No federal assessment will be required for Northern Pulp’s proposed effluent treatment project

Yesterday, four days before his announcement was due on the Northern Pulp effluent treatment proposal, and less than 24 hours before the deadline for the provincial environment minister to announce his decision, federal Environment and Climate Change Minister Jonathan Wilkinson released a statement saying that he had “decided not to designate the Northern Pulp project for a federal impact assessment.”

So now it’s up to Nova Scotia Environment Minister Gordon Wilson, who will announce his decision on Northern Pulp’s proposal later this morning. Wilson has three choices, as reported here. He can approve the project, reject it, or ask for a full Environmental Assessment Report, which could add two years to the process.

The announcement from Minister’s Wilkinson’s office landed in my inbox at 2:02 yesterday afternoon.

The email notice from Nova Scotia Environment about the timing of Minister Wilson’s announcement on the Northern Pulp project landed just 13 minutes later, at 2:15.

If you were a superstitious type, you might think the two levels of government had coordinated their announcements.

Last week, on December 10, Liberal Prime Minister Justin Trudeau met with Liberal Premier Stephen McNeil in Ottawa, and praised him as “a great partner in the federation.”

Last March, Trudeau pre-emptively said there were no plans for a federal assessment because Nova Scotia has that responsibility. This didn’t go over well in PEI, where there are also concerns about Northern Pulp’s plans to pump up to 85 million litres of warm treated pulp effluent a day through 11 kilometres of pipe from Abercrombie Point to the PEI ferry terminal at Caribou Harbour, and then four kilometres out into the rich fishing grounds of the Northumberland Strait.

Since then, pressure has been growing for the federal government to undertake an assessment under the new Impact Assessment Act.

Just last week the government of PEI repeated its request for a federal assessment of the proposal, and Premier Dennis King wrote to Minister Wilkinson to that effect, to ensure that the decision would be “based on sound science and evidence.”

Suspicions hard to suspend

Actually, you don’t really need to be a suspicious type to harbour suspicions about how governments make decisions about the Pictou County pulp mill.

For more than 53 years, just about every decision any government has ever made about it has favoured the mill owners — giant multinationals all — at the expense of Pictou Landing First Nation, of human and environmental health, of forests in the province, and of every person who pays taxes that have contributed to the hundreds of millions of dollars worth of loans, grants, cheap water, and countless other benefits that governments have lavished on the mill.

Politics and political influence have consistently trumped public concerns about the mill’s polluting, clearcutting and herbicide-spraying ways, which have been protested intensively for the past half a century.

The decision not to subject Northern Pulp’s new effluent treatment project to a federal assessment suggests that not much has changed.

The Impact Assessment Agency (IAA) “Analysis Report” on “whether to designate the Northern Pulp Replacement Effluent Treatment Facility in Nova Scotia pursuant to the Impact Assessment Act,” says that since February 2018, the IAA (formerly the Canadian Environmental Assessment Agency) has received “over 3,200 letters and emails, including a request from Pictou Landing First Nation that the Minister designate the Project.”

The report continues:

The Agency received comments from Pictou Landing First Nation, Millbrook First Nation, Sipekne’katik First Nation, the Assembly of Nova Scotia Mi’kmaq Chiefs, and the Mi’kmaq Confederacy of Prince Edward Island. 

The Agency also received submissions from stakeholders and the public, including the Friends of the Northumberland Strait; the Prince Edward Island Fishermen’s Association; the Maritime Fishermen’s Union; the Gulf Nova Scotia Fleet Planning Board; Coldwater Lobster Association; local businesses; the Mayor of Stellarton; the Prince Edward Island Minister of Communities, Land and Environment; the Premier of Prince Edward Island; and 19 Canadian Senators. 

The Analysis Report, which the minister reportedly considered in making his decision, also notes that in July 2018, there was a large rally on the Pictou waterfront and of fishermen with their boats in Pictou Harbour to protest the Northern Pulp plan. It also says there is an online petition from the Northumberland Strait Sportfishing Association that has “over 25,000 signatures” on it, requesting federal involvement in a full environmental assessment.

