Oil Tanker Moratorium Bill
Message from Commons--Motion for Concurrence in Commons Amendments--Debate
June 20, 2019
I thank you, colleagues. As you know, I’ve not been able to be with you for a few days, so I haven’t had a chance to put other views in terms of this bill in front of you. I will try to be brief.
I want to say firstly that I remember the beginning of this session in 2015. I said to so many people, I have never been more optimistic for the future of Canada and our federal institutions. I stand before you today, at what may be the very last time I speak in the session, and say I have never been more disappointed. All the promise has been turned.
My voice may waffle once or twice during this speech, but please don’t think that that is an emotional response. That actually is a consequence of some physiological things which have kept me away from the Senate for the last few days.
Second, let me say that I thank Senator Downe for his speech yesterday on this bill —
— for giving us historical perspective. I really do appreciate that.
I would like to repeat his quotation from John A. Macdonald.
There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatsoever were it a mere chamber for registering the decrees of the Lower House.
Turning to Bill C-48 in particular, I’m afraid that we are not going to take advantage of our authority and duty to do just any one of those three things: amend, oppose or postpone.
The sad thing about our deliberations on Bill C-48 is we never came to deal with the real issues that are affecting the northern coast of British Columbia.
That happens with some bills. Particularly it happens with bills whose titles give you the wrong idea of what the bill is. It takes a while before you catch on to just how misleading that is.
Sometimes you have to listen to quite a few witnesses and do your own research before you begin to discover, my goodness, this is a magic trick. Someone is saying, “Look over here; here is the bunny, but over here something is really happening.”
Bill C-48, as one person said to me when I was talking to senators about this, is shooting at the wrong duck. It’s as simple as that.
We ended up talking and arguing over hypothetical issues fuelled in part by some dynamics at the committee — we all agree — but nevertheless, on the substance, we were debating, arguing, expostulating about hypothetical issues.
The real issue is oil spills happening now.
I remember at committee I asked a question of Chief Slett of the Heiltsuk Nation. She is one of the Coastal First Nations. She was appearing on their behalf. I asked her what the Senate could do to help her achieve her goals. She answered, and I quote from the transcript of the committee:
We have developed a proposal, a vision of an Indigenous marine response centre.
Now, a response centre is talking about what happens if a spill occurs. Then what do you do? Do you have the capacity? Do you have the knowledge? Do you have the tools to respond and to follow up and to take lessons learned and to adjust your policies and practices so you have something in place if, heaven forbid, it ever happens again. That’s the real issue.
Her written testimony said, on page 1, that Canada’s existing marine oil spill regime is inadequate to safeguard Heiltsuk waters and address the full range of marine oil spill impacts. That was what they were after, the full range, not just very large crude carriers. There have been no very large crude carriers, in that area, but there have been oil spills. With one oil spill, two people died. Another one damaged clam fisheries and shut down the cannery, not to mention other impacts they have yet to ascertain fully.
Again, she said that Canada’s marine oil spill regime is not adequate to address oil spill impacts for First Nations. That was the issue.
So why don’t we listen? I’m rather like Senator Patterson saying earlier, why do we not listen to our Indigenous peoples? I heard examples of that in our discussions today on Bill C-91 and Bill C-92. Why don’t we listen to our Indigenous peoples? They tell us what is wrong. They tell us what they need. We simply do not hear them. What chance does reconciliation have if that’s how we — especially senators — respond?
Here is another example on Bill C-48, it’s the Metlakatla First Nation, which is also in that area, although further north. The minister appeared before our committee and said they were in favour. So they wrote a letter and said, “No, we’re not.” Then they said, “We are very concerned. If we do not get it right, we could be missing an opportunity to ensure marine protection.”
Marine protection is all about spill response and prevention of spills. That was the real issue. It wasn’t about doing an impact assessment on something that hasn’t happened yet. It was on something that has happened.
They wanted a review of the risks of existing shipping. It’s not something that doesn’t exist, a hypothetical, which are these big oil tankers that are the subject of Bill C-48. He wanted an analysis of needed marine response prevention and response capacity, protections for traditional and sensitive areas and an understanding of the risks.
Why would we not listen to them? They said that on May 13.
