Monday, March 10, 2014

EPIC's epic NEP - Part 2

Con "fixer" Bruce Carson and Lib National Campaign Co-Chair Daniel Gagnier worked together on a national energy program for industry lobby group, the Energy Policy Institute of Canada, and have both given speeches and published numerous papers in support of it
Former EPIC president, now Senator, Doug Black was duly grateful :
"I would like to acknowledge our three vice chairs that presented our work to the energy ministers: Bruce Carson, Gerry Protti and Daniel Gagnier."
In light of EPIC's subsequent presser in 2012 (h/t Hugh) that :
"Natural Resources Minister Joe Oliver announced legislative changes that would put EPIC's recommendations into federal law. Regulatory changes within omnibus Bill C-38 reflect recommendations of EPIC surrounding regulatory streamlining." 
... I thought we might take a look at a few of EPIC's regulatory streamlining recommendations and how they have shaped current Con policy on property rights, pipelines, public participation, and First Nations.

EPIC itself has been offline since last Thursday's press coverage of new RCMP allegations against former vice-chair Bruce Carson.
Tuesday Mar 11 Update :  EPIC's website is now a single blank page with a note saying HACKED BY and a very long name which seems to be Turkish.
Tuesday update #2 11am : EPIC website back up, listing same leadership as before. 

Let's start with Property Rights under the push for tarsands-to-tankers pipelines. 
Theirs, not yours. 
EPIC : Canadian Energy Strategy Framework, Page 31 :
"It is a well established common law principle that a right to mines and minerals includes the right to do all things necessary to work and recover the minerals. In other words, since a grant of mineral rights is essentially meaningless unless accompanied by the right to actually recover those minerals, it is assumed that the grant of mineral rights includes the right to recover the minerals as well.
Therefore, since an initial grant of mineral rights also conveys the right to recover the minerals, the regulatory scheme should focus on how these rights are exercised, not whether they can be exercised. Otherwise, the initial grant of rights would be rendered meaningless.

This does not suggest that a right to recover minerals provides the rights holder with a free pass to recover those minerals in any way they see fit, regardless of the environmental or social implications. It does suggest, however, that if recovering the minerals will necessarily result in certain and acceptable environmental effects, then the initial grant of rights should be interpreted as impliedly authorizing those effects."
I had never considered that mining or mineral rights automatically pre-approves accepting their resulting effects on the environment - as say the results from fracking - but EPIC cites the Aberta courts and Supreme Court of Canada as backing them up on this.
For what this looks like in real life, see: Alberta Mother Fights Five Neighbouring Fracked Wells (h/tMogs)
Back to EPIC :  
"If the regulatory scheme determines whether or not each resource development should be allowed to proceed based on equal consideration of environmental, social and economic factors, then the scheme is failing to take into account the previous acquisition of property rights and is disregarding long established legal principles relating to private property. "

Consideration of environmental and social factors subordinate to corporate rights to private property!
EPIC then extrapolates a further extension of those rights in getting product to market.

 "... just as there is a presumption that mineral rights-holders should be able to recover the minerals in question, there should also be a presumption that mineral rights-holders should be able to transport recovered minerals to market, such as through a pipeline. Otherwise, the mineral right would lose its inherent value. 
This does not mean that all proposed pipelines should automatically be approved without examination of environmental and socio-economic considerations. What the presumption does mean, however, is that the need for a pipeline required to move resources to market should be evident in the proposal itself, and that any proposed pipeline project that aims to connect a new supply basin to market must be evaluated with the understanding that a pipeline (though not necessarily the specific pipeline project being proposed) should be allowed to proceed to allow producers to access downstream markets.
Otherwise, the upstream mineral rights become worthless.
With respect to most renewable resource projects, pipelines, transmission lines and nuclear generation projects, similar logic should also apply.
Just as the initial grant of mineral rights creates a presumption that those rights
should be developed, a preliminary determination by elected public representatives that a renewable project, pipeline, transmission line or nuclear generation project is needed and in the interest of the province or country ought to create a presumption that the development should be allowed to proceed."
Wow. I wonder if that would obtain under legal challenge or if, as Steve would say, it's a "no-brainer".
And speaking of Steve
"Statements from the Prime Minister claiming that Canada should become an “energy superpower,” and his recent promotion of Canada as an energy supplier to China, are examples of the kind of leadership required, at least at a general policy level, to provide clear signals of the government’s intent to officials, regulators, industry and other governments."
Strong stable Steve gets a cookie. A fortune cookie. Public regulators get the point.

