Few regulations in British Columbia have died as quick and ignoble a death as a 2014 Order in Council exempting proposed natural gas plants from having to undergo environmental assessments.
It was a change that fossil fuel companies drilling and fracking for natural gas in the northeast of the province had demanded for some time. Yet only two days after it came into force on April 14, the short-lived amendment to a key piece of provincial environmental legislation was dead, and BC’s then-Environment Minister, Mary Polak, was forced to issue a mea culpa that hinted at an embarrassing lack of consultation with First Nations.
Nearly five years later, the events surrounding Polak’s jaw-dropping turnaround are worth revisiting in light of the current government’s overhaul of BC’s Environmental Assessment Act—the same piece of legislation that Polak so ill-advisedly set out to change.
Thanks to documents that the Fort Nelson First Nation (FNFN) obtained through a Freedom of Information request (FOI), we now know more about what happened back in Polak’s day.
Those documents clearly show that Canada’s preeminent fossil fuel industry lobby organization—the Canadian Association of Petroleum Producers—wanted the change that Polak signed into law. As did Encana Corporation—one of the province’s top natural gas producers and a substantial political donor, primarily to the BC Liberals but also to the BC NDP.
With the stroke of her pen, Polak formally ended the requirement that “upstream” natural gas processing plants must undergo provincial environmental assessments.
The change paved the way for speedy approval of such plants, of which Encana was known to want to build three. Such plants were designed to take raw gas from the growing network of drilled and fracked natural gas wells in northeast BC, strip the gas of valuable liquids such as condensate, and then send the processed gas on its way to customers.
The same documents also show that Polak’s staff and others in government knew that what they were doing would be opposed by First Nations, whom they had pointedly failed to consult.
When the FNFN found out, it was furious. Making matters worse for Polak and her Cabinet colleagues, the First Nation was scheduled to host an “LNG Summit” only two days after the regulatory change came into effect.
The matter quickly blew up in the government’s face, forcing Polak to rescind the regulatory change on Wednesday, April 16.
“Our government is committed to a strong, respectful and productive relationship with First Nations,” Polak said in a prepared statement. “That is why we will rescind the amendment that would have removed the requirement for an environmental assessment…”
That same day, FNFN chief Sharleen Gale, stood on the stage at the LNG Summit and asked provincial government delegates in attendance to leave the hall. Video of the meeting shows those delegates walking out of the hall to the steady beats of a line of First Nation drummers.
Meanwhile, behind the scenes, provincial officials tried to lessen the damage by writing to Gale. A draft of the letter, contained in the FOI package released to the FNFN, was written by Laurel Nash. Nash, who was then BC’s chief negotiator for LNG and Strategic Initiatives in the Ministry of Aboriginal Relations.
“We take full responsibility for not engaging with you on this change or even advising you that it was going to occur prior to making the public announcement. This is not how we want to work together now and in the future,” stated the letter, which circulated in four different government ministries as well as the provincial Oil and Gas Commission.
But if anyone thought this signalled a change in direction, they were mistaken.
Polak may have backtracked, but she and her Cabinet colleagues fully intended to continue exempting natural gas plants from environmental assessments, thereby saving the likes of Encana undisclosed amounts of time and money.
How do we know this?
Because Encana built not one, not two, but three massive gas processing plants in a row in northeast BC and every one of them was exempted from assessments.
The first of those plants—the Sunrise plant—was the largest of its kind built in western North America in 30 years. It was exempted from assessment shortly before the government’s short-lived regulatory change was made. Then two other plants—the Saturn and the Tower plants, both of which are of a similar scale to the Sunrise plant—were subsequently exempted by the BC Environmental Assessment Office (EAO) after Polak was forced to back down and rescind the regulation.
These approvals happened despite the fact that all three plants gobbled up land in BC’s allegedly protected Agricultural Land Reserve, and over the objections of local First Nations who were alarmed by the “cumulative” threats posed by multiple energy industry developments in their territories.
What the province failed to achieve by the blunt force of scrapping the regulation all together, it achieved through the back door. Under EAO rules, any company building a “major” or “reviewable” project can request that the EAO waive the requirement for a formal assessment. More paperwork is involved than if the regulation didn’t exist, that’s all. Encana asked three times to be exempted, and each time its wish was granted.
Those decisions did not happen in a political vacuum. The FOI record clearly shows that the government of the day was committed to getting those gas plants built with no environmental assessments getting in the way.
This is the legacy that the current government inherited.
It knows that allowing the EAO to retain broad discretionary powers to exempt major projects from formal environmental assessments is an affront to the very idea of free, informed prior consent—a cornerstone of the UN Declaration on the Rights of Indigenous Peoples, which the current government has sworn to uphold.
Unfortunately, the government’s recent revisions to the Act would see the EAO retain the same sweeping discretionary powers as before, with the only caveat being that if the EAO recommends a project be exempted from review, then the Minister would have to sign the actual exemption order itself.
This minor change marks a tiny step forward by placing the onus on the Minister, but it is hardly one that should comfort First Nations or the general public.
All major industrial projects have environmental impacts. We have a law in place that’s supposed to ensure a modicum of environmental protection by requiring that all such projects are assessed before being built. When governments allow—or indeed encourage—one industry to get around such rules, we have a problem.
The cleanest way to resolve that problem is to end the EAO’s discretionary powers to exempt projects. No exceptions.
Author: Ben Parfitt
Ben is the resource policy analyst with the Canadian Centre for Policy Alternatives – BC Office. He has received numerous awards for his investigative journalism, is a co-author and author of two books on forestry, and is a long-established researcher and policy analyst specializing in natural resource management and environmental issues. Reports and analysis for the CCPA–BC include Fracking, First Nations and Water: Respecting Indigenous rights and better protecting our shared resources (June 2017); A Dam Big Problem: Regulatory breakdown as fracking companies in BC’s northeast build dozens of unauthorized dams (May 2017); From disenfranchised to revitalized: Ten proposals to set our forests and BC’s rural communities on a new course (March 2016); Counting Every Drop: The case for water use reporting in BC (June 2013); and Fracking Up Our Water, Hydro Power and Climate: BC’s reckless pursuit of shale gas (November 2011).