They wrote again on June 5:
We are writing to you a third time. Once more, we express concern multiple times about the existing shipping and current prevention and marine response.
Why didn’t we hear that?
As you know, from my second reading speech and publications, I have been against this bill from the beginning, partly because there are no oil tankers in that area. There will be no oil tankers in that area until there are oil handling facilities in that area. There will be no oil handling facilities in that area until they’ve been approved. We’re talking a hypothetical, but we do have oil spills there.
If you don’t trust the elected or appointed officials about keeping oil tankers out of there, remember that the very large crude carriers for oil carry up to 2 million barrels. At roughly $55 a barrel, which is more or less what it is hovering at now, that’s $110 million in every cargo.
Trust me, commercial interests will see to it that none of those vessels waste their time where there are no facilities to load or unload. Commercial interests will keep them away. We do not need this bill.
I really think that we have failed in our duty if we let Bill C-48 go. We will have failed in our duty to regions; there is no doubt about that. I’ve expanded on that and others have as well. I won’t repeat that today. However, I think we’ve also failed in our duty to minorities, not the least of which are smaller provinces. Even more important in this day and age is our responsibility to the minority that Indigenous peoples endure in our society.
We can be so proud of ourselves running around saying, “No, no, we want to treat you like a peer. What did you say? I didn’t hear you. Oh, yes, but I want to treat you like a peer.” We’re being hypocritical.
Honourable senators, I want you to consider our attitudes and maybe slow down a little bit. We don’t have to do this. Senator Dalphond, I’ve seen some of your email responses. You say the election has decided it. Fine. We don’t need the bill because there will not be an oil tanker, commercial interests to keep them away. Nothing is going to change. Let’s just postpone it then.
We’ve boxed ourselves in with the amendments we put forward, which were out of order and out of scope. If we simply reject this message, it will hang up now because the House of Commons has recessed for the summer. At least to that extent, it would be postponing it. However, I will say that if someone to put forward a motion to send this message to committee, I would support that. Maybe not that committee; maybe another committee, any committee of this house to look at the real issue. I don’t think we got all the evidence or even gave our thoughts to the real issues that are being asked to be addressed.
If we adjourn this debate today, I would support that motion as well because I think in this case, postponement hurts no one. It will change nothing. There will be no oil tankers in that vicinity for the foreseeable future.
Again, we would buy ourselves time and maybe — just maybe — reclaim some of the high ground around doing our job as a sober second thought.
The one thing I cannot do is vote for this message in good conscience. I will not vote for this message. No amount of public opinion should dictate to me what my job is. My job is to be the elder statesman, is to be proof from public opinion and to hide behind the Senate’s reputation or a particular group’s reputation in the Senate is a dereliction of duty.
I think we have to stand because you are appointed. We have deference. In this case, when you have got the issue wrong and you got distracted by magicians’ tricks, we should simply wait a little while. Let’s all cool off, if you can do that over a summer. Let’s all take a break and then come back and reassess the issue that really needs to be assessed in order to satisfy the needs of what I have been calling the orphan coast, which is the northern and central coast of British Columbia.
I’m sorry, Senator McCoy, but your time has expired.
Are you asking for five more minutes?
Only if somebody would like to ask a question. Other than that, I thank you all very much for listening to me. I hope you search for your better nature before you cast a vote this afternoon.
Honourable senators, I rise today to speak to the message received on Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast.
I would like to associate myself with Senator McCoy’s remarks. Senator McCoy is a lifelong respected lawyer in the energy field. We should heed her words.
I agree with her that the bill is essentially a cop-out. Canada’s much touted $1.5 billion Oceans Protection Plan neglected the northwest coast and will continue to neglect the northwest coast. This bill is a sop to those who are concerned about protecting that environment.
Developing oil spill response capacity, as we have done on the southwest coast, as we have done in the Atlantic, funded by industry or led by Indigenous groups who are willing to do so, is clearly the way to go and the way we’ve gone in other parts of this great country.
