NEB delays reversal of Line 9 pipeline amid public pressure and a First Nations court challenge

The sad sorry saga of Line 9B has been dragging on for far too long – but luckily for us all, it’s gonna drag on a while longer.

If you’ve never heard of Line 9, then you’re like most people. Given the huge potential for disaster that this pipeline represents, it’s been embarrassingly under-covered by the media.

Here’s a song about it!

“Line 9 Song” by Byron, used under an Attribution-Noncommercial license

Line 9 is an already-existing pipeline which runs from Montreal to Sarnia, and for the past forty years or so it’s been transporting refined light crude oil westward. Enbridge, which owns the pipeline, applied to the National Energy Board for permission to reverse the pipeline’s direction, increase the volume it was allowed to transport, and switch over to transporting unrefined tar sands bitumen.

There’s a lot of issues with this plan. Bitumen has to be transported at a considerably higher pressure and temperature than light crude, and there are serious concerns about the integrity of the forty-year-old pipeline. A similar Enbridge pipeline of similar age burst near Kalamazoo, Michigan, in 2010, spilling over three million litres of bitumen into the Kalamazoo River. The fact that bitumen, unlike crude oil, sinks in fresh water made the disaster significantly worse, necessitating a complicated multi-year cleanup and causing massive damage to wildlife and the health of local residents.

That the oil spilled in a river is significant, because Line 9 crosses 36 different tributaries of Lake Ontario. A major spill of bitumen could be catastrophic for the world’s fourteenth-largest lake, which is the source of drinking water to over 9 million people in Canada and the United States.

And on top of all that, tar sands extraction is quite literally one of the most short-sided and ecocidal policies the human race could be pursuing right now. Making it easier for Enbridge to bring tar sands bitumen to international markets would be a terrible idea even if the structural integrity of Line 9 was guaranteed.

Despite these significant concerns, and the opposition of a broad coalition of environmental activists, First Nations, and concerned people who live near the pipeline, the NEB, which is an allegedly arms-length arbitration board which is in fact dominated by people with connections to the oil industry, strictly limited debate and discussion of the reversal, and gave Enbridge its approval in March 2014. The approval, however, was contingent on Enbridge complying with a set of conditions for making the pipeline safer, with the NEB’s final permission to proceed deferred to a later date.

And a lot of people thought that date was going to be this past week, as Enbridge returned to the NEB for approval.

And for good reason too – the Chippewa of the Thames First Nation (COTTFN), whose territory is directly adjacent to the pipeline, launched a court challenge on June 16 alleging the Government of Canada had ignored their rights under Section 35 of the Charter of Rights and Freedoms, which requires consultation on a nation-to-nation basis on projects which will have an impact on First Nations territory. Enbridge was keen to get the bitumen flowing before the court challenge could be heard. The Toronto Media Co-op covered the story late last month:

The prospect of the line being turned on while Chippewas of the Thames First Nation (COTTFN) is still objecting due to lack of consultation does not sit well with the community. On May 21st lawyers for the COTTFN filed an application with the NEB to stay the final Line 9 decision pending the results of their appeal. While affirming their opposition to Line 9 through the courts, their resistance is grounded in traditional knowledge and responsibilities, as band councillor Myeengun Henry explains, “[we] know it is our obligation to protect the land, the environment… our spiritual connection is strong in our community and [we] are strongly opposing this project.” […]

The reasonable probability of significant impact on an Indigenous community should trigger a full consultation process, and since Enbridge and the federal government shirked this responsibility, COTTFN are taking the matter to court. The rights they are asserting are protected in treaties and the Canadian Constitution, and echoed in international agreements including the United Nations Declaration on the Rights of Indigenous Peoples, which emphasises the need for free, prior, and informed consent. Section 35 of the Constitution affirms the treaty rights of Indigenous peoples, which include consultation regarding projects that would impact upon these rights.

Most observers, however, were pessimistic about the COTTFN’s prospects of success, and VICE Canada quoted the NEB as saying they weren’t going to be influenced by the proceedings:

We asked the NEB what effect the Chippewa’s court case was having on their Line 9B approval process. The NEB told us, “No other court has granted a stay of the Order, so there is no reason why the [National Energy] Board would delay its assessment of the leave to open application for Line 9B.”

In plainer language, the NEB is not waiting for the legal challenge to be resolved.

But the NEB also mentioned, “There is no time limit for the NEB’s review; we will take the time needed to make the right decision.” The NEB won’t say when it will give Enbridge the go-ahead, but it is saying the Chippewa’s case isn’t holding them back. Communities along the line, including COTTFN, are concerned oil could start flowing soon.

Lana Goldberg of Rising Tide Toronto, an organization closely watching and opposing Line 9 developments for years, says, “We’re expecting it to start up any day now.”

As VICE notes, it’s not just the COTTFN who have major concerns about Line 9:

Municipalities along the route have expressed concern over the safety of Line 9. After the NEB approved the project in February, the city of Toronto asked for emergency shut-off valves to be installed on either side of waterways. Montreal joined over 10 Quebec municipalities in asking for hydrostatic tests to determine the strength of the 40-year-old pipeline. Industry veteran Richard Kuprewicz estimated there is a 90 percent chance Line 9 will rupture. The asked-for valves have not been installed and hydrostatic tests have yet to be performed. Enbridge has indicated such tests could potentially damage Line 9.

