By Martha Hall Findlay
Published in the Globe and Mail

February 26, 2019

When it’s a whole-of-government problem, the whole of government is needed.

The National Energy Board (NEB) just released its “reconsideration report” for the Trans Mountain Expansion Project (TMX) and, once again, recommended that the pipeline project be approved. In addition to the original 156 conditions imposed on the project if approved, the NEB made 16 new recommendations to the Government of Canada. The regulator specifically looked at potential effects from the project on marine shipping – and in doing so, took a “holistic approach” to its recommendations that clearly shows that marine concerns are bigger than any one pipeline project.

The solutions must be, too.

The TMX pipeline has become a convenient proxy for concerns about the southern resident killer whale, about climate change and about potential (even if unlikely) ocean spills. Those concerns are real – but they arise from the whole of marine shipping on the West Coast, and in particular the Salish Sea. “Effects from [TMX]-related marine shipping will be a small fraction of the total cumulative effects, and the level of marine traffic is expected to increase regardless of whether [TMX] is approved,” the NEB report notes. But if the federal government makes changes to the operation of “all marine traffic” – that is, project-related and other, it will “offset the incremental effects of the [TMX], and make material improvements to the health of the Salish Sea.”

The report makes it clear that whales and spills are concerns tied to all of marine shipping, not just one project and, appropriately, recommends a whole-of-government response for all marine traffic.

The NEB report came after a decision last fall by the Federal Court of Appeal, Tsleil-Waututh Nation v. Canada (Attorney-General), in which the court found that the regulator should have included project-related shipping in its initial report. The court also told the federal government that it had not adequately fulfilled its duty to consult Indigenous communities. At the time, there was much gnashing of teeth from those concerned the court had thrown up another, potentially fatal, barrier to the pipeline. We had a more optimistic view, that the decision provided a clear way forward for this, and future, projects. Indeed, in this report the NEB addresses the concern raised by the court about maritime shipping – and makes it clear that the concerns, while valid, can be addressed; it then reconfirms that “the Project is and will be required by the present and future public convenience and necessity, and is in the Canadian public interest.”

The onus is now on the Governor in Council (the federal cabinet) to approve the project. It has 90 days, until May 9, to do so. However, although the NEB reconsideration is complete, the federal government must still fulfill the second requirement laid out by the court, a more complete consultation with Indigenous communities. Natural Resources Minister Amarjeet Sohi recently suggested that federal consultation teams have met with more than three-quarters of the affected communities since October.

On this particular note, the Federal Court judgment several times acknowledges the desire to avoid delay: “The concerns of the Indigenous applicants, communicated to Canada, are specific and focused. This means that the dialogue Canada must engage in can also be specific and focused. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful. The end result may be a short delay, but, through possible accommodation the corrected consultation may further the objective of reconciliation with Indigenous peoples.”

Given that more than three-quarters of the communities have already been consulted with, this should be accomplished before the end of the post-NEB report 90 days. Given the seasonality of construction, the federal government should complete this consultation as soon as possible.

Context is useful – despite all the rhetoric about the resulting increase in tanker traffic, tankers are still far, far outnumbered by all other types of marine traffic. The TMX-related increase would represent barely a 4-per-cent increase in the overall shipping traffic in the area. It would therefore be completely inappropriate for this one project to bear the responsibility for all shipping’s cumulative challenges to the whales. But the court said, appropriately, that the NEB should not have ignored this issue. We now have acknowledgment that dealing with threats to the whales and potential spills is a whole-of-shipping responsibility – not tied to a single pipeline project – and that, rightly, it’s time for whole-of-government solutions.

Martha Hall Findlay is the president and CEO at the Canada West Foundation