Public concerns and risks that Indigenous rights could be adversely affected by a project are important considerations as to whether it warrants a federal impact assessment, so one might think that on both grounds, Northern Pulp’s proposal more than qualifies.

Conflict of interest

The Analysis Report also highlights the complicating legal factors that put the province in a conflict of interest when it comes to deciding on the new Effluent Treatment Facility (the Halifax Examiner reported on the tangle of liabilities here).

I think it’s worth quoting the entire section from the Impact Assessment Agency report, because it seems inexplicable that Minister Wilkinson could have read it, and still decided there was no need for a federal assessment. Here is what the Analysis Report contains about the conflict of interest that compromises the provincial government’s ability to make an objective decision on the Northern Pulp project when it is funding it [emphasis added]:

The conflict of interest was highlighted by Justice Timothy Gabriel of Nova Scotia Supreme Court when rendering his decision in favour of Pictou Landing First Nation in November 2018. 

At paragraph 74, Justice Gabriel writes: 

“Second, does the potential involvement of the Crown in the funding of the new ETF make it more or less likely that the required Environmental Act approval will ultimately be granted? While (as the Respondent points out) it would be a different “department” of the Crown involved in the approval process, it would essentially boil down to the Crown (wearing one hat) being called upon to determine whether a project which the Crown (wearing another hat) has funded, passes muster. This will do nothing to assuage whatever cynicism has been engendered in the past by the already significant environmental impact which has been visited upon Treaty lands and environs by the mill and its facilities to date.” 

Justice Gabriel further wrote in paragraph 79: 

“if the province is to become the lender, not only is it providing the means by which the (effluent treatment facility) will be built, but it will have an interest to insure that the mill will continue to remain in operation into the future so as to at least recover the taxpayers’ investment,” 

That decision was upheld on September 17, 2019 by the Nova Scotia Court of Appeal. In its written decision, the Appeals Court revealed that the Province would reimburse the proponent up to $250,000 for conducting its environmental assessment studies and an additional $8 million for design and engineering work. Further, paragraph 164 of its decision states that: 

“The Funding Agreements: (1) reduce the likelihood that Northern Pulp would allow the Mill to close after January 30, 2020, to avoid paying the full cost of a New ETF; and (2) heighten the likelihood of ministerial approvals that are necessary for the Mill to operate after January 30, 2020. 

Ignoring the federal scientists

And lastly, there is the science, or rather Minister Wilkinson’s wilful dismissal of it when he decided to give Northern Pulp a pass on an impact assessment.

His decision seems to have been made in spite of the scientific findings of federal scientists and experts, including those in his own department, Environment and Climate Change.

As reported here, in late November, some media outlets obtained comments that five federal departments had submitted to Nova Scotia Environment about the Northern Pulp focus report. The focus report had been required by then environment minister Margaret Miller in March when she found 19 key deficiencies in Northern Pulp’s original registration documents.

The comments from the federal departments were highly critical of the focus report. Some were scathing, describing the report as “cumbersome to navigate and incomplete,” “at times, factually inaccurate,” and saying there were “information gaps,” that it sometimes used “outdated materials,” and that much information was “lacking” or “insufficient.”

The official statement from Minister Wilkinson’s office maintains that he considered these comments, but refers to them more benignly as:

 … important questions raised by federal departments (including Fisheries and Oceans Canada, Environment and Climate Change Canada and Health Canada) during the provincial environment assessment that must still be addressed.

The Analysis Report also refers to a couple of the federal department comments, albeit in an understated way:

Environment and Climate Change Canada had substantive concerns related to the modelling used to predict the effluent dispersion and Health Canada was equally concerned with the accuracy of the human health risk assessment for the Project.

