One Pipeline and Two Impact Assessments: Coproduction, Legal Pluralism, and the Trans Mountain Expansion Project

Abstract

Canada’s Trans Mountain Expansion Pipeline project is one of the country’s most controversial in recent history. At the heart of the controversy lie questions about how to conduct impact assessments (IAs) of oil spills in marine and coastal ecosystems. This paper offers an analysis of two such IAs: one carried out by Canada through its National Energy Board and the other by Tsleil-Waututh Nation, whose unceded ancestral territory encompasses the last twenty-eight kilometers of the project’s terminus in the Burrard Inlet, British Columbia. The comparison is informed by a science and technology studies approach to coproduction, displaying the close relationship between IA law and applied scientific practice on both sides of the dispute. By attending to differing perspectives on concepts central to IA such as significance and mitigation, this case study illustrates how coproduction supports legal pluralism’s attention to diverse forms of world making inherent in IA. We close by reflecting on how such attention is relevant to Canada’s ongoing commitments, including those under the UN Declaration on the Rights of Indigenous Peoples.

Introduction

This paper considers two impact assessments (IAs) of the Trans Mountain Expansion (TMX) project, one of the most controversial pipeline infrastructure projects in recent Canadian history. Our focus is on how these assessments manifest, respectively, two distinct relationships between law and science. On one side is Canada, under whose authority and according to whose laws an IA of the environmental and social impacts of the TMX project was carried out. On the other is Tsleil-Waututh Nation (TWN), whose unceded territory encompasses the pipeline’s last twenty-eight kilometers to the Burrard Inlet, near the port of Vancouver, British Columbia. TWN, The People of the Inlet, know themselves to be its stewards from long before first contact with settlers in 1792 and before the Crown’s 1846 assertion of sovereignty, and continuing into the future. Their assessment of the TMX was carried out according to Tsleil-Waututh and Coast Salish legal principles (TWN 2015, 11, 52-55).

The broader context involves coevolving legal, political, and scientific contexts for a decade-long process grounded in the history and existing relationship between Indigenous people and Canada. From Canada’s perspective, its IA extended beyond the Burrard Inlet to include over 1,100 kms of the pipeline (and beyond), involving two provinces (British Columbia and Alberta), many cities and towns, citizens’ groups and private-sector organizations, and over 120 Indigenous bands, associations, tribal councils, and First Nations. For its part, TWN’s (2015) IA, though directed geographically on the Inlet (see Figure 1 below), is also about their sacred obligations to past, present, and future, to reciprocal relation (? aX^westal) to the syəwenə “collectively, the spirits of those who came before us; the ancestors; our brethren—all creatures that live on the earth with us” (pp. 52-53).

Figure 1.

Burrard Inlet and Tsleil-Waututh Nation Reserve and Assessment Study Area. Source: Tsleil-Waututh Nation ([TWN] 2015, 9). Reproduced with permission of the Tsleil-Waututh Nation.

The proposed TMX expansion project has led to decisions by Canadian authorities—administrative review bodies and the federal cabinet—which have prompted challenges from TWN and other First Nations, the Province of British Columbia, Environmental Non-Governmental Organizations (ENGOs), and other stakeholders—culminating in two separate Federal Court of Appeal (FCA) proceedings appealed to the Supreme Court of Canada. The context is further complicated by multiple legal orders. Both the Canadian courts and the federal government (through its Bill C-15, the UN Declaration on the Rights of Indigenous Peoples [UNDRIP] Act) have acknowledged that more is required to respect the inherent right of Indigenous Nations to engage in self-governance and to respect the international legal standards set out in Article 32 of UNDRIP, the United Nations Declaration of the Rights of Indigenous Peoples (UN General Assembly, 2007).

A comprehensive analysis of the two IAs and their contexts is not possible within the limitations of this paper and our own scholarship. Moreover, our focus is limited temporally to events now several years old; critiques of the pipeline continue on the part of settler scholars (Gunton, Joseph, and Dale 2021), as do various forms of ongoing opposition by Tsleil-Waututh and other First Nations. We speak neither for Canada nor for TWN, and what follows should not be read as prejudicial to the ongoing political and legal considerations in the development of nation-to-nation relationships. As much as possible, we are trying to present, in their own words, the concepts and methods of these two IAs, based on publicly available documents, informed by our respective expertise in the fields of science and technology studies (STS) and environmental law. Our focus is further narrowed by restricting our description to the specific topic of the assessment of impacts of oil potentially spilled into marine and coastal ecosystems. By juxtaposing and analyzing the IAs of the nation of Tsleil-Waututh and the nation of Canada, we seek also to contribute to the work of shedding light and reflecting on the processes and effects of colonization as these appear in the historical record.