I’d like to focus today on Senator Pratte’s comments on this bill. I was struck by them. He told our chamber that:
The tanker ban was not mentioned in the Liberal’s national platform. The commitment was made in British Columbia but was rarely mentioned in other parts of the country. Therefore, it cannot be said that Canadians as a whole voted in favour of a tanker ban on the northern coast of B.C. This election commitment is not equal to cannabis legalization or infrastructure spending. The government’s mandate on this matter is unclear and weak.
I find it astounding that we are standing on the brink of passing a piece of legislation that, as Senator Pratte has put it, “has become a national unity issue.”
The Canadian Encyclopedia states that:
The Senate’s purpose is to consider and revise legislation, investigate national issues, and most crucially according to the Constitution — give the regions of Canada an equal voice in Parliament.
This is confirmed on the Senate’s own website, which describes our chamber’s role as this:
Created to counterbalance representation by population in the House of Commons, the Senate has evolved from defending regional interests to giving voice to underrepresented groups like Indigenous peoples, visible minorities and women.
In both instances, there is great emphasis placed on our role to represent and defend regional interests. Bill C-48 is a bill, sadly, that pits Indigenous groups against Indigenous groups, regional interests against regional interests.
Speaking of Indigenous organizations, in a question to Senator Woo yesterday, I asked him if he was aware of a letter sent on June 13 to Senator Sinclair from President Clayton of the Nisga’a Nation rejecting Senator Sinclair’s amendment, saying that it does not address any of the critical issues the Nisga’a Nation has continued to raise.
I think it’s important to put her words on the record today. She tells Senator Sinclair that:
Unfortunately, the amendment does not address the core issues raised by the Nisga’a Nation during Committee hearings as outlined in my letter to Senators on June 10th and attached here again for your review.
Not only does the amendment not address any of the critical issues the Nisga’a Nation has continued to raise, the amendment utilizes language in sections 3.1 and 3.2 that is of significant concern as well.
The Nisga’a Nation has long opposed the use of this version of non-derogation language in federal legislation on the basis that it really has no effect. No legislation ever could abrogate or derogate from constitutional protection. It is legally ineffective but gives the false impression of doing something for Indigenous peoples. As far back as 2007, the Senate Committee on Legal and Constitutional Affairs considered this language and, in its report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights”, endorsed a more appropriate format of non-derogation clauses related to Aboriginal and treaty rights.
And that was an initiative of former Senator Watt, which we should not forget.
In addition, the Government of Canada has included the version of non-derogation clause that the Senate Committee, the Nisga’a Nation, and other modern treaty holders support, in Bills C-91 (Section 3) and C-92 (Section 2) of this session.
Therefore, we would ask that you replace section 3.1 of your amendment with the non-derogation clause from those Bills:
Rights of Indigenous peoples.
3.1 This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
We would also respectfully request that your proposed section 3.2 be removed entirely. While we do not doubt that it is well intentioned, and we know that it is copied from Bill C-68, in our view this clause is not consistent with the existing jurisprudence, and at worst, proposes to give legislative authority to unconstitutional infringements of Indigenous rights. Any adverse effects on section 35 rights must be justified in accordance with Sparrow and not merely “considered” by the Minister. In effect, s. 3.2 is, inadvertently, a “derogation” clause.
We believe the insertion of the appropriate section 3.1 language and rejection of section 3.2 do not in any way detract from the salutary intent of your amendments and we hope that you will consider these important revisions.
Honourable colleagues, in closing, I also want to commend Senator Downe for essentially urging us to have the courage to do what is right and to exercise the independence that we should all cherish in this chamber.
It’s clear we have failed to resolve the national unity issues that Senator Pratte and others in this chamber have pointed to. As critic of this bill, I would urge you to vote against this message. It is my hope that the attention the Senate has drawn to this issue will help voters decide the path forward in October. Thank you.
Honourable senators, I didn’t expect to speak to this today. I never had the opportunity to finish my remarks last week, so I thought I’d finish them today.
Although I have a few more minutes to play with, I’ve added a couple of pages.
As I was saying, we keep hearing about the Nathan E. Stewart as an example of what can happen on the north coast of British Columbia. The Nathan E. Stewart was an American-owned and -operated articulated tug-barge that went aground in 2016. It lost a lot of fuel and made an environmental mess. Senator Jaffer, in her speech delivered by Senator Woo, used the delay in response time as a reason not to allow oil to be shipped out of northern British Columbia. This is faulty reasoning.
