Submission to the Senate Standing Committee on Transport And

Submission to the Senate Standing Committee on Transport and Communications Regarding Bill C-48, the Oil Tanker Moratorium Act April 8, 2019 | Gavin Smith, Staff Lawyer I. INTRODUCTION AND SUMMARY 1. West Coast Environmental Law Association (“West Coast”) supports Bill C-48, the Oil Tanker Moratorium Act. 2. Bill C-48 is about protecting a remote an ecologically important place from the introduction of a risk that does not currently exist there, namely the introduction of bulk crude oil tanker traffic. Crude oil tankers do not ply BC north coast waters because of a half-century of regular and impassioned efforts by Indigenous nations, northern communities and supporters throughout BC and Canada. 3. West Coast will limit submissions to two areas that we hope will offer useful context to the Committee as it considers Bill C-48: i. The history of the BC north coast oil tanker moratorium dating back to the 1970s; and ii. Some other examples from around the world of oil tanker and vessel moratoria/prohibitions, enacted in domestic law for environmental reasons. 4. We offer this context to the Committee because we submit that it demonstrates the following: i. The current absence of bulk crude oil tanker traffic in Hecate Strait, Queen Charlotte Sound and Dixon Entrance (the “BC north coast”) is not by chance. Over the past 50 years there have been multiple proposals that could have brought crude oil tankers to the BC north coast, but this has not occurred due to the sustained work of BC north coast residents, as well as other British Columbians and Canadians, to protect the area. ii. The BC north coast oil tanker moratorium is not a new measure. Rather, a federal policy moratorium on crude oil tankers in BC north coast waters was announced in the early 1970s. Although this informal moratorium was not legally-binding, it has resulted in de facto protection of the BC north coast from bulk crude oil tanker traffic. Bill C-48 emerges from that unique history and reflects the federal government’s commitment to legally “formalize” that longstanding policy. iii. The oil tanker moratorium that Bill C-48 seeks to formalize is not targeted at oil from Alberta. The BC north coast moratorium originated and has been upheld over time to protect the region from proposals that would have involved tankers carrying American crude oil, as well as crude oil from other international destinations, and it has operated in tandem with a moratorium on development of BC’s offshore petroleum reserves. In other words, the BC north coast crude oil tanker moratorium is about protecting the BC north coast from the risks posed by crude oil tankers, regardless of where the oil in such tankers might originate. iv. Bill C-48 is not alone. Other countries (and indeed Canada itself) have used domestic laws to implement tanker or general vessel moratoria/prohibitions for environmental reasons. Bill C- 48 is a valid exercise of Canada’s jurisdiction, and suggestions that the moratorium will harm Canada’s international economic or legal reputation are difficult to reconcile with the presence of other international examples of this approach. II. HISTORY OF THE BC NORTH COAST OIL TANKER MORATORIUM 5. After the Enbridge Northern Gateway project was proposed, the federal government announced in 2009 that there was no crude oil tanker moratorium policy on the BC north coast (while acknowledging that Canada does maintain a policy moratorium on petroleum exploration and development in BC – discussed below). Canada further stated that previous federal reference to such an oil tanker moratorium had been in error.1 6. Ultimately, any argument about whether a BC north coast crude oil tanker moratorium policy existed in 2009 is moot, because a policy moratorium was not legally binding in any event. 7. What is relevant in the historical account below is that, over many decades, the federal government repeatedly made and upheld policy decisions to keep crude oil tankers, and crude oil development generally, out of the BC north coast. What is equally clear is that these decisions were made in response to repeated indications from the public that risks posed by oil tankers were not considered to be acceptable in light of the existing ecological, cultural and economic values at stake in the region. BC North Coast Moratorium Announced in Response to Oil Tankers from Valdez, Alaska 8. Following the discovery of oil in Prudhoe Bay, Alaska, plans were advanced beginning in the late 1960s for the Trans-Alaska Pipeline System (“TAPS”), with a marine terminal in Valdez, Alaska. The potential navigation routes of TAPS crude oil tankers, and the spill risks that they would pose to the British Columbia coast, became a concern of both provincial and national importance in Canada. 