Compare that with what Health Canada actually had to say about the Northern Pulp project proposal and focus report [emphasis added]:

• Health Canada is unable to assess whether the project as outlined in the Registration Submission and Focus Report may pose unacceptable or un-mitigable risks / adverse effects to human health as adequate information … has not been provided at this time.
• After consultation with the Department of Fisheries and Oceans (DFO) it was determined that the choice of a 2D oceanographic model is not appropriate for far-field modelling in Northumberland Strait … therefore errors in modelling may impact that potential risk / adverse effect of the project to human health …

This is just one of several negative comments that scientists from the Department of Fisheries made about the focus report [emphasis added]:

• The preliminary review identified a number of gaps in the information presented. For example, information on marine species in particular is lacking and, at times, factually inaccurate. Moreover, the oceanographic modelling was considered inadequate.

And yet, even after acknowledging “substantive concerns” about the modelling used in the focus report, modelling that federal scientists said was “not appropriate,” the IAA Analysis Report goes on to repeat — as if they are credible — Northern Pulp claims based on that same inappropriate modelling:

… based on their modelling results in the Focus Report, the proponent concluded that any potential effects on water quality would be highly localized and that effluent quality would comply with all federal and provincial permit conditions and regulatory requirements under the Pulp and Paper Effluent Regulations. Furthermore, the proponent’s model also predicted that colour would meet aesthetic objective within five metres of the diffuser. Temperature would meet guideline limits (1 °C differential) within two metres of the diffuser and return to within 0.1 °C of background at the end of the 100-metre mixing zone. 

Acknowledging, and then dismissing, concerns

The Analysis Report states that the Impact Assessment Agency:

…acknowledges the concerns of the Indigenous communities and determined that there is potential for the proposed Project to adversely effect the established Aboriginal and Treaty rights of the Mi’kmaq in Nova Scotia and Prince Edward Island, both on land (i.e., due to the close proximity of Pictou Landing First Nation to and within the airshed of the proposed treatment facility location) and in the marine environment. In addition, the Agency recognizes Pictou Landing First Nation’s concern about the ability of the Class 1 provincial environmental assessment to meet the deep consultation requirements that they feel are owed by the Crown on this Project, including the concern that the provincial public comment periods are too short and their belief that the Province has a conflict of interest. 

On the basis of just that paragraph, one might have thought Minister Wilkinson would decide a federal assessment was needed.

But no, instead Wilkinson assures us — or tries to — with this statement:

Protecting our oceans is a top priority for our government, and for me personally. I am very much aware of concerns that have been raised related to the potential for adverse impacts from the project on marine life including a number of important questions raised by Federal departments. It is my expectation that outstanding questions and information gaps will be answered through the provincial environmental assessment process. Should these issues not be sufficiently dealt with through the provincial process, I remain committed to ensuring that they are thoroughly understood and addressed through federal regulatory processes.

How, exactly, the provincial environment department intends to answer these “important questions” and “information gaps” remains to be seen, and will depend on what Gordon Wilson announces today.

PS: Northern Pulp just hired a new lobbyist in Ottawa

Just a couple of weeks ago, on December 1, Northern Pulp’s parent company, Paper Excellence, engaged the services of a new lobbyist in Ottawa.

As reported here, Northern Pulp already has one lobbyist working on its behalf with the federal government. He is Trevor Floyd, who was Executive Assistant to Randy Delorey when Delorey was Nova Scotia’s Minister of Finance and Treasury Board in 2015 – 2017, and for the two years previous to that when Delorey was Minister of Environment in the Liberal government of Stephen McNeil.

The new lobbyist is Velma McColl of Earnscliffe Strategy Group, who in the 1990s and early 2000s held senior advisory positions in various federal government agencies, including Fisheries and Oceans and Health Canada.

The government institutions McColl is targeting are:

• Environment and Climate Change Canada (ECCC)
• Fisheries and Oceans Canada (DFO)
• House of Commons
• Impact Assessment Agency of Canada (IAAC)
• Indigenous Services Canada (ISC)
• Natural Resources Canada (NRCan)
• Prime Minister’s Office (PMO)
• Privy Council Office (PCO)
• Senate of Canada

Her assignment is to:

Facilitate discussions between Paper Excellence Canada and the federal government regarding environmental assessments.

Unfortunately, her first “communication report,” which will tell us with whom she has met and what “discussions” she may have “facilitated” with the federal government isn’t due until next month. I look forward to reading it.

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