First, there is nothing in this tanker ban that would have prevented an accident like this from occurring with a single-hulled vessel. Second, and more notably, if northern B.C. had already been exporting heavy oil, there would have to have been a spill response centre in the area, just like those that exist in the Lower Mainland, the Strait of Canso, the Bay of Fundy or on the St. Lawrence River. The present lack of any spill response station in northern British Columbia is an omission that should be addressed, as there is nothing to prevent the same type of laggard response to any future grounding of any other single-hulled vessel that plies the northern British Columbian coastline.
The grounding of the Nathan E. Stewart is actually an argument for exporting oil in the area because of the response infrastructure that would be put in place in conjunction with the oil export industry. We can make private industry pay for it, and they would pay for it.
Bill C-48’s proponents also claim that the weather and ocean conditions in northern British Columbia are so extreme and dangerous that large tankers should be banned. More dangerous and wild than the North Atlantic? Really? How many winter storms with freezing spray do vessels battle through on the West Coast? How much ice-laden water do they have to navigate through during late winter and early spring, with or without the aid of icebreakers, on the West Coast?
Senator Harder advised us that this was the fourth most dangerous stretch of water in the world. The Americans have been shipping oil through these waters since the 1970s. If there were a safety issue peculiar to the marine conditions in this area, surely there would be some evidence of it after half a century.
Next they argue that the ecosystem of northern B.C. waters dictates that it be treated differently than its East Coast counterpart because of the variety of whales and other sea mammals and birds. I’m all for protecting habitat and sea life, but are the humpback whales that feed for four months in the nutrient-rich waters of the Bay of Fundy less deserving of our protection? Are the belugas in the St. Lawrence estuary and the right whales in the Gulf of St. Lawrence expendable in the eyes of this government? There are over 20,000 Pacific grey whales but fewer than 500 North Atlantic grey whales, the most endangered whale in the world. Why the double standard? How is this consistent with proper environmental management? The answer, of course, is that it is not consistent. This entire scheme is just another example of the perpetual virtual-signalling, combined with an ad hoc approach to governance, that has been the hallmark of the Trudeau government since coming to office.
The apologists for this legislation then refer to admittedly legitimate concerns that the West Coast First Nations have expressed for their salmon fishery. Again, I share any reasonable caution regarding the importance of maintaining viable and productive fisheries wherever they exist. But I repeat: The experience of the East Coast proves that these risks are manageable and indicates that these concerns are exaggerated and too often politically motivated on the West Coast.
Nothing better exemplifies the hypocrisy on this issue than the refusal of the Trudeau government to listen and acknowledge the efforts of First Nations communities living in northern B.C. are making to stimulate economic growth and secure badly needed prosperity. Unemployment in some of these communities is over 90 per cent.
The Eagle Spirit proposal would carry petroleum by pipeline from Alberta to the deep-water ports in northern British Columbia. It would create thousands of well-paying jobs, establish a permanent revenue stream for these communities and be of great economic benefit, not only to B.C., Alberta and Saskatchewan, but to the entire country. This initiative is supported by all of the many First Nations along the proposed route, a very important distinction that Senator Harder completely ignored in his speech when he unfairly dismissed these efforts to create some hope and prosperity for their communities. Perhaps Senator Harder and my colleagues opposite, as well as the Government of Canada, should speak and listen to a wider circle of people than they do at present.
The Trudeau government would rather leave these communities in poverty. They are content to smugly leave them with no hope. They would rather legislate against our wealth-creating petroleum industries in Alberta and Saskatchewan, and if the many First Nations along the proposed route lose out, that apparently is just fine with them. I say to my colleagues opposite: Think about that when you are expected to blindly acquiesce to the short-sighted and anti-Canadian legislation.
The Trudeau government will make the excuse that nothing can be resolved because some First Nations have diametrically opposed points of view. But there is nothing here that couldn’t be resolved with a modicum of common sense and a bit of leadership from the federal authority.
One discernible difference between the northern and West Coast First Nations on this issue is that while the former haven’t received a penny from anyone for their efforts, the campaign to stop pipelines and tanker traffic has been financed by over $65 million of foreign money, primarily from American environmental groups who are trying to shut down the Canadian petroleum industry.