Speaking to safety concerns, the NEB told us, “If the Board is not convinced that the project will be safe and operated in a manner that protects communities and the environment—Enbridge will not be allowed to operate that pipeline.”

And shockingly, that’s exactly what happened – at least for now.

In a move that pretty much nobody saw coming, the NEB imposed new conditions on Enbridge this past Thursday. From the CBC:

The National Energy Board has ordered the Enbridge energy company to conduct hydrostatic testing before it gets permission to start up its Line 9B oil pipeline.

The board said the testing, which will check for pressure and weak points, is necessary to show the public that the pipeline will be safe.

Crucially, the NEB didn’t order testing of the entire line. Only three sections of pipeline will need to by hydrostatically tested. (A hydrostatic test involves filling the pipeline with coloured water at a pressure which is higher than that it which it would normally operate, and examining the line for leaks or drops in pressure which would indicate leaks.)

If you’ve been reading carefully, you’ll notice that VICE quotes Enbridge as saying that hydrostatic testing could potentially damage Line 9. So perhaps it’s no surprise that they responded cautiously to the NEB’s decision:

Enbridge is figuring out its next steps, said spokesman Graham White.

“Enbridge is reviewing this and the other conditions outlined in the decision to determine what is required for compliance, scope of work and timelines,” he said in an emailed statement.

“Although conditions must be met before the pipeline can be operated, the granting of the Leave to Open is an acknowledgment of the thorough, detailed engineering analysis and real actions on safety and integrity that Enbridge has invested in this project over the past three years. We are confident that Line 9 can be operated safely and we will fulfil the regulator’s conditions.”

Which, when you parse it carefully, doesn’t amount to very much more than a vague sentiment of optimism on the part of Enbridge.

Now, this isn’t a radical reversal of fortunes for them. The NEB framed their decision as being about building public confidence in the project, and should Enbridge’s tests on the limited sections of the line prove successful, both Enbridge and the NEB are certain to proclaim Line 9 safe for operation.

Public pressure is the only reason that Line 9’s bitumen transportation hasn’t already started. This latest delay can only be interpreted as signifying that the NEB has been at least somewhat intimidated by public opposition.

There are a few things you can do to keep the pressure on.

You can contact your representatives in provincial and municipal government and demand that they keep the pressure on Enbridge.

You can contact candidates for this fall’s federal election and let them know that the issue of pipelines is going to be a major factor in who you vote for.

You can consider ways the project could be directly opposed if it does receive final approval. These folks (including Byron, whose song I linked above) barricaded themselves in an Enbridge pumping station near Hamilton in June 2013 to draw attention to the catastrophe-in-waiting which is Line 9 and to delay construction necessary to the project. There were only a few of them, but they got a lot of press and caused a non-trivial delay in Enbridge’s work.

(Bill C-51 came into effect on June 18, so my advocacy of direct action to stop the pipeline could be construed as a terrorist offence, as could your acting on that advocacy. Just an FYI. #BreakC51)

Most importantly, you can support the Chippewa of the Thames First Nation in their legal challenge. Depending on how long these hydrostatic tests take, the COTTFN case could certainly come into play. Information about the progress of the actual court case is hard to come by on the internet, although if you’re interested in helping the COTTFN with their court costs you can donate to their Fundly here.

The case is an important reminder of the intersection between environmental and Indigenous causes. As with numerous tar sands extraction projects across Canada, First Nations are taking the lead in defending their territories and trying to hold the government accountable for its actions in court.  The use of their territories and resources without their permission is part of the ongoing process of colonization which is the economic foundation of this country.

The recent Truth and Reconciliation Commission report on the residential schools system concluded that “The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their land and resources.” And as we can see with pipeline projects like Line 9, that genocidal extractive policy continues right up to the present day.

That’s why it’s pivotal that we stand in solidarity with First Nations as they resist this potentially disastrous pipeline project.

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The recent decision by NEB about hydrostatic tests comes after a citizen initiated campaign that saw 23 Quebec municipalities and the Greater Montreal Area sent motions to NEB asking for those tests.

NEB clearly responds to public opposition, they just did.

DeSmog Canada did a good recap up to COTTFN challenge: http://www.desmog.ca/2015/06/19/pipeline-regulator-orders-high-pressure-safety-test-enbridge-s-line-9b

    That’s a great point Christian – direct public pressure against regulators can be really effective. I’m worried though that the NEB is just going for the appearance of due diligence here – as the article you linked to points out, they didn’t explain their rationale for only ordering tests of parts of Line 9, or of why they asked for tests of those specific areas. The testing areas don’t include the most densely populated stretch of Line 9, which is the GTA – perhaps this is something Torontonians can push with their city councillors while the story’s fresh. Thanks for the link – I’m gonna try to stay on top of this story, it’s an important one!

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