The term coproduction here does not refer to ideas of interactive or participatory processes in which various groups of actors (experts, policymakers, and community members) collaborate in producing knowledge and in acting on it. This has become the predominant meaning of the term, particularly in environmental governance literature, and is fundamental to envisaging the complex ways of respectfully weaving Indigenous and western science in such contexts, while retaining respective integrities (Berkes 2017; Turnhout et al. 2020). While this is a vital project, particularly as applied to the IA realm in Canada (Eckert et al. 2020), an equally important project flows from the term’s meaning as coined by Jasanoff (2004): “co-production is shorthand for the proposition that the ways in which we know and represent the world (both nature and society) are inseparable from the ways in which we choose to live in it” (p. 2). As an idiom for much STS scholarship, this meaning of coproduction has served to help query the socioepistemic binary separation of the political and the scientific, whereby science has been assumed to speak for nature (human or nonhuman, the realm of objective fact) and politics (especially democracy) for the subjective values, needs, and visions of the good. In its attention to worldmaking and world-imagining as a springboard for analysis of how knowledge and norms arise reciprocally, coproduction well serves the legal pluralism project, by which we mean the scholarly attention to multiplicities of strategically positioned normative networks in which human and nonhuman constituents interact, including beyond institutional boundaries and across political scales (local, national, and international).

The value of this coproduction lens lies, first, in the fact that IA as a form of scientific management is almost by design, but often malgré lui, a hybrid of fact and value determinations, since its central prognostic functions (predicting impacts of anthropogenic alterations to socioecological systems) are framed inseparably from values. As we will clarify, central analytical terms such as significance, mitigation, and valued components of scientific management applied to socioecological systems are intended to enable the precision of science and its metrics to serve the interest of society’s priorities for and over nature (Beanlands and Duinker 1983). The vast majority of decades of scholarship on IA methodology has sought to refine the ways to shield from one another the realms of objective fact and subjective value (MacKinnon, Duinker, and Walker 2018). The irony is that such efforts attest to both the power of the ideal of scientific objectivity and the near futility of its fulfillment in IA processes. Insights from postnormal science are beginning to shed light on this irony, although fundamental tensions between the epistemic and the political modalities of IA remain palpable (Petersen et al. 2011; Bond et al. 2015).

Second, scientific management through IA, as a form of scientific worldmaking (i.e., predicting and managing a future potentially impacted by anthropogenic incursions), is enabled and given meaning through legal frameworks. Scholarship has considered the complex ways Indigenous knowledge has interacted with (and been excluded from) state laws and practices of IAs as they have evolved over five decades, including in Canada (Larsen 2018; G. Gibson, Galbraith, and MacDonald 2016). But STS insights are needed, especially as IAs are increasingly recognized as simultaneous epistemic and political projects in light, for example, of sustainability (R. Gibson 2017) and environmental justice (Blue, Bronson, and Lavoie 2021) as defining both method and goals of science in IA.

Third, coproduction offers a way into how the central notions of IA—significance and mitigation—are conceptualized and given power through the respective legal orders of each nation. As explained in the editors’ introduction to this volume, the lens of legal pluralism has opened up avenues for attending to the ways multiple normativities and material realities interact reciprocally in worldmaking. We examine how the respective legal orders (those of TWN and that of Canada’s legislative framework for IA) gave meaning and life to these central concepts and their epistemic framings (including the use of scientific techniques). We seek to describe the creative, reciprocal relationships between legal ordering and knowledge processes that constituted each respective IA and the creative tensions between them that unfolded in the process of public review of this pipeline project. We thereby better understand the nuances within what eventually crystallized into fundamentally opposed positions: one IA process determined the pipeline should be built, and the other concluded it should not.

