Enbridge’s Export Pipeline – Line 3

Last week Albertans gave a collective sigh of relief with the announcement that construction would start on replacing the Enbridge Line 3 from Hardisty to Superior, Wisconsin. This helps relieve the bottleneck for Alberta crude and reduces the use of the more risky rail transportation option. Pipelines and the oil they contain are the ‘bete noir’ for Canadians that oppose resource development.

Enbridge might have thought they were on the side of the angels with this project. In November 2014, they applied to the National Energy Board (NEB) to replace the existing 1,600 kilometer pipeline (1,000 in Canada) with new and larger pipe and more sophisticated controls. They would decommission and remove the existing 40 year old line. The Canadian portion of the project is expected to cost 4.8 billion (now up to $5.3 billion) and the US part a further $2.9 billion.

The pipeline would carry 760,000 barrel per day of crude oil (mostly from the oilsands). The project would nearly double the line’s capacity. The pipeline is in an existing corridor with five other pipes. It goes through mostly privately owned farm land.

Not so fast Enbridge! The NEB manages a regulatory process that has recently become very uncertain and time consuming. The hurdles and process are summarized below.

Warning – if reading about government process ruins your day stop here.
Landowners Issues:
  • The landowners are a major stakeholder. 99.5% of the right of way is privately held or occupied crown land. The NEB report noted Enbridge’s efforts to resolve landowner concerns, including its negotiated settlement agreements three provincial landowners associations.

Environmental Issues:
  • The environmental reports and NEB hearing assessed the removal of the old pipe and land and construction related disturbances of the replacement pipe.

  • As part of the assessment an analysis of the upstream environmental effects was carried out. Mostly the report calculated the carbon load from the incremental 360,000 barrels per day.

Indigenous Issues:

  • The most complex and uncertain elements were the aboriginal issues. The pipelines don’t go through and reserves but there are implications for treaty hunting, fishing and trapping rights must be considered. The federal government requires project proponents to actively engage with aboriginal groups. The NEB and Natural Resources Canada work to fulfill the “duty to consult” and “duty to accommodate” based on the 1982 Constitution Act and Supreme Court’s interpretive decisions. The federal government has committed to establishing improved relationships with indigenous people.

  • Enbridge Consultation:

    • The Enbridge consultation process began in 2013 and consulted with 77 groups. At the request of the government it expanded consultation to 145 groups through face to face meetings or community drop in events.

    • In the board hearings a “he said – she said” debate arose. Some indigenous groups were satisfied with the process. Others complained that Enbridge was not sincere, had not incorporated traditional knowledge into the design and had sought to pressure groups to sign off in agreement with the project.

    • Enbridge’s side of the story was that they had consulted every reserve within 200 kms of the pipeline. They said minutes from every meeting demonstrated its commitment to the process. They noted that process had spawned a joint action with aboriginal groups to address Qu’Appelle valley watershed issues.

    • The NEB concluded that the scope and implementation of consultations was sufficient. It imposed approval conditions; to continue the consultation process to project completion and then separately submit a operational phase consultation report.

National Energy Board Hearings:
  • The NEB hearings are a part of the consultation and accommodation process. In advance of the hearing the NEB allocated nearly $1.0 million to 31 aboriginal groups to participate in the process. 39 aboriginal groups were intervenors and a further 26 were permitted to comment on the application.

  • In their interventions many aboriginal groups describe themselves as stewards of the land and water and some wanted to be directly involved with the project. The concern of potential spills and effects of construction on water courses were themes raised by intervenors.

  • Some sought increase use of traditional knowledge in the project and others a role in monitoring the project.

  • Some referenced traditional land use for hunting, fishing trapping and cultural use. (Enbridge pointed out that the land was privately held thus traditional land use opportunities were not feasible.)

  • There were complaints about the adequacy of the consultation process.

  • The NEB approved the project in April 2016 with 37 binding conditions and more conditions related to issuing a certificate to operate:

    • The Board set a condition that Enbridge prepare an aboriginal consultation plan for the operational phase of the pipeline. Enbridge was also required to finish a traditional land use study for one section of the line.

    • Enbridge committed $27 million in indigenous engagement agreements that included training, traditional knowledge and land use studies, and committed contracts.

Natural Resources Canada
  • Natural Resources Canada added a further consultation process, (seven months in all) before the government made a decision on the NEB recommended approval. They began a consultation process to further fulfill the duty to consult and accommodate:

    • They met with 36 groups to identify outstanding issues.

    • The department funded 24 groups (160K) to allow indigenous groups to review the NEB report.

    • The Government will provide up to $21.6 million for an Indigenous Advisory and Monitoring Committee that will work with federal regulators and the proponent to oversee environmental aspects throughout the project life cycle.

    • They re-assessed the Enbridge proposal and the conditions imposed by the NEB to see if they met the Crown’s obligation to consult and accommodate treaty obligations and met government’s objective to re-new its relationships with aboriginial people.

    • Natural Resources Canada reached the conclusion the obligations were met and recommended that Cabinet approve the project.

Cabinet approved the project November 29, 2016. the same day it approved Trans Mountain application to expand its line from Alberta to the Pacific and rejected the Northern Gateway project.

And Going Forward
  • These pipeline debates are not over. The Chippewas of the Thames First Nation in southern Ontario (near London) appealed the National Energy Board’s approval of Enbridge’s expansion and reversal of its Line 9 pipeline. (Sarnia – Montreal). In July 2017 the Supreme Court ruled in favour of the NEB.

  • And beyond this:

    • The federal government is “modernizing” the NEB to consider ‘regional views’ indigenous concerns, environmental science and community development.

    • A review of the federal government environmental assessment process is being led by the Environment and Climate Change department.

    • The BC provincial government opposes the Trans Mountain pipeline recently approved by the federal cabinet.

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