My Very Tough Call: Paula Simons on Bill C-48

Bill "C-48 isn’t a good bill. It’s lazy. It’s divisive.": Senator Paula Simons

Bill C-48
Senator Paula Simons took this photo of the Skeena River as she traveled from Prince Rupert to Terrace B.C., when the Senate Transport and Communication Committee was holding hearings of Bill C-48.

Senator Paula Simons posted this letter on her Facebook page on May 16, 2019.

The image up above is of the Skeena River. I took this photo as I traveled from Prince Rupert to Terrace B.C., when our Senate Transport and Communication Committee was holding hearings of Bill C-48.

I had never visited this part of British Columbia before. It was stunningly beautiful. I understood completely why the people who lived there, both Indigenous and non-Indigenous, wanted to protect this extraordinary ecosystem, which is both so rugged and so fragile. It is indeed a landscape and a seascape that demand and deserve protection.

So why did I take the extraordinary step on Wednesday night of voting against C-48 at our Senate Transport Committee – knowing, as I did, that my “swing” vote would defeat the bill in committee?

The next day, various people asked me if I’d been bullied into voting with the Conservatives. Or if I were in the pocket of Big Oil. Or whether I’d been worried about a backlash in Alberta.

But for me, the C-48 decision was both more simple. And more complicated.

If I thought C-48 were a good bill, I would vote for it and defend it, no matter how many Twitter trolls or Conservative politicians attacked me. If I could look Albertans in the face and say that this was a good and necessary bill, I would champion it proudly, and ignore any backlash.

But C-48 isn’t a good bill. It’s lazy. It’s divisive. And it won’t give the northern B.C. coast the environmental protection is needs right now.

C-48 is a largely symbolic bill. It was really part of a quid pro quo; when Prime Minister Justin Trudeau approved the TransMountain pipeline, he offered up oil tanker moratorium as a trade. He’d allow TMX, and in return, he’d protect the upper coast from a devastating oil spill.

But the promise of C-48 didn’t make social or legal approval of TMX any easier. And indeed, years later, it is still not approved. And without TMX, passing C-48 now would effectively landlock Alberta oil, as least along the nearest Pacific coast.

And still, if C-48 were worth the sacrifice, I say we should make that choice. But C-48 doesn’t address the very real environmental problems the B.C. coast faces right now.

First, let’s talk about what C-48 does. And what it doesn’t.

The law doesn’t ban oil tankers from transiting through those waters.

Right now, there is a voluntary exclusion zone in place, one which stops American tankers from short-cutting through the waters between Haida Gwaii and the mainland. It’s been that way for decades, and it keeps the big oil supertankers out in the deeper waters, west of Haida Gwaii.

But while Canada claims jurisdiction over those waters, the Americans have never recognized that claim. On a day when a future U.S. government decided to stop honouring the voluntary exclusion zone, Canada would have a fight on its hands.

And so, C-48 couldn’t ban oil tankers from travelling through the area. The government didn’t have the legal authority to do that, not without potentially provoking an international incident.

The government could have used a provision under the United Nations Convention on the International Law of the Sea and the International Maritime Organization to have these unique waters declared “particularly sensitive sea area” – a special protection enjoyed by places such as the Galapagos Islands, the Great Barrier Reef, and the Canary Islands, which protects a designated area from pollution and from certain kinds of maritime traffic. But the government didn’t go that route.

Instead, it tried a work around: C-48 doesn’t stop tankers from entering those waters. It simply stops them from picking up crude oil, bitumen, and other persistent oils, as a cargo.

Now in truth, there is no proponent with the plan or the capital to build an oil pipeline to the coast right now. So with or without C-48, northwestern B.C. is at no imminent risk from tankers picking up oil at existing northern B.C ports.

BUT the B.C. coast IS at risk. Right now. What we learned in the course of our research is that resources to clean up fuel spills along that coast right now are woefully inadequate. There have already been serious incident of spills of fuel oil from vessels including a tug boat and a ferry. It can take more than 12 hours for clean up response to arrive from Vancouver.

And then there’s the risk posed by ships, including but not limited to supertankers, going down the outside of Haida Gwaii.

In 2014, for example, the Simushir, a Russian cargo ship carrying hundreds of tonnes of bunker oil and diesel fuel, lost power in heavy seas; adrift, it nearly crashed on Haida Gwaii; it took far too long for rescuers to arrive. Though a disaster was averted, the incident has not served as a wake-up call. There is still no local, rapid-response capacity, despite all the cruise ships, cargo ships, fuel ships etc. that are routinely in the water – most of which are far more vulnerable to a hull breach than a modern double-hulled supertanker.

