David Boyd's statement to Joint Review Panel

David R. Boyd is one of Canada’s leading environmental lawyers and an Adjunct Professor in Resource and Environmental Management at Simon Fraser University. He also gave a statement to the Joint Review Panel regarding the Enbridge Pipeline, and has been kind enough to share it here. In the transcript below, David offers his personal convictions as supported by extensive research and analysis. If anyone in support of the project wishes to guest blog here also, supported by rigorous analysis, we will be happy to hear from you.

Proposed Northern Gateway Pipeline

Joint Review Panel

January 31, 2013

Oral Statement

David R. Boyd

INTRODUCTION

Good afternoon. My name is David Richard Boyd. I’m an environmental lawyer, professor, and author. I have degrees in business and law as well as a PhD in resource management. I’ve written five books and over 100 articles on environmental law and policy and served as an advisor for governments ranging from Canada to Sweden. My family lives on Pender Island and we have traveled extensively on BC’s magnificent west coast by kayak, sailboat, raft, and on foot.

I’ve reviewed many of the transcripts of presentations made by citizens who’ve already testified, to avoid repeating their statements. I was deeply moved by their eloquence, passion, and knowledge. It is an honour to join them in opposing this project.

Here are seven reasons why it is not in the public interest (under s. 52(2)(e) of the National Energy Board Act) for the Northern Gateway pipeline project to be approved.

1. Aboriginal land claims in BC must be settled first.

2. Canadian environmental laws, standards, and policies must be strengthened to meet or exceed comparative international standards.

3. Regulatory agencies in Canada must be given the resources and independence to effectively enforce environmental laws.

4. Canada must recognize that all people have the right to live in a healthy environment.

5. Enbridge cannot be trusted.

6. Canada must take strong action to reduce greenhouse gas emissions

7. Canada must adjust its regulatory regime to increase the public benefits of oil and gas development, ideally using the highly successful Norwegian model as a basis.

Let me expand each of these points.

I.

The first reason why the pipeline should not be approved is the fact that most of BC, including almost all of the land that would be traversed by the proposed pipeline, to this day, is subject to unresolved Aboriginal land claims. You’ve already heard from the First Nations themselves. The situation is remarkably similar to that facing the proposed MacKenzie Valley Pipeline in the 1970s.

As you know, Thomas Berger recommended against the approval of the pipeline until the northern land claims had been resolved. Berger’s report served as a powerful impetus for the treaty negotiation process, leading to final settlements for the Sahtu Dene, Gwich’in, Dogrib, and others.

II.

The second reason why the pipeline should not be approved is that Canada lacks an adequate regulatory system for protecting the environment. This is a major reason why Canada ranks 15^th out of 17 large wealthy industrialized nations in terms of environmental performance as the Conference Board of Canada reported earlier this month. A similar comparison of wealthy OECD nations ranked Canada 24^th out of 25 for environmental performance. Prime Minister Stephen Harper himself said five years ago, QUOTE “Canada’s environmental performance is, by most measures, the worst in the developed world. We’ve got big problems.” END QUOTE I’ve published analyses comparing Canadian environmental laws and regulations governing air quality, drinking water safety, pesticides, and toxic substances to the laws in the US, Australia, and Europe. Our laws and standards are consistently and substantially weaker. The two omnibus budget implementation bills passed in 2012 will only make matters worse. Five major environmental laws were weakened or repealed altogether, including CEAA, Fisheries Act, NWPA, SARA, and KPIA.

Let me give you three specific examples of Canadian weaknesses. Canada’s Marine Liability Act is grossly out of date and inadequate. Liability limit is $1.3 billion. Exxon Valdez was 20+ years ago and cleanup cost at least twice that amount. Canada Shipping Act regulations establish a limit for oil spill response plans of 10,000 tonnes of oil. Exxon Valdez spilled 40,000 tonnes. Super tankers carry as much as 300,000 tonnes of oil. Less than 1% of Canada’s marine realm is set aside in Marine Protected Areas despite promises dating back decades. Compare that to Australia, where MPAs now cover 36% of their oceans.

III.