In the meantime, American refineries buy our oil at rock-bottom prices while shipping their own oil out at world prices. The Trudeau government sides with interfering American environmental groups at the expense of our own country and chooses to abandon the First Nations most directly affected.
Finally, the supporters of Bill C-48 will declare that a pipeline cannot be safely built and maintained from northern Alberta to the northern B.C. coastline. If the Americans can build a pipeline 50 years ago from the Beaufort Sea along the spine of Alaska to the southern coast and operate it safely for all of that time, surely Canada is capable of building an even better and more modern pipeline half a century later.
I would be remiss if I didn’t mention the reverential concerns expressed for the Great Bear Rainforest, that magical mystical place unknown to countless generations of Canadians. This name, of course, is a fabrication. The First Nations people from the area whom I met and listened to scoffed at the designation. They informed me it was dreamt up a few years ago by an environmental activist from Vancouver while sitting in a café in San Francisco.
A search quickly revealed this was in fact the case. When I asked them what they actually called it, they told me, “We always called it the woods.” I said, “What a coincidence. That’s what we called the forest in Nova Scotia as well.”
I’m all for protecting and preserving natural habitat and wildlife, but we have a lot of forests and bears in Nova Scotia, and there has never been any indication that the tanker traffic that surrounds Nova Scotia has ever had a deleterious effect on either the woods or the bears.
The land footprint in northern and central coast of B.C. alone is three fifths of the size of the entire province of Nova Scotia. I’m sure the bears will be fine.
All of the arguments put forth for prohibiting normal tanker traffic on the northern B.C. coast are weak, unconvincing and are being bankrolled by inappropriate injections of American money funnelled into our public discourse. Any self-respecting Canadian who believes in the integrity and sovereignty of their own country should take issue with this unacceptable interference in domestic Canadian affairs.
What our committee heard is that Bill C-48 will be devastating for Alberta and Saskatchewan’s economy and for the hundreds of thousands of industry workers and their families pushed into unemployment lines or on to welfare. These job losses are being felt across the country. We have great natural advantages on the northern West Coast. We should be exploiting these advantages for the benefit of all Canadians and not putting arbitrary, unnecessary and unfair restrictions on our ability to compete on world markets.
We import foreign oil from countries with far lesser environmental standards. The government will prevent our oil, which is a premium product, developed at world-class standards, from getting to market where it would displace products produced at lesser standards. We can’t get pipelines built, so oil producers are forced to increase transportation by rail at high risk to the environment and safety. Just ask the people of Lac-Mégantic if they think that’s a good idea.
Allowing the deep-water ports of northern B.C. to export petroleum would also enable Canada to reduce its emissions because these ports are able to accommodate the largest crude oil vessels afloat. The Very Large Crew Carriers, the VLCCs, and the Ultra Large Crew Carriers, the ULCCs.
Professor Amit Kumar from the University of Alberta, who is an energy engineer, gave convincing testimony on this matter. As the head of the university’s research program on energy and environmental systems engineering, his team did a comprehensive study on the entire chain of energy production, extraction, processing, transportation, conversion and end use. They mathematically proved that the most efficient, profitable and environmental-friendly way to move bitumen or synthetic crude oil is by tanker and the larger the better.
Unlike the Lower Mainland and many other Canadian points that presently handle oil tankers, the northern B.C. ports can easily handle the ULCCs, the largest crew carriers in the world. The largest ships would allow Canada to reduce the emissions created in the export transportation of heavy oil, which something I’m sure all Canadians would agree with.
Both Prince Rupert on the West Coast and Point Tupper at the Strait of Canso in Nova Scotia have the ability to easily handle the ULCCs. This is a huge advantage for Canada that we should be exploiting instead of squandering.
If the government is so concerned about the environment, why isn’t it doing more to encourage the export of our oil in the largest vessels available?
Why does the government have such little faith in the regime they proposed in Bill C-69, a regime meant to provide rigorous evaluation of major projects, including proposed ports in northern B.C., and that would subject them to a review of a wide range of factors? I was under the impression that Canada’s new environmental regime was meant to ensure that a port project would be examined on a scientific basis. Instead, our industry and best interests are being treated in an ad hoc and subjective manner.