Tarsands-to-First Nations-to-Tankers Pipeline, Page 24 :
"The federal government needs to take a proactive role in negotiations with First Nations to ensure the national interest is effectively represented. [Well hello, Jim Prentice!]  Almost all potential opportunities for market diversification require new or expanded infrastructure and the collaboration of First Nations."
Tarsands-to-tankers-to-China, Page 25 :
"China, Korea and Taiwan are seeking more secure supplies of oil and natural gas. Both the Enbridge Northern Gateway pipeline and the Kinder-Morgan expansion in Vancouver could help to meet this growing Asian demand, and there is clearly an opportunity for even further capacity development."
Public participation, Page 52
"Joint review panels are a unique aspect of environmental assessments in Canada that have created a plethora of legal concern and given rise to significant delays and accompanying costs with no apparent benefit to the decision-making process. 
In addition, joint review panel members are often independent from the regulators and are divorced from governments’ overarching energy policy goals.  
The federal government must develop regulations that restrict participation in federal EA reviews to those parties that are directly and adversely affected by the proposal in question. 
... determining whether increasing energy infrastructure from Alberta to the west coast is in the Canadian public interest, but once that policy has been determined it should not be revisited in specific project reviews. Regulatory proceedings for specific projects should focus on the merits of the project and the evidence on the record. The only third parties that should be allowed to participate in these reviews are those parties that have the potential to be directly and adversely affected by the proposed project."
... which is exactly what we got in the pipelines hearings in BC. 

So there it is - EPIC's word made flesh in the Environmental Assessment Act 2012.

I guess EPIC's bragging rights about their influence on government legislation for their 38 energy member organizations wasn't an exaggeration at all. They wrote it.

To you small and large L liberals. I'm sure it's royally pissed you off that I've tarred Liberal national campaign co-chair Daniel Gagnier for his work with Bruce Carson. 
I don't much care about Carson - he's gone as a fixer for Steve. 
What I do care is that we now have Gagnier, representing EPIC's views since 2010 and currently their registered lobbyist and President , as still shown at EPIC as of Friday, fixing up a tarsands agenda for Trudeau.

Thank you for reading.
EPIC's epic National Energy Program, Part one



the salamander said...

.. and these people call themselves .. Canadians ? ! ?
Not sure whether to laugh or cry.. in disbelief
.. pretenders.. certainly not glowing hearts ..

Lorne said...

Excellent investigative work, Alison, something the mainstream media seems to have little appetite for.

Anonymous said...

So when we eventually tire of Steve, they'll give us Justin instead. Not yet - just breaking him in to us now really.

Anonymous said...

Unfortunately the right to mine is enshrined and well established through mineral rights.

“…there should also be a presumption that mineral rights-holders should be able to transport recovered minerals to market…”

However this statement is clearly the construct of lawyers that cheekily projects this ‘right to mine’ to include that which was never part of the right in the first place as the transport of goods to market is a well established business risk and not a right. Even if rubber stamp Joe (Natural Resources Minister Joe Oliver) has put this in legislation it faces legal challenges on its face (prima facie) as well as any attempt to enforce it, especially through First Nations Territory who reject a pipeline.

As an extremely simplistic example say you own a large plot of land and I own one on the west side and I manufacture marketable goods on it. However the store in which I can sell my goods is directly to the east of your property. In order to get my goods to market I would have to deliver it 100 miles by road around your property, but if went through your property I could save 90 miles and drive only 10 miles to market; obviously a savings. Other than an agreement with you there is no precedent in common law or statutory law that would grant me access through your land without an explicit agreement with yourself. My right to produce goods or services does not automatically reserve or give me the right to market what I produce. (There exists no such presumption and this is what is being created right now under the Harper Imperium).

Unless of course in time of war or a national emergency where my goods were explicitly necessary in the best interests of the common good. This is precisely why the Harper government is calling ‘environmentalists’ ‘eco-terrorists’ and people who oppose the current method of getting oil to market ‘economic terrorists’ so that in effect they can invoke the kind of legislation needed to sideline native rights and environmental concerns. It’s like Bush jr. said either your with us or against us there is no middle ground or room for discussion with this fascist resource extraction coalition of the EPIC and the Harper Imperium.


thwap said...

Our whole political system is debased in this way.

Anonymous said...

In the prairie provinces, especially Alberta and Saskatchewan, the Province holds most of the sub-surface (mineral) rights. This is because the Gov't of Canada began to reserve mineral rights from land titles in October 1887, so most settlers on the prairies got surface rights to their land but not mineral rights. I don't know the situation in BC or other provinces. Indian Reserves which were surveyed before 1887 kept the mineral rights.

The federal gov't held on to the prairie province mineral rights until 1930 when transfer agreements were made with each of the three provinces.

I once read John Ballem's book about oil leases

I've retained very little, but the gist was that oil companies lease subsurface rights from the government and they usually write up standard contracts arranging compensation, etc., with landowners. So the contracts tend to favour the oil companies, unless the landowner can afford a good lawyer. My impression was that the provincial gov't would not be particularly helpful to the landowner.

I don't recall if Ballem dealt with environmental stuff in his book, but he probably did.