And the coproduction narrative pursued here is no mere retrospective. It is only recently that Canadian political and legal authorities have begun to fully realize the legitimacy of Indigenous self-governance as inherent and not dependent on any form of recognition devised by the Canadian legal system (Borrows et al. 2019). Attending to the conflicting ways of worldmaking that lie at the heart of the IA controversies around this pipeline, and the opposed positions of the TWN and the Government of Canada (GoC), is an ongoing task. In what follows, we first describe the TMX project and summarize Canada’s IA from the limited perspective of key concepts of the significance of impacts and their mitigation, which were methodologically central to the IA as carried out by Canada in this case. We characterize how risk determinations are carried out with respect to oil potentially spilled in marine ecosystems. We describe TWN’s assessment and how it informs—perhaps demands—a reexamination of these concepts of significance and mitigation. We conclude with some reflections on STS and legal pluralism, particularly as they relate to the coproduction of knowledge in the context of future IAs potentially informed by, and in accordance with, Indigenous law.

The Project

The TMX Project involves the twinning of an existing 1,147 km Trans Mountain Pipeline system between Edmonton, Alberta, and Burnaby, British Columbia, with about 987 km of new buried pipeline. The new pipeline segments, along with two currently active pipeline segments, would become Line 2, as shown in Figure 2.

Figure 2.

Trans Mountain Expansion project map. Source: National Energy Board (2016; Fig. 1, p. 2). Reproduced with permission of the Canada Energy Regulator.

The project will increase the capacity of the pipeline system for crude petroleum and refined products, mostly bound for external markets from the Westridge Marine Terminal (WMT). The expanded system increases the number of tankers (each carrying up to 144,000 barrels) leaving the WMT from five to thirty-four per month, a roughly seven-fold increase, depending on market conditions (National Energy Board [NEB] 2016, 3).

Canada’s IA for TMX and the Meaning of Significance and Mitigation

IA is a prescriptive review process for the assessment of proposed physical works and activities that focuses on whether their impacts exceed predefined thresholds of harm to people or natural environments. Involving predictions of statistical likelihood and severity of negative consequence, IA can be thought of as a type of risk assessment (Milne and Bennett 2016). The central term of analysis of much IA practice is the valued ecosystem component (VEC), which can range in meaning from a specific species of biota to a subsystem of VEC relations within an ecosystem or, indeed (though rarely), the ecosystem itself. When human dimensions are under review, such as in the subfield called social IA, VEC is shortened to valued component (VC). The concept informed Canadian law that was in force during the events described in this paper, the Canadian Environmental Assessment Act 2012 (GoC 2012), where VCs helped define the factors to be considered by any IA. Potential impacts are ranged according to the degree that they each, or cumulatively and in relation to one another, were deemed to be significant versus not significant. Such determinations are meant to serve as a guide ultimately to decision-makers. These crucial interpretative terms are described more fully below, but the essential point is that their meanings, and the boundaries between them, are widely understood to be defined both by metrics of scientific measurement and by some form of social consensus of values held by communities experiencing those impacts (Ehrlich and Ross 2016). Traditionally, at the heart of IAs is the assessment of the boundaries between those terms and the mitigations necessary to avoid crossing the line from not significant to significant (Beandlands and Duinker 1983; Lawrence 2007). These terms have largely survived the changes in law when Canada repealed CEAA 2012 and replaced it with the Impact Assessment Act in 2019. The federal agency regulating pipelines, the NEB, was also replaced by the Canadian Energy Regulator. But the documents discussed in this paper predate those changes, so we refer only to CEAA 2012 and NEB.

Because the activities of the TMX project would fall within NEB’s regulatory mandate, Canada’s IA under CEAA 2012 was first carried out by NEB, as prescribed by the NEB Act. The stages followed were standard for such large projects. After initial stages of consultation with government and the public, the proponent (Trans Mountain ULC, owned by Kinder Morgan) first submitted its multivolume proposal to NEB, which included the proponent’s own Environmental Impact Statement (EIS) along with a wealth of technical detail. Those documents initiated a period of public comment on that document mediated by NEB. Analysis by NEB of the proponent’s EIS also included guidance sought from federal and provincial authorities with associated jurisdictions or expertise. Once initial review was judged complete, NEB commenced a public panel review process, leading ultimately to its report of May 2016, which addresses the project’s technical details along with several chapters about the potential impacts on environmental and socioeconomic conditions of communities along the pipeline. It is those chapters that constitute what we are here calling NEB’s IA.