Some senators were optimistic that some form of amendment could fix the bill. Senator Simons and Senator Patterson championed an amendment to create a corridor for tanker traffic. I commend their efforts, but I was there when the minister was asked clearly about the government’s willingness to accept an amendment that would provide for a corridor. “The answer is no,” he said bluntly. He was clear there would be no compromise on this bill from the government, and there hasn’t been.
As Senator McCoy said previously during her speech at report stage:
No vote in our national Parliament should target a single region so directly and so adversely.
There are better options than Bill C-48.
As Senator McCoy also suggested, why doesn’t the government increase the accident response capacity or declare such zones as a PSSA, particularly sensitive sea area under international convention? Or work with local communities and First Nations to ensure the protection of these areas without outright targeting the economic heart of oil-producing provinces?
Better still, let the voters decide. Unlike in 2015, let the Liberal Party put this proposal in their platform, at least find a better solution. Undermining our most important industry, dividing the nation and threatening national unity is not the way to proceed.
Would the senator take a question?
Sure.
Could you point me to the historical references backing your claim that the name “Great Bear Rainforest” was chosen at a café in San Francisco?
Well, two things; testimony from the First Nations who live in that area and who are familiar with the area; and second, I went online and found all kinds of references. If you can trust what you read online — there was more than one source. I spoke to the First Nations people from the area and they confirmed it. In fact, they brought it up.
Would the senator be so kind as to send me those references so that I can check them myself?
I’ll also send you a copy of my speech.
Would the senator take another question?
I listened carefully to your speech, and I have to wonder what you’d say to the nine Indigenous nations living on the B.C. coast that support the moratorium you denounced. The only nations you didn’t mention in your speech were those that support the moratorium — those that are concerned about the risk of a spill. Even if the possibility of a spill is low, it still exists.
I’d also like to hear your response to the valid argument that the only communities that would be affected by a potential spill are the coastal nations that rely on fishing.
How can you ignore this real risk and how can you also ignore the fact that 35 per cent of those living on the B.C coast are Indigenous? You seem to be ignoring a significant number of Indigenous people in your argument for why this moratorium makes no sense.
I’m sorry, Senator MacDonald, but your time has expired. Are you asking for time to answer the question?
I’m used to people saying “no,” so it’s not a problem.
Senator MacDonald, are you asking for five more minutes?
I’ll answer the question if people want me to, but it doesn’t matter to me one way or the other.
Is leave granted, honourable senators?
First, I don’t agree with your interpretation of my remarks. I will remind you that I spoke to this last week as well. I did mention the 35 First Nations, or so, along the proposed route who support it. I also did speak to the people who fish along the shore, and I said that the evidence of managing fish stock on the East Coast of Canada — I said this last week. The West Coast fishery is about $350 million worth of value, and the East Coast fishery is about $3 billion of value. It’s a huge fishery, much more substantial than the West Coast fishery, yet we manage that fishery. We manage the movement of over 280 million metric tonnes of petroleum, while they only manage 6 million metric tonnes on the West Coast.
In terms of concern for the West Coast Indians who deal with the salmon fishery, I have empathy for them and I understand because we have the same concerns on the East Coast. But we manage them, and I am saying that the evidence is fairly straightforward that we can manage both industries successfully.
Senator Miville-Dechêne, do you have a supplementary question?
That said, Senator MacDonald, I repeat my question: How do you respond to the fact that there is a potential risk? A spill could happen, and the 12,000 members of Indigenous nations that rely on the fishery don’t want to take that chance. Albertans aren’t at risk of an oil spill, but the 11,000 Indigenous people who live along the coast, are. The situation on the East Coast isn’t really the same.
Risks are risks. It’s all about managed risk and the ability to manage risk. When it comes to managing petroleum in conjunction with managing the fishing industry, the experience on the East Coast of Canada makes it fairly clear to me that these are risks that can be managed. The idea that we don’t have pilots or technology or all the things one would expect on the West Coast to manage both when we have them on the East Coast is just not believable. Of course they can manage it on the West Coast.