C-48 does nothing to protect this dramatic, remarkable coastline from the threats it faces right now. That’s what I mean when I call it lazy, and symbolic. It protected the area from the hypothetical threat of a future pipeline, while doing nothing to safeguard the region from very real dangers in the here and now.

Meanwhile, the C-48 has divided First Nations along that coast, and further inland.

The Nisga’a Nation, right along the border with Alaska, objects strenuously to the law, which is sees as a trespass on its treaty rights and its rights of economic self-determination. The Nisga’a chief told our committee that if C-48 were to pass, her nation would sue the government, citing a failure of consult with them, as mandated by the Constitution.

The Metlakatla First Nation, on the other hand, supports C-48 in part, but it asking that it be a true moratorium, rather than a ban, and subject to review after three years.

The Laxkw’alaams Indian Band is divided within itself, with the elected chief opposing C-48, and the hereditary chiefs supporting it.

What everyone agrees on is the necessity to protect the coast line, and the Skeena estuary, one of the world’s most important salmon breeding geographies.

But is C-48 the best or only way to do that? I don’t think so.

I’m also a member of the Senate Energy, Environment and Natural Resources Committee, which is dealing with Bill C-69, the new impact assessment act, which would set new rules of environmental and social assessments of major infrastructure projects such as new ports, pipeline, or rail lines. Anyone who wanted to build a new northern seaport, or a new northern pipeline or railway would need to go through rigorous environmental review. No one could just start shipping crude or bitumen without a thorough assessment, that would include intensive consultation with Indigenous groups, and significant scientific and safety reviews. If we get C-69 right, we can review projects, and review them well, on a case-by-case basis, rather than imposing a blanket preemptive ban.

Now, let it be said, I don’t think C-48 is part of some nefarious Liberal attack on Alberta’s economy. I don’t believe the “chill” of C-48 has cost Alberta a single real-time job – at least, not yet. But that doesn’t mean the symbolism of C-48 isn’t hurtful and offensive to Albertans – especially with TMX still in limbo.

At a time when many Albertans are already feeling angry, frustrated, and alienated, C-48 is a woefully unnecessary irritant. It erodes faith in the our Confederation. It pits province against province, region against region, First Nation against First Nation.

It is not grounded in science or evidence. It does not protect our country’s extraordinary northwest coast from very real and present dangers. And it doesn’t actually ban oil tankers from the area.

I tried to get amendments to the bill. I argued for an amendment that would have exempted the Nisga’a territory from the ban, honouring their treaty rights, and creating a northern egress for Alberta oil. The amendment failed.

I tried to get an amendment that would make the proclamation of C-48 contingent on the approval of TMX. The amendment failed.

I supported an amendment to make the ban more of a real moratorium, subject to review after five years. That amendment did pass. But for me, that wasn’t enough.

And so, I made a very hard decision. I voted with a group of Conservative senators in committee against the bill. And because of alphabetical order, I cast the last vote – which meant that our committee had refused to “report” C-48 to the Senate. It was a tie vote – 6-6 – but the tie goes to those opposing the motion. And so, the motion to approve the bill fell.

Now, that set a cat amongst the pigeons. This is, apparently, only the sixth time in the history of the Senate that a committee had refused to approve a bill. I spent Thursday being held up as a model of how an Independent senator is supposed to behave – while being attacked in other quarters for being proof positive that the independent senate model isn’t working, and can’t work.

In truth, I didn’t “kill” the bill. And I didn’t “break” the Senate.

I’m neither a heroine nor a villainess.

After all the melodrama, the fact is that the bill will likely return to the Senate floor week after next. We’ll have the chance to vote on amendments. And perhaps, if the amendments I support pass, I’ll vote in favour of the bill then. I don’t know yet.

I do know that I voted last night against my inclination, but with my conscience. I do know that the peoples of the Skeena, of Haida Gwaii, and the whole northwest coast live in one of the most marvellous places I’ve ever seen. Whether C-48 passes or not, I hope we can protect their land, their water, and their culture, with real and effective environmental measures – measures that C-48 simply doesn’t offer.

But at the end of the day, my job, my constitutional duty, includes defending Alberta and the interests of my region.

That’s what I did Wednesday night. It’s what I will try to do every day for the rest of my years in the Senate.

Yours, sincerely and with love,

Senator Paula

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