Senate Appearance – National Strategy to Facilitate the Transport of Crude Oil

Senate Appearance

National Strategy to Facilitate the Transport of Crude Oil

October 21, 2016

Speaking Notes      

Regional Chief Morley Googoo


Good morning Mr. Chair, members of the committee, fellow witnesses and guests. Thank you for the opportunity to appear today to discuss our concerns on the need for a national strategy to facilitate the transport of crude oil. I join you today in my role as Regional Chief for the Assembly First Nations, as I represent Nova Scotia and Newfoundland.  I am also a member of the Assembly of Nova Scotia Mi’kmaq Chiefs, who represent 11 of the 13 Mi’kmaq communities in Nova Scotia and together we provide directions to our technicians at Kwilmu’kw Maw-klusuaqn Negotiation Office, or the Mi’kmaq Rights Initiative.  Today I am joined by two representatives of Kwilmu’kw Maw-klusuaqn Office, Twila Gaudet, our Director of Consultation and Melissa Nevin, one of our Consultation Researchers.

We are proud to say that here in Nova Scotia we have a Process that is unique to anywhere else in Canada. The Mi’kmaq have existing Treaties that are recognized by Section 35 of the Constitution and our Process reflects that.  The Made-In-Nova Scotia Process respects our Rights and looks as the best ways to implement Aboriginal and Treaty Rights. The three parties – Nova Scotia, Canada and the Mi’kmaq – as part of the Made-In-Nova Scotia Process have also agreed to follow a Consultation Terms of Reference that clearly lays out a process for Crown consultation with the Mi’kmaq. The Terms of Reference for a Mi’kmaq – Nova Scotia – Canada Consultation Process was ratified August 31st, 2010 and through it, we assess possible infringements in the Crown’s decisions or actions; minimize impacts on Mi’kmaq Rights and Title; and accommodate the Mi’kmaq.

In 2008 the Canadian Government advised all of its departments that consultation was “most effective if initiated as early as possible – before decisions are made.” Beyond that, the duty to consult and accommodate First Nations when the Crown’s decisions may have an impact on Aboriginal and Treaty Rights has been recognized by the highest courts in Canada. We say this to stress the importance of Crown consultation.  This is the only way to facilitate the involvement of Indigenous peoples in decisions related to crude oil transport.  Impacts to Aboriginal Rights and Title need to be addressed, and meaningful consultation and accommodation of First Nations people must occur.  Our Consultation team has been calling on consultation with Natural Resources Canada when regulatory decisions are being made with the National Energy Board. The National Energy Board does not have the duty to consult, even though they are the entity of the Crown.  Beyond that, we have found that the NEB process is difficult to navigate and comes with its own set of challenges.

We have also continued to stress in our Consultation discussions that Legislative timeframes are restrictive and should allowing adequate time for meaningful Crown to Mi’kmaq consultation. We have seen in the past omnibus bills being pushed through the legislative process, with no requests for consultation, let alone any meaningful dialogue with the First Nations people of Canada before these Bills are brought forth.   One of question being asked of witnesses today is “how to improve public confidence in the pipeline review process”.

We must say, that from a First Nations perspective that will be a major challenge. The Mi’kmaq have never surrendered, ceded or sold the Aboriginal Title to any lands and resources.  The lands, waters and resources are tied to who we are. As the first people of these lands, we are incredibly passionate about what happens in our traditional territory and our people have concerns about the impacts of development, on environmental protections and on resource management, not only in Nova Scotia, but across the country. Our community members are vocal – just as the First Nations voice has been all across Canada.

The priority of all Indigenous people is to protect the lands and resources that have sustained us since time immemorial. Conducting research we have found that in the past six years there have been 14 incidents of pipeline leaks that are labelled by the NEB has causing “adverse environmental affects” and to date, many are still listed as having an unknown amount of oil leaked.   Seven of these incidents were in 2015 alone. In July this year, a Husky Energy pipeline in Saskatchewan, leaked up to 250,000 litres of oil into the river.  Months later and this spill has yet to be fully cleaned up.   Most recently a spill occurred – just two weeks ago – in Northern Alberta, and covered an area of three hectres, including wetlands. Wetland areas are significant for both environmental and traditional use purposes, and the destruction of these areas is unacceptable.  Wetlands are important for their environmental, ecological and social aspects and they cannot be easily replicated, from a biological perspective. It is clear that the transportation of oil puts the environment at risk. When spills do happen, who suffers?  We all do.