That report (NEB 2016) is largely a record of the evidence provided by both the proponent in its EIS and the evidence of intervenors (including government departments, Indigenous nations, communities, ENGOs, private-sector stakeholders), totaling over 1,600 individuals (p. 4). It is a kind of record and judgment about the knowledge contest between what the proponent claims in its EIS and the responses of intervenors regarding the relative likelihoods and consequences of the project’s negative impacts, evaluations of their significance, and options for mitigation. As is normal for review processes whose goal is to determine public interest or, equivalently, “Public Convenience and Necessity” (Goodday, Winter, and Westwood 2020), NEB report also lists in tabular form the anticipated benefits (mostly socioeconomic) and burdens (mostly environmental), as a form of cost-benefit analysis (NEB 2016, xiii-xiv). The whole thus consists of an administrative review of a vast body of input rather than merely an IA carried out by NEB alone.

The same is true of the second phase of the project review produced by NEB in February 2019 (Reconsideration Report,NEB 2019), which largely reproduced and updated its 2016 report, but expanded its scope to include impacts of increased shipping. This reconsideration was the result of an August 2018 ruling by the FCA in the first legal challenge to the project, Tsleil-Waututh Nation v. Canada (Attorney General). For the purposes of this paper, when we speak of the NEB’s combined IA (or simply the NEB’s IA), we refer to the IA chapters contained within both NEB reports (2016 and 2019) together. By May 2018, the GoC had agreed to purchase the TMX and related assets from Kinder Morgan.

The NEB’s 2019 Reconsideration Report affirmed the general conclusion of the first report, that “the Project is not likely to cause significant adverse environmental effects” (NEB 2016, xii). Of the vast array of impacts assessed by NEB along the full length of the pipeline, including (in 2019) shipping impacts up to twelve nautical miles from the WMT, almost all were regarded by both NEB and subsequently by the GoC as not significant in either extent or duration (short term), due in some cases to assumed assimilations of impacts on the part of local ecosystems and communities (including First Nations and Indigenous communities), or due to predicted success of mitigation measures that would lessen those effects. ¹ However, reconsideration of marine shipping impacts meant that the Board then also concluded the project was “likely to cause significant adverse environmental effects,” but that “in light of the considerable benefits of the Project and measures to mitigate the effects,” it recommended approval (GoC 2019a, 4). This the Governor in Council (GIC), in this case the federal Minister of Natural Resources, did for a second time on June 18, 2019, stating “the Project is required by the present and future public convenience and necessity and is in the Canadian public interest,” as it would “increase access to diverse markets for Canadian oil and support economic development while ensuring safety and environmental protection” (GoC 2019a, 8). Despite the conclusion that significant adverse impacts could result from TMX-related shipping, “national interest” predominated over local “concern.” Tense debate over TMX having to do with geographic and political scale has characterized nearly every aspect of this controversial project from its inception (Barney 2017). As will become clear, the profound differences in meaning of terms like significance, mitigation, and impact hinge, in part, on differences of scale—both geographic and political—of which either nation sought to be mindful.

Significance and Mitigation of Credible Worst-case Oil Spills

The importance of the terms significance and its correlative, mitigation, in the Canadian IA system (under GoC 2012) cannot be overstated. Among the “adverse effects” of local concern was a “credible worst-case” oil spill resulting from increased tanker traffic or increased volumes of oil at the WMT in the Burrard Inlet or beyond (GoC 2019a, 4). As with all IA processes, here the scientific scrutiny involved in the IA generated conditions that attended the approval of project, whose purpose explicitly is to prevent or mitigate potential negative impacts predicted by the assessment process. A number of the 156 conditions attending and regulating the project’s approval by the federal government (many of which were recommended by NEB’s IA) relate directly to these impacts, serving as high-level mitigations of such “significant adverse effects.” Some of these conditions are forward looking, including those in relation to preventing oil spills or responding to them should they occur. These included the government’s commitments to engage in further science research to inform impact analysis and effective mitigation measures within an adaptive management framework, itself supported by funding commitments. Such support for mitigation research was also designed to accommodate Aboriginal rights consistent with section 35(1) of Canada’s Constitution Act, 1982, and as a means to support ongoing “meaningful two-way dialogue” with Indigenous peoples (GoC 2019a, 32-52).