The third reason why the pipeline should not be approved is that Canada lacks the capacity to enforce even the weak environmental laws that remain on the books. A recent report from Ecojustice shows that federal prosecutions and convictions for environmental crimes, already abysmally low under the Liberals, have fallen further since the Conservatives took office in 2006. Consider the Canadian Environmental Protection Act, touted as the toughest environmental law in the western world when passed in 1988. The total amount of fines levied under CEPA between 1988 and 2012 was $2.5 million. That is less than the amount of fines collected last year by the Toronto Public Library for overdue books. Here’s another relevant comparison. In the Terra Nova case involving an offshore oil spill, PetroCanada was fined $290,000. Last year Brazil fined Chevron over $20 million for a similar-sized offshore oil spill. To settle a civil lawsuit, Chevron also offered to pay Brazil an additional $150 million for the damages inflicted by that oil spill. In other words, Chevron’s penalty was 500 times higher in Brazil.

IV.

The fourth reason why the pipeline should not be approved is that Canada lags behind most of the world in failing to recognize that its citizens have a fundamental human right to live in a healthy environment. My two most recent books show that recognition of this right leads to stronger environmental laws, improved enforcement, and protection from the type of rollbacks seen in Canada over the past year.

The right to a healthy environment right enjoys constitutional status in 108 countries. Not Canada. It’s included in national environmental legislation in 103 countries. Not Canada. It’s part of legally binding regional human rights agreements ratified by 120 countries. Not Canada. In total, 177 out of 193 UN nations recognize this right. Not Canada.

Yet nine in ten Canadians believe that the government should grant this right legal status. Over half of Canadians believe it is already in the Charter of Rights and Freedoms.

It is also essential to point out that environmental rights and responsibilities are cornerstones of Indigenous legal systems in Canada, as Professor John Borrows points out in his book Canada’s Indigenous Constitution.

V.

The fifth reason why the pipeline should not be approved is that Enbridge’s claims must be viewed through the lens of history. History demonstrates, beyond a reasonable doubt, that corporations consistently and systematically deceive, distort, and lie. This pattern of behavior has been established for the tobacco industry, the banking industry, the lead industry, the asbestos industry, the pharmaceutical industry, the chemical industry, the pesticide industry, the petroleum industry, and others. Dr. David Michaels summarizes this record in his book Doubt is their Product, published by Oxford University Press. This propensity for dishonesty is a defect inherent in the corporate model that demands the maximization of shareholder profit above all else. It would be willful blindness to expect anything different from the pipeline industry or Enbridge.

VI.

The sixth reason why the pipeline should not be approved is that humanity is on the brink of a climate crisis. GHG emissions are rising faster than the IPCC’s worst-case scenario. Arctic sea ice is disappearing more rapidly than the IPCC’s worst-case scenario. The World Bank recently warned: “the world is barreling down a path to heat up by four degrees if the global community fails to act on climate change, triggering a cascade of cataclysmic changes that include extreme heat waves, declining global food stocks, and a sea-level rise affecting hundreds of millions of people.” And yet Canada drags its heels, failing to reign in our emissions.

VII.

The seventh reason why the pipeline should not be approved is that there is a better way to manage a nation’s oil wealth. Canada should look to Norway, where strong environmental laws and carbon taxes have spurred innovation, where rules giving locals priority for jobs and training have resulted in minimal unemployment, where the public has reaped the lion’s share of the benefits, and where oil and gas have generated a sovereign wealth fund currently in excess of $600 billion dollars.

CONCLUSION

To conclude, it is not in the public interest to approve this proposed pipeline until

1. Aboriginal land claims in BC are settled.

2. Canadian environmental laws, standards, and policies are strengthened to meet or exceed comparative international standards.

3. Regulatory agencies in Canada are given the resources and independence to effectively enforce environmental laws.

4. Canada recognizes that all people have the right to live in a healthy environment.

5. Canada takes strong action to reduce GHG emissions.

6. Canada adjusts its regulatory regime to increase the public benefits of oil and gas development, using the highly successful Norwegian model as a basis.

I want my 7 year-old daughter to grow up in a country she can be proud of, and experience the same joy and wonder that my partner and I have been blessed by here in BC.

Thank you for your time and attention. Good luck with your deliberations!