In the summer of 2009, Dave Shannon found himself sitting in Dieter Wagner's backyard.
Wagner, a former colleague at Kitimat's aluminum smelter, had convened a meeting of locals concerned about Enbridge’s Northern Gateway proposal, which would see oil piped across British Columbia and loaded onto tankers in Kitimat.
“I’m an engineer, so industry is necessary, but some industries aren’t a good idea. This is one of them,” 67-year-old Shannon says. “I never was an activist throughout my whole life. This one just caught my attention.”
As the small group enjoyed tea and biscuits in the sunshine, they plotted how to fight back against Enbridge.
“We were spinning our wheels, wondering what to do to get going,” Shannon recalls. “We had no idea what was about to happen, but we thought it might be something we should worry about.”
The group dubbed themselves “Douglas Channel Watch” and registered as an intervenor in the National Energy Board hearings, meaning they could present evidence and cross-examine Enbridge’s witnesses.
Over the next three years, the group’s worry turned out to be warranted. The Northern Gateway proposal became one of the most controversial topics in the country. Facing unprecedented opposition from First Nations and the public, thousands registered to discourage the proposal in public hearings. The opposition sparked backlash from the federal government, changes to environmental assessment law that favour industry, a stand-off between B.C. and Alberta and dozens of twists and turns along the way.
Now, with the joint review panel’s recommendation to be released on Thursday at 1:30 PST, Shannon is sitting on the edge of his seat.
“I can’t imagine they will just straight out say no,” he says. “The most I can hope for is that they will accept it with a host of very difficult conditions. I think they noticed there were a lot of deficiencies in the argument that Enbridge put forth.”
For a man who spent thousands of hours reviewing documents and who picked apart Enbridge’s evidence on wind speeds and tanker corrosion, “it would be like the best Christmas present ever if they said they reject the project,” he says.
Lawyer: “Proponent has not proven the case”
The panel — consisting of three members, two from Calgary and a third from Ontario — will have to weigh the opposition of dozens of First Nations, thousands of citizens and the B.C. government’s 50-page report recommending rejection of the project against the arguments made by multinational oil companies and Enbridge.
Chris Tollefson, executive director of the Environmental Law Centre at the University of Victoria, represented BC Nature and Nature Canada at the Enbridge hearings. He and his team spent 26 hours cross-examining Enbridge’s witnesses.
“On the basis of the answers that we got, we are even more sure of our conclusion that this application should not go forward, that the risks are too high, that the uncertainties are too legion and, at the end of the day, the proponent has not proven the case,” Tollefson says.
Regardless of the panel’s recommendation, Tollefson says this case is likely to end up in court — with First Nations leading the charge if the panel recommends the project go ahead.
Cabinet can overturn recommendation, but not conditions
While viewed with skepticism by many critics, the panel’s recommendation to the federal cabinet is still an important piece of the political puzzle.
The federal government’s sweeping changes to environmental laws in the spring of 2012 mean cabinet can overrule the panel’s recommendation. However, the National Energy Board Act was also changed so cabinet can no longer discard the conditions attached to the recommendation (as happened in the case of the Mackenzie Gas Project).
“The National Energy Board act requires that the JRP [joint review panel] give conditions regardless of whether or not it recommends to approve or reject the pipeline,” says Gavin Smith, staff counsel at West Coast Environmental Law.
In April 2013, the panel released 199 “potential conditions” for Enbridge Northern Gateway.
“The feds … actually have to use the conditions that the board has put forward,” Smith explains. “They do have the power to send the conditions or the recommendation itself back to the board for reconsideration.”
Cabinet is expected to make its ruling within six months.
Feds unlikely to overrule panel
While the federal government could overturn the panel’s ruling or send the conditions back for reconsideration, that would be a questionable political move, says Nikki Skuce, senior energy campaigner with Forest Ethics Advocacy.
“If the panel says no, and with the B.C. government also having recommended rejection, I don’t see how Harper can approve it. I don’t think there’s any political way he can do it,” Skuce says. “I just don’t think that they’ll be able to flip the decision and win the 2015 election.”
Skuce, who’s lived in Smithers, a town on the proposed pipeline route, for more than 10 years and attended the panel’s hearings, is holding onto a sliver of hope that the panel will recommend against the project moving ahead.
“Having participated in the process and been at so many of the hearings and been quite surprised at how many gaps Enbridge left … I don’t understand how anyone could say ‘yes’ to this,” she says. “But the NEB [National Energy Board] is a culture of yes.”
“On good days, I have hope in these three people that they actually paid attention and listened to people and the evidence. And on realistic days, I think that they are going to put some tough conditions down, but that they’ll ultimately recommend approval.”
Even if the panel does recommend approval, it’s entirely possible that the conditions attached to their recommendation could make it difficult for Enbridge to move forward.
Once they’ve received the report, the federal government is expected to consult with First Nations. “If Harper listens to them, he would have to reject it,” Skuce says.
Northern Gateway faces uphill battle no matter what
Regardless of which way the panel recommendation goes, Enbridge is still facing a groundswell of opposition.
“They have no social licence to operate,” Skuce says. “The opposition is too great, what we have to lose is too great. People will do what it takes. I’d much rather it happened easier in a process decision instead of it getting ugly on the ground.”
Lionel Conant, whose home is just 500 metres away from the proposed pipeline route, knows what’s at stake.
“The proposed route of the pipeline goes within 100 metres of our water source,” he says. “I just can’t imagine what would happen, even just from the construction process.”
Conant says the battle to stop Enbridge has brought the community together.
“It’s amazing the diversity of people who’ve joined forces. It’s not just tree-hugging hippies here — it’s ranchers and loggers and farmers and millworkers trying to stop this from happening,” he says. “We’re really thankful for our First Nations partners in this struggle because they’ve got the legal weight to deal with it even if approved by the federal government because this is all unceded land.”
And while Conant awaits the panel’s recommendation, he says no matter what happens Enbridge will have a difficult time building a pipeline on land his wife’s family has lived on for 50 years.
“We’d stand our ground. We’d fight it,” he says.