9. A House of Commons Special Committee on Environmental Pollution, chaired by BC back bench Member of Parliament David Anderson (later a federal Cabinet Minister between 1993-2004), was established in 1970 and held hearings into the proposed TAPS oil tanker traffic.2 10. Also in 1970, Mr. Anderson and the Canadian Wildlife Federation, along with American environmental groups, launched litigation in the United States seeking to enjoin the American Secretary of the Interior from issuing permits required for the TAPS, on a number of grounds.3 11. In February 1971, the British Columbia Legislature unanimously passed the following Motion: That this House expresses to the Federal Government their deep misgivings over the ecological disaster which will engulf the coast of British Columbia following the construction of a trans-Alaska pipe-line and attendant supertanker transport of oil off the coast of British Columbia. We ask the Federal Government to use every available resource at their disposal to persuade the American Government to use alternate methods of transporting crude oil from Alaska to the United States.4 12. In June 1971, the Special Committee on Environmental Pollution reported as follows: West Coast Environmental Law | 2 In summary, your Committee concludes that the establishment of the proposed oil tanker route would result in severe environmental damage and substantial economic loss to Canadians. The Committee notes with approval the current discussions between the United States and Canadian governments on this subject and urges the Canadian government to oppose vigourously the establishment of the proposed tanker route between Alaska and Washington State.5 13. In this context of growing pressure on the Canadian government, Mr. Anderson recounts his personal involvement in a policy commitment made by Canada in 1971 to “a ban on crude-oil- carrying tankers from the waters off Canada’s north-west coast” based on support “from residents of the coast, from First Nations and from Canadians across the country”6: A Canadian government ban on all future traffic was important to my lawsuit, as it would demonstrate that Canadian objections were, on the one hand, not restricted to me and the Canadian Wildlife Federation, which had joined me in the suit, but to Canada generally. Second, it would show that the Canadian objections were not restricted to the American tanker traffic from the port being built at Valdez, Alaska, but applied to all tanker traffic, regardless of origin. [Prime Minister Pierre Elliott] Trudeau did not take the decision lightly. He had invited me to his office the evening he made the decision… So that evening, I went to his office with some trepidation, not sure what his decision would be… The ban was announced, a ban that has been honoured by every subsequent prime minister, Stephen Harper excepted.7 14. On May 15, 1972, the House of Commons unanimously passed the following Motion: That this House herewith declares that the movement of oil by tanker along the coast of British Columbia from Valdez in Alaska to Cherry Point in Washington is inimical to Canadian interests especially those of an environmental nature. And further, that this resolution be forthwith transmitted to the Government of the United States of America in order that that government be apprised of the concern that the House of Commons of Canada has about the proposed movement of oil.8 15. The federal oil tanker moratorium policy on the BC north coast was referenced in various federal statements and documents over the years, for example: i. In 1986, an Assessment Panel created jointly by the BC and federal governments stated in its report that “In 1972, the federal government imposed a moratorium to prevent crude oil tankers travelling through the Dixon Entrance, Hecate Strait and Queen Charlotte Sound enroute from the Trans-Alaska pipeline terminal at Valdez, Alaska”;9 ii. In 2004, Natural Resources Canada issued Terms of Reference to a federal Public Review Panel that stated “In 1972, the Government of Canada imposed a moratorium on crude oil tanker traffic through Dixon Entrance, Hecate Strait, and Queen Charlotte Sound due to concerns over the potential environmental impacts”;10 West Coast Environmental Law | 3 iii. The Library of Parliament legislative summary for Bill C-48 states: “The moratorium is in keeping with a 1972 federal government policy decision to impose a moratorium on crude oil tanker traffic through Dixon Entrance, Hecate Strait and Queen Charlotte Sound.”11 Negotiation of an Oil Tanker Exclusion Zone 16. The litigation pursued by Mr. Anderson, the Canadian Wildlife Federation and other groups ultimately resulted in an injunction in 1973 against the US Secretary of the Interior issuing right-of- way permits for the TAPS, based on non-compliance with technical aspects of the Mineral Leasing Act.12 However, the US Congress quickly stepped in by passing the Trans-Alaska Pipeline Authorization Act to address the issues and authorize prompt construction of the TAPS.13 17.

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