Feds failed to consider downstream emissions and adequately consult Indigenous groups: applicants
The end-use impact of crude oil production and potential spills during shipment were not properly considered in the federal government’s approval of an offshore project, according to a challenge being heard next week at the Federal Court.
The Bay du Nord offshore oil project is located in the Flemish Pass Basin of the Atlantic Ocean, 500 km north-east of St. John’s and 1,170 metres below the surface.
The applicants, Mi'gmawe'l Tplu'taqnn Incorporated (MTI), Sierra Club Canada, and Equiterre, say the approval decision was unreasonable because it relied on an insufficient environmental assessment and did not properly consider the impacts of downstream greenhouse gas emissions and shipping. The company operating the project says it is subject to stringent emissions controls and the approval has 137 conditions, including a net-zero commitment.
The hearing at the Federal Court is scheduled for March 1 and 2.
“The claim is that the federal government fell woefully short of its constitutional duty to consult with the communities that [MTI] represent when they conducted the environmental assessment for the Bay Du Nord project,” says Ian Miron, managing lawyer at Ecojustice and counsel for the applicants.
Claim argues that ‘cataclysmic harm’ could befall salmon stocks
“Our client is concerned about oil spills and the impacts of increased shipping activity and tanker traffic coming from this project.” MTI, which represents eight New Brunswick Mi’gmaq communities, is worried that the increased activity could cause “cataclysmic harm to species such as the salmon population, which are “vital to the community’s economic and cultural well-being,” he says.
In April of last year, Environment and Climate Change Minister Steven Guilbeault approved the project, following an environmental assessment by the Impact Assessment Agency of Canada, which found the project would not cause significant adverse environmental effects. The project’s approval is subject to 137 conditions, including a goal of net-zero carbon emissions by 2050.
According to the memorandum the applicants filed with the court, MTI previously argued that the project threatened their constitutionally protected fishing rights because the oil it produced would be transported through Atlantic salmon migration routes. But “Canada’s representatives and the Minister ignored and refused to consider these concerns,” and the applicants argue this was a failure to uphold the Honour of the Crown and a breach of the Crown’s constitutional obligations.
Challenge focuses on ‘downstream emissions’
The vast majority of Bay du Nord’s emissions will come from “downstream:” the transportation and end-uses of the oil, say the applicants. During the environmental assessment, they submitted that the project will create around 129 megatonnes of downstream emissions, which is “inconsistent with global climate commitments.”
The applicants argue that the Minister’s decision was unreasonable because it ignored submissions related to downstream emissions, breaching the Canada Environmental Assessment Act, 2012. They also say it was unreasonable not to consider the adverse effects of marine transportation oil. The applicants argue that the decision was invalid because the Crown failed to properly consult and accommodate the members of MTI.
“The concern is that the environmental assessment did not look at marine shipping of oil on tankers within Canadian waters,” says Miron. “They didn't do any modelling of potential spill trajectories if there were a tanker spill in Canadian waters.”
“A single oil spill from that shipping traffic could have serious impact on species that migrate through that particular area, including, of course, the salmon.”
The respondents in the application are the Minister, the Attorney General of Canada, and Equinor Canada Ltd., the project’s proponent. Counsel for Equinor told Canadian Lawyer that they were unable to comment, as the case is currently before the courts.
Bay du Nord project described as having ‘strongest GHG conditions ever’
“The Impact Assessment Agency of Canada conducted a rigorous and thorough environmental assessment of the Bay du Nord Development Project,” says Jaclyn Sauvé, Impact Assessment Agency communications advisor. “The Minister of Environment and Climate Change stands behind his conclusion that this project is not likely to cause significant adverse environmental effects when mitigation measures are taken into account.”
In addition to the net-zero commitment, the 137 conditions with which Equinor must comply include “measures to protect fish and fish habitat, migratory birds, species at risk, air quality, human health and Indigenous peoples' use of resources,” she says.
“Bay du Nord is subject to the strongest GHG condition ever included in a Ministerial Decision Statement and will be five times less emissions intensive than the average oil and gas project in Canada. This project also aligns with the Government of Canada’s ambitious Emissions Reduction Plan to cut pollution.”
Equinor says that the Impact Assessment Agency opted not to assess downstream emissions and marine shipment, and that the applicants should be “time barred” from challenging this exclusion, as they failed to raise the issue during “the scoping phase” of the environmental assessment.
Equinor also argues that regulators and courts “routinely” reject the inclusion of downstream emissions in environmental assessments, and that this is consistent with Parliament’s decision to regulate downstream emissions separately from environmental assessments. The company adds that it is impossible in an environmental assessment to “identify ultimate downstream uses, the regulations that may apply to those emissions, mitigation measures, and justification.”
Canada argues that the Impact Assessment Agency does not have a statutory obligation to assess downstream emissions, nor to assess the oil’s marine transport. Downstream emissions are “more effectively regulated” by the jurisdiction where the oil is used, and marine transport is the responsibility of Transport Canada and the International Maritime Organization, Canada says.
As part of the consultation process, the Impact Assessment Agency had “meaningful discussions” with MTI’s members, and the Agency briefed the Minister, who found that the Indigenous groups’ concerns “are appropriately accommodated” by the project’s conditions, Canada says.
MTI is a non-profit representing eight first nations: the Amlamgog First Nation, Natoaganeg First Nation, Oinpegitjoig First Nation, Esgenoôpetitj First Nation, Tjipõgtõtjg First Nation, L’nui Menikuk First Nation, Ugpi’ganjig First Nation, and the Metepenagiag Mi’kmaq Nation.