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Comment: What happened to Liberal promises on NEB?

It appears a major promise made by Justin Trudeau as a candidate is about to be broken now that he is prime minister.

It appears a major promise made by Justin Trudeau as a candidate is about to be broken now that he is prime minister.

During the 2015 election campaign, Trudeau clearly promised that the National Energy Board would be reformed and pending pipeline approval applications would not proceed.

On June 30, Trudeau said: “It’s obvious the Harper government’s politicization of the National Energy Board, the process around approval for projects like this, is not working, and if there’s any hope for projects like this and others to go forward, there needs to be a restoration of public trust. That’s why we’ve announced we’re going to engage in a new, open process for all pipelines.”

During an Esquimalt campaign stop on Aug. 20, Trudeau was explicit that the restructuring of the NEB would be a Liberal government priority and that the Kinder Morgan pipeline expansion application “will need to be redone.”

These campaign promises tracked the Liberal party platform that explicitly pledged: “We will also ensure that environmental assessments include an analysis of upstream impacts and greenhouse-gas emissions resulting from projects under review.”

The prime minister’s pledges and the Liberal platform reassured British Columbians that a Liberal government would prioritize the restructuring of the NEB and that the controversial Kinder Morgan bitumen pipeline application would ultimately come to be evaluated by an independent NEB, one that would take a broad view of the public interest and true costs and benefits.

All seemed well when, after the election, the prime minister’s mandate letter to Natural Resources Minister Jim Carr required the minister to: “Modernize the National Energy Board to ensure that its composition reflects regional views and has sufficient expertise in fields such as environmental science, community development and indigenous traditional knowledge.”

Then, on Nov. 18, after a Canadian Association of Petroleum Producers announcement that “the rule of law” required the Kinder Morgan application to continue under the 2012 Harper rules, Carr announced:

“They [the reviews] have not stopped. The process will continue … There will be a transition as we amend the ways in which the National Energy Board goes about the process of evaluating these processes, and we will announce those changes as soon as we can, but the process continues.”

As a result, Kinder Morgan filed its final submission to the NEB on Dec. 17, and oral submissions by interveners, albeit limited to about 40 minutes each, have been scheduled by the NEB to start on Jan. 19 in Vancouver and in Calgary starting Feb. 2. The NEB has indicated it will release its decision on or before May 20.

How has this come to pass? There is a broad consensus that the existing NEB lacks diversified experience, has taken an incredibly narrow view of its jurisdiction, has excluded relevant issues and evidence, and has refused to conduct a meaningful public hearing in its over-enthusiastic pursuit of the 2012 Harper policy to shut down the scope and content of the NEB hearings in order to get approvals within an arbitrary time limit of 15 months.

Almost all Lower Mainland mayors and the Union of B.C. Municipalities have signed joint declarations of non-confidence in the NEB process. The North Vancouver Tsleil-Waututh First Nation, on whose clam beds the proposed export terminal will be built, is challenging the NEB process in court.

Optimists say this can’t be happening, that surely Carr has erred in the decision to allow the application to go forward, that the prime minister and cabinet don’t even know this is happening.

But realists are saying lawyers for Lower Mainland cities, municipalities and interveners have been forced to spend Christmas drafting submissions in opposition to the application that must be filed this week. Surely the cabinet must know that the Kinder Morgan process is drawing to a close and that reforming the NEB plan after the pipeline expansion plan has been approved will leave nothing to be decided under the new rules.

This speculation has led to the cold realization that we might be witnessing a bait-and-switch operation. British Columbians are now asking: What happened to the campaign promise that all pipeline applications would be subject to a “new, open process.” To the vow that there would be a new relationship with cities? A new relationship with First Nations?

Imagine how ridiculous it would be for a pipeline company to insist that it has a right to follow a particular permitting process in applying to construct a pipeline from Toronto’s Newmarket all the way down to Yonge Street to a proposed massive bitumen export terminal in the very centre of Toronto Harbour, “just because” it has chosen this location and notwithstanding the strident opposition of all Greater Toronto Area governments.

Be assured that the “rule of law” considerations raised by CAPP are irrelevant here. To the contrary, the rule of law would require a meaningful hearing before an independent tribunal that would openly and fairly assess all relevant issues and evidence.

Just as the prime minister promised, a promise that he and his government appear to be about to break.

David J. Martin is a constitutional lawyer with Martin + Associates in Vancouver.