(This is not a homework assignment, it's a very detailed and dull read, and I only managed to plough through it because I was stuck on a moving bus for hours, and now my aging eyes could never manage it.)

Considering how crappy the Harper Conservatives are at writing legislation, I wouldn't take their interpretation of any law for granted without checking with an expert. But the oil industry has a lot of lawyers.

Holly Stick

Anonymous said...

Mogs, governments do have a legal right to expropriate land under certain circumstances. I don't know if they can do so for an oil pipeline. Even if they say they can, we all know Conservatives lie and bully a lot.

Anonymous said...

Expropriation usually happens when private property is acquired for public purposes, private foreign companies on the other hand making collectively billions of dollars in profit for bitumen not used by or for the Canadian public but shipped to the orient isn’t exactly a public purpose or use. This is why the current government is heavily involved in new-speak.

Look at Pierre Poilievre (pp) heavily engaged in telling us fraud in voting is everywhere and he cites a report by Harry Neufeld. Meanwhile Canada's chief electoral officer Marc Mayrand and author Harry Neufeld of said report that pp (poof pants) quotes to get his facts says "I never said there was voter fraud," Neufeld said in an interview. "Nor did the Supreme Court, who looked at this extremely carefully."* –pp is obviously well versed at using creative newspeak; the Harper governments modus operandi.

Another example of harper government newspeak; Pipelines are for public purpose and use therefore we can; “Expropriation is defined as the government’s right to take the whole or part of privately owned land for public use and benefit, upon the obligation to pay just compensation to the owner.”**

Another example of harper government newspeak; Profit for foreign and comunist petro companies is “…for a greater public use or benefit.”***

Prepare to be peppered with government newspeak creatively selling you oil exploration, development and offshore sales, as “as Canadian as hockey” (no matter the greatest benefits go offshore). Also it’s as patriotic as the national anthem and the flag, as much for the public good as highways, airports, schools and don’t forget hospitals, police and the Canadian armed forces. To be against the pipeline is simply un-Canadian and if you actually dare speak out about it or worse demonstrate against it you are nothing but a terrorist hell-bent on destroying Canadian values like hockey, oil and beer. If you don’t agree with Chinese nationals installing the pipeline and American veterans turned armed security arresting demonstrators and defending the patriotic Canadians right to shove the pipeline through, well you are just as un-Canadian as someone who dislikes Don Cherry and hockey night in Canada and don’t forget beer.

Yes anon you are right and the Harper Imperium’s newspeak is how they package and sell it. You can see that its very patriotic and Canadian to give our resources away and clean-up the mess for the foreigners later.





Alison said...

I just updated the post to say that EPIC's entire website is now a single blank page with a note saying HACKED BY and a very long name which seems to be in Turkish.

This replaces the previous four days entry for EPIC which was just lines and lines of code on a black background with the same note at the bottom.
I have no idea what it means but ... how very timely for EPIC.

Mogs, Anon, Holly Stick : Land expropriation. One example. The gov of Saskatchewan expropriated farmland in 2010 for Loblaws over the objections of landowners to build an inland port authority near Regina.
"John Law, head of the government-created authority managing the warehouse project, said Loblaws would not have considered Regina for its warehouse if it had been forced to negotiate for land.
Faced with the prospect of losing a major investor, the government had to act quickly and so it did, Law said."

Unless I have entirely misjudged them, I think Steve's rw core base would go apeshit if this was pulled into play for pipelines because property rights!. Of course future elections might not be relying on them anymore.

Regulation. In addition to wobbly but worrying legal arguments for transport-to-market being implied within mineral rights permits, EPIC also makes the separate case that if the gov of Canada, supported by legislation, deems a pipeline project to be in the public good, lesser bodies like regulatory and EA panels do not have legal authority to over-ride that, ie. they can regulate but not prohibit. It's on Page 34 of the 2012 EPIC paper linked to in the post, if you're interested.

Lorne : Very kind of you to say. Most MSM reportage depends heavily on being popular/trending with viewers/advertisers. Luckily I don't have to worry about that. ;-)

Alison said...

EPIC website back up again - same members as before.

Anonymous said...

Oil industry to give input on Alberta's school curriculum: get 'em young...

Holly Stick

Alison said...

Holly Stick : I really hate that cuts to education budgets result in schools being forced to go to corps for computers, classroom materials, sports equipment, whatever. It's corporation mission creep with schools as enablers.

However when I looked at the actual Canadian Geographic/Suncor/Syncrude classroom materials for teaching environment studies in schools a few months ago, it seemed pretty benign to me - possibly because it's the 60 odd CanGeo teachers who have exclusive editorial control.

This looks like a different push to include corps - not good, but like the CanGeo/Syncrude deal, I think we'll have to wait and see whether the course materials are actually subtle propaganda or not.

Blog Archive