We also have to wonder, how many spills happen that are not being reported? It’s hard to improve public confidence in an industry and a process that is clearly flawed.

As an example, Apache Canada Ltd. pled guilty this year to two counts of failing to properly operate its pipelines after multiple spills on its network.  Apache admitted in court that they had installed the wrong size of pressure valves on the pipeline and that they did not properly review the reports on whether or not these valves were working properly. Clearly the fines that these multi-billion dollar companies are being handed down through the courts are not adequate deterrents. In order for any level of public confidence in pipelines and the review process there needs to be a major overhaul of the current check boxes that proponents meet.

First and foremost, all and every effort needs to be made to prevent leaks. Prevention is the only way forward.

There needs to be rigorous environmental monitoring, spill prevention plans must be a requirement and effective emergency management measures need to be put into place, before any work is done. Pipelines that are older are at risk of an accident and should be replaced.  It should be mandatory that pipeline leaks be fixed immediately.

It is clear that there also needs to be better public communication and public education – one that is not driven solely by the proponent.   Canada must be invested and there needs to be evidence of that.

Canada also needs to work to make the process clear and transparent when granting approvals for infrastructure projects, including pipelines.

Citizens must be involved and one way to do this is to create a new process for the selection of hearing panelists – one that includes Indigenous peoples. There are differences in perspectives across Canada, and the various points of view need to be heard, recognized and acknowledged.

These decisions cannot be one-sided anymore.  We see the uprising that can happen when the general public is not informed and included. There must be a more balanced public process. This is important for all Canadians.

Clearly, a national strategy is needed, and must include a number of very important items:

As a country, we need to look into the safe transportation of crude oil.  Although we recognize that pipelines have a lower spill incident and fatality rate, a pipeline oil spill can have severe and long lasting impacts on the environment and regional economy.  Oil spills can be devastating and as we know, you can never truly recuperate and bring the environment back to its original pristine state. There must be a way that we can strive to see that zero spills occur.  As we see it, this can only be done through proper infrastructure and constant monitoring. There needs to risk assessments done on each mode of transportation that is used, to identify gaps and possible improvements. We are all too aware of the pressing need for the oil industry in Canada.  But there also needs to be a way to conduct business safely. We must consider the environmental and ecological impacts of our decisions today, and how it can affect the next seven generations. In a National Strategy, it is essential that we also look at the long term human health impacts of these decisions.

As you can see, both the environment and the health of our people is crucial to the way we view any work being done in Canada. For far too long, decisions have been made for Indigenous communities to the detriment of generations of our people.  Safe drinking water and a pollution-free environment should not be things that we have to fight for every day in Canada.  But it is. We have the power to stop that. Even with the best equipment and the best training things do happen and will go wrong.  We have to have trust that you are doing everything that can be done to best prevent them.

Here in Nova Scotia, this need to be done in collaboration with the Mi’kmaq.  We have a role to fulfill. The protection of our Rights is paramount and it has been since the day our Treaties were signed.  And this is why we have concerns with Social Licenses.  Social licenses do not protect our Rights. And safeguarding our Rights and Title will always be the priority of the Assembly of Nova Scotia Mi’kmaq Chiefs and the Mi’kmaq of Nova Scotia. We hope that with today’s presentation, you can recognize how strongly rooted our concerns are in the traditions, lives and culture of our people.   Stewards of the environment is a role that we hold today, and will continue to hold in future generations. On behalf of the Mi’kmaq of Nova Scotia, I thank you for the opportunity to have our concerns and opinions be heard.I am thankful that we are now part of a country where we have a voice and the opportunity to make things right.

Thank you for your time.