of all those opposed to the export of hydrocarbons from Canada’s west coast. Ironically, the Exxon-Valdez disaster leads to a whole range of measures - including the voluntary tanker ban - that have made shipping oil products safer in the decades since.
The voluntary ban has always included the Douglas Channel - the series of fjords that lead from open water up to Kitimat, BC, the proposed terminus of Northern Gateway pipeline. This narrow waterway is typical of many of the spectacular routes in on the North Coast that lead from open water to communities at their heads.
During the 2015 general election, the Liberal Party of Canada and its leader - Justin Trudeau - promised to enact a ban of “oil tankers” on the north coast of British Columbia. Bill C-48 is the realization of that election promise. After ostensibly cancelling the Northern Gateway project - the most immediate potential conflict with a tanker moratorium, the government pressed forward.
Introduced in May 2017, Bill C-48 was passed by the Commons almost exactly one year later. The bill is currently being studied by the Senate Standing Committee on Transport and Communication. Once those hearings have concluded the bill will be returned to the Senate for third and final reading.
Thus far in the course of Senate committee hearings, many of the same individuals that spoke before the Commons committee have been heard re-iterating their stated positions. The Senate committee is slated to continue hearing witnesses into April - including a possible session in northern BC the week of April 21st.
Specific Concerns
In addition to a general concern that Bill C-48 radically over-prescribes a solution to its stated concern and the ongoing limitations the legislation will place on Canada’s already burdened oil and gas industry, Resource Works has three specific concerns about the Bill:
Indigenous Territory and Rights:
In their evidence to the House of Commons Standing Committee, representatives from both the Lax Kw'alaams and Nisga’a peoples raised very significant concerns about the imposition of an outright moratorium on tanker traffic in their traditional and treaty territories.
As far back as the Royal Proclamation of 1763, Canada’s First Nations have had a right to participate in the determination of land use. This has been taken to include water rights as well.
With the arrival of the Tsilhqot'in Decision from the Supreme Court of Canada, British Columbia’s indigenous communities without a treaty (the vast majority) have had their rights to economic benefits from their traditional territories confirmed. This surely must include use of waterways as well.
As a result, both the Lax Kw'alaams and Nisga’a peoples - with the benefits of Tsilhqot'in and their own treaty respectively - would seem to have a clear claim on determining the proper use of waterways and sea approaches. According to testimony from both community’s leaders, no substantive consultation between them and the Government of Canada has ever taken place on this subject.
Should C-48 pass unamended, both of these coastal Indigenous communities who have each expressed interest in aspects of the petrochemical industry (e.g., export terminal, LNG, refining) would be necessarily precluded from doing so. As a result, both communities would have their economic rights negatively infringed by Canada.
Reconciliation with Canada’s First Nations has been a cornerstone of the current government’s policy but as many have observed, any attempt at reconciliation without economic reconciliation - i.e., allowing Indigenous communities to determine their own economic futures - meaningless. Bill C-48 in its current form makes that process more difficult, not less, and has done so without any consultation with the affected communities.
In appearing with these two communities, Calvin Helin - the CEO of the Eagle Spirit Group - echoed support for the proposal put forward by the Lax Kw'alaams that “a northern boundary to the oil tanker moratorium be fixed at 54°, 30' N latitude pending the development of a lane separation scheme for oil tankers in Dixon Entrance equivalent to that in the Strait of Juan de Fuca.”
The illustration below demonstrates (approximately) what such a “carve out” might look like. It would clearly be well to the north of the territories of the Haida and the Heiltsuk’s (along with other Tsimshian nations) who have voiced the strongest support for the moratorium while still allowing the Nisga’a and Lax Kw’alaams access to their lands via Prince Rupert and the Portland Canal.
Evidence-based decision making:
While the North Coast is certainly spectacular, it isn’t exactly unique - even in Canada. Oil tankers successfully traverse the Juan de Fuca straight, Salish Sea, Vancouver Harbour, Gulf of St. Lawrence, St. Lawrence River, Arctic Ocean Great Lakes, Atlantic Coast, and the Bay of Fundy daily. These are all internationally recognized and beautiful examples of Canada’s natural heritage and the site of thousands of tourist visits every year.
Perhaps surprisingly, almost 225,000,000 metric tones of crude pass through Canada’s eastern ports every year. Additionally, another 37,000,000 metric tones of oil pass through Canadian waters from Alaska to the five refineries within 100 miles of the Canadian border in Washington state.
Elsewhere, places like the Caribbean - indisputably an area that prides itself as an unspoiled tourist idyll - see dozens of oil tankers passing each and every day, year in and year out, without any significant, negative environmental impact.
This has been the case for almost a hundred years without any significant spills or incidents in all that time. Surely many of these areas qualify as environmentally sensitive and aesthetically pleasing as well.
The two illustrations below show oil container traffic – first in and around Canada’s east coast, the second in the Gulf of Mexico and the Caribbean Sea – on a random day in March of this year.
The contrast speaks for itself.
