• Frank Seier

Northern Gateway: The other unheard argument

This is a repost of the original posted on this site's predecessor, Right2Respect .com, in commemoration of the anniversary of the Deepwater Horizon disaster on 20 April, 2010.

Smoke on the water, a fire in the sky - Photo: NBC News / Lyrics: Deep Purple

The joint Canadian federal/provincial government review of the Enbridge Northern Gateway Pipeline project [1] recently began, and already the rhetoric on both sides has been heavy – like a war, the first casualty has been the truth.

According to Paul Stanway, Enbridge's communications spokesman, there is no risk of a tanker-related oil spill (leaving aside the issue of an pipeline-related one, which his statement doesn’t address). No doubt, this is what BP’s public relations machine told the U.S. public and industry regulators in obtaining approval to drill the Macondo well in the Gulf of Mexico, right up to the moment that the well blowout and Deepwater Horizon disaster occurred.

Well, in the timeless words of Yogi Berra, “it’s déjà vu all over again.” Without dwelling on Mr. Stanway’s words (there is a lot of room for debate between “oil spill inevitability” and “perfect shipping safety”), if Enbridge is suggesting that there is no risk of an oil spill occurring, it is either lying to itself, the public and regulators, or both.

It [an oil spill] is not inevitable at all. We've gone to great lengths to show that tankers can come in and out of the [shipping channel] in perfect safety (Paul Stanway)

Enbridge knows that risk assessment is more an art than a science and, therefore, total risk prevention is next to impossible. The fundamental issue is not “risk”, but rather “risk management”, and the most that can be achieved by effective risk management is risk reduction, mitigation and remediation.

Enbridge also knows that there are two, equally important, components that make up risk that need to be considered as part of any risk management strategy: the probability of occurrence of an unwanted event; and the impact of that event if it does occur. So while Enbridge may argue that an oil spill is not inevitable, this only responds to the probability side of the risk equation. It doesn't address the impact side of “low probability, high impact” risks – that is, what is the potential magnitude of the impact in the, according to Enbridge, unlikely event that an oil spill occurs, and what measures will Enbridge put in place to minimize, mitigate and remediate such an occurrence.

This is precisely the point that Harry Swain, a former federal deputy minister of Industry Canada and Indian and Northern Affairs Canada, makes in a recent article “Northern Gateway: the unheard argument” – that the implementation of new regulatory, staffing, training, technology and infrastructure requirements necessary to reduce navigational hazards to an acceptable level and respond to oil spills in such a challenging environment would take 5 – 7 years and cost a minimum of $500M – none of which has begun, let alone been budgeted for.

This brings me to the point of this article – the other unheard argument in the Northern Gateway debate. That is, what are the human rights risks inherent in the Northern Gateway project, and what will Enbridge do to address them? The joint panel review of the proposed pipeline is mandated primarily to receive submissions and make recommendations regarding environmental impacts. While this mandate includes the assessment of environmental effects on "socio-economic conditions", there is no specific reference to adverse impacts on human rights.

However, as of June 2011, under the United Nations Guiding Principles on Business and Human Rights (UNGPs), all companies have a responsibility to respect international human rights – which means they must avoid infringing on human rights of others, either directly or indirectly, through their business activities or relationships. The UNGPs have been widely endorsed, including by a broad cross-section of the business sector. In addition to articulating a company-wide policy commitment to respect human rights, the UNGPs recommend a four-step human rights due diligence process that all companies should conduct in order to discharge their responsibility: identify and assess the potential or actual adverse human rights impacts of their activities; integrate the necessary corrective actions into their risk management systems; track the effectiveness of their actions; and report publicly on their human rights performance.

All the companies operating in [the Gulf] had, like BP, been risking a blowout that they had no technical means of dealing with, should it occur. (The Economist, 2010)

The BP Deepwater Horizon disaster is a glaring example of what can happen when an enterprise engaged in low probability/high impact activities fails to consider and take steps to manage human rights risks. Unfortunately, the oil & gas sector has a particularly poor track record in taking such risks seriously. Those are some of the points made in an article regarding the failure of BP to conduct adequate human rights due diligence, including a human rights impact assessment (HRIA), on its Deepwater Horizon operation. [2]

A number of the author’s observations could be made, just as appropriately, with respect to the Northern Gateway pipeline. For example:

“The limited environmental assessment failed to identify the consequences of a disaster. An internal process that resulted in an HRIA would have identified risks and put in place real assets and processes to deal with those risks. The primary differentiator between the two assessments is that an HRIA incorporates interaction with ‘rights holders’, the residents and workers of the [potentially impacted area], through a collaborative assessment of human rights that may be impacted during a project or while a company is doing business. For [the] scenario-building process around human-rights impacts, those rights should necessarily have been environmental and workplace safety, the right to clean water, and a living wage, just to name some. Because an HRIA is a public document based on public discourse, it gives equal footing to business and public interests.”

“…[T]he massive debacle that BP now faces on all flanks could have been avoided or minimized by institutionalizing HRIAs enterprise-wide in the due-diligence process…To be sure, it would have shone light on disaster preparedness. The costs of an HRIA in contrast to BP’s massive expenses from the harm it has done [$8.3B and counting] simply pale by comparison...”.

Like BP at the time, Enbridge has a human rights policy supporting, but not mandating, respect for human rights. The terms “human rights due diligence” and “human rights impact assessment” are nowhere to be found on its website.

Canadians must demand that the potential human rights risks of the Northern Gateway pipeline be included in the project review process. Enbridge should be required to conduct a comprehensive HRIA that identifies those risks and the systems, procedures and financial resources it and the federal and provincial governments will put in place to minimize those risks, and mitigate and remedy any adverse human rights impacts that do occur. The potentially impacted communities that depend on this region’s resources for their lives and livelihoods have a right to respect for their human rights.

End Notes:

[1] The Canadian government finally rejected the project in 2017.

[2] “BP Executives’ Human-Rights Miscalculation: Have They Bet the Company?