This is all before the TransMountain pipeline expansion (TMX) - a project the Federal Government supports so vigorously they bought it - comes online. This will obviously increase the volume of crude leaving the Vancouver harbour.
What’s good for the goose is sauce for the gander: if the Federal Government rightly agrees that tankers can safely move through Burrard Inlet, Vancouver harbour, the Salish Sea, the Jean de Fuca Strait and past the southern half of Vancouver Island - some 100 miles of narrow water and archipelagos - then surely the same ships could manage the ten miles out of Prince Rupert Harbour to open waters?
It is clear from testimony from a range of industry witnesses before the House of Commons committee - including those from the shipping industry, pipelines, tank storage, the port authority and so on - made clear that a number technologies and best practices exist around the world.
Evidence-based decision-making would insist that unless some very clear reason otherwise was put forward, the treatment of one section of waters ought to be identical to the treatment of all others.
As far as Resource Works can tell, the only reasons put forward by Transport Canada to date are that the area is very pretty. In fact, in his presentation to the House Committee, Minister Garneau refers to the “spectacular scenery”, “pristine ecosystem” and “beautiful places” but not a word about the technology behind spill prevention or response. That hardly seems scientific.
Finally, the work of Transport Canada to date has focused almost entirely on spill response in the area. This seems like half the story at most: the Port of Prince Rupert, the Port of Vancouver, the shipping industry and others from industry has made clear that any number of options for spill avoidance - both active and passive - are available and in use around the world.
Surely those should be part of any evidence-based policy as well.
Additionally, Transport Canada has admitted under questioning that the selection of the 12,500MT limit included in the bill is arbitrary. This adds to the overall sense that this bill was put together with purely political - and not scientific - concerns in mind.
Definitions of “oil”, and “oil tanker” :
A number of experts have spoken both at the House Committee and elsewhere about the risk of the definitions in the bill being overly broad and unspecific.
While the intention of the bill is stated as a moratorium on “oil tankers”, as drafted the definition of “oil” in the bill reads as “petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products”.
This seems ridiculous for a government focused on science and evidence. As most high school chemistry students know, different liquids stratify in water based on their composition, weight and density. “Light” products - like diesel, gasoline and other refined products - would largely evaporate in the event of spill whereas heavy crudes - in the absence of modern spill prevention and clean-up technologies - could inflict serious damage as in the case of the Exxon Valdez.
In addition, with the continued hopes for expanded LNG production in British Columbia as well as the potential for shale gas and other lighter, refined products, these definitions could have disastrous effects on industries far beyond the scope of the stated purpose of the bill - a moratorium on oil tankers.
Given the relatively small number of products produced and shipped in Western Canada, this seems unnecessarily vague and broad.
For the sake of clarity and protection of these nascent industries, it would be much better for the bill to list out what is not included in the ban in addition to what is in the schedule to the Bill. At the very least, lighter products - e.g., gasoline, diesel fuel, jet fuel - that are shipped to and used in the communities within the moratorium zone as well as liquified natural gas (LNG) and other gas products should be specifically mentioned in the schedule.
Recommendations
While Resource Works’ first preference would be that the Government abandon C-48 entirely, assuming the bill will proceed we recommend the following changes be introduced by the Committee and the Senate before its adoption:
- In keeping with the proposal of the Lax Kw'alaams and in order to respect both their’s and the Nisga’a’s rights, a corridor be created within which the shipping of oil products would be allowed.
- That within that corridor, the Government of Canada requires the use of world-class spill prevention technology as recommended by industry leaders.
- That the environmental protection and economic self-determination provisions in the Nisga’a’s self-government treaty be specifically recognized as superseding Bill C-48 in the bill.
- That the Government of Canada provides for additional emergency, tug and spill response services to support the area - likely based in Prince Rupert - in order to ensure consistency with global best practices.
- That, if the government insists on proceeding with an absolute moratorium, the definitions included in the bill should be revised to ensure that less risky products - such as refined fuels, liquified natural gas and other non-heavy crude products - are not captured. In that instance, a list of those products should be specifically designated as permissible within the schedule annexed to the bill.
Conclusions
The Government of Canada is always trying to balance a wide range of competing - often violently so - interests and agendas. The Trudeau government’s professed attachment to evidence-based decision-making should make balancing those interests easier - when properly applied. Bill C-48, however, takes a wide-ranging, sledgehammer approach to addressing a very specific and narrow concern. This is the opposite of how evidence-based decision-making should work.
One of this government’s other hallmarks (and presumably, an intended legacy) has been the Indigenous agenda and reconciliation. No meaningful reconciliation is possible without economic reconciliation and C-48 effectively prohibits at least two large indigenous communities from economic development choices in which they have expressed interest without any meaningful consultation.
As a result, Resource Works believes that if the government insists on proceeding with C-48 the Senate should seriously consider the recommendations for amendments suggested above.
Balance is possible in the resource industry - even in British Columbia - but not with ideological decisions made in the absence of facts, data and an honest evaluation of all the pertinent considerations, not just the politically convenient ones.