Under the GoC 2012, the significance of any potential effect of a project was required to be considered, alongside “mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects” (GoC 2012, sect. 19). The meaning of significant is widely debated in IA scholarship and practice, as are the operational boundaries separating significant from not significant (Ehrlich and Ross 2016; Lawrence 2007). Determining variables include magnitude, spatial extent, temporal duration, reversibility, synergistic effects, and/or contributions to cumulative effects (Milne and Bennett 2016). In this case, the Board determined an effect as “significant” if it was either (i) “of high magnitude” or (ii) “long-term, permanent and of regional/global extent.” While guidance is offered by CEAA operational documents and by expert judgement, determination of significance largely lay within the discretion of the NEB (2016, 529) and the GIC.

In Canada, discourse around significance thresholds has evolved over decades as a result of past neglect of environmental impacts due to industrial development (R. Gibson and Hanna 2016). Significance determinations of socioecological impacts are still seen, in practice, as in tension with considerations of socioeconomic benefits, often giving rise to critiques from within the scientific community of the quality of science in IAs when constrained by nonscientific considerations and the subjective judgements (and conflicting priorities) of regulators and proponents (Westwood et al. 2019; Murray et al. 2018). Similarly fraught is the concept of mitigation, conceptually and procedurally inseparable from significance, because the two terms effectively define one another as correlatives. Their meaning and role within Canada’s IAs can be simply illustrated, whereby mitigation renders not significant (or acceptable) what would otherwise be a significant (and unacceptable) effect (see Figure 3 above).

Figure 3.

“Significance” as a boundary between acceptable and unacceptable, and the role of “mitigation” across the boundary. Reproduced with permission of Alan Ehrlich, MacKenzie Valley Environmental Impact Review Board.

IA literature and practice has long focused on impacts on individual species within defined geographic limits, largely as a matter of practical management necessity, and so as to leverage the scientific method by focus on discrete, analyzable, and measurable aspects of nature. Thus, VECs dominate the IA lexica (Beanlands and Duinker 1983).

With respect to assessing the potential occurrence and impacts of oil spills from marine traffic, the proponent’s EIS used standard stochastic modeling techniques common to the oil spill response scientific community. ² These combine probabilities of vessel strikes and predictions of the resulting movement of oil, relying on met-ocean data and physicochemical characteristics of specific hydrocarbons spilled. It is a scientific challenge of considerable complexity, and research on better models is ongoing (Zhong et al. 2018). Typically making use of the concept of VECs, population densities in predicted oil/water concentrations are used to determine impacts, according to available toxicological data for a few select indicator species (NEB 2019, chap. 14). Mitigation factors within the models include capacities for oil spill cleanup, since removal of the oil amounts to lessening toxic impacts. NEB’s report stated that for all but “credible worst-case” spills, impacts from marine and coastal spills would not be significant, given the ecosystem-wide assimilative capacity to return to baseline conditions within months to a few years (NEB 2019, chap. 14, passim). The base assumption in such analyses employing the concept of assimilative capacity continues to be that ecosystems can absorb anthropogenic impacts—can themselves, over time, move the needle from “significant” to “not significant,” to the left, in terms of Figure 3 above. This assumption has been contested by both legal and scientific thinking in environmental fields (Krom 1986), as well as most recently by scholars addressing the colonialism inherent in its application (Liboiron 2021). These stochastic models were carried out by the proponent only well beyond the Burrard Inlet (points D–H in Figure 4). At WMT (point A), only very small volumes of spilled oil (160 m³ reduced to 32 m³ after mitigation measures were factored in) were considered as statistically significant within the project’s lifetime (NEB 2019, 196).

Figure 4.

Locations of potential spill sites considered by National Energy Board (NEB) in its impact assessment. Source:NEB (2016, 372). Reproduced with permission of the Canada Energy Regulator.

In terms of fundamental categories of risk analysis, likelihood (probability), and consequence (impact), Canada’s focus is on lowering likelihood through accident prevention, through mitigation measures including increased tug escorts for tankers leaving the terminal, and by continually improving technological management and regulatory oversight.

But once a spill has happened, the term mitigation takes on meaning only in relation to an adverse effect that has already occurred. The term mitigation becomes a kind of benefit or improvement of a state of harm to a socioecological system whose probability (P) of occurring is now equal to one (P = 1). The uncomfortable truth is that, particularly when the scale of analysis is focused on the local level, even for oil spills of even small quantities, mitigation after an event rarely can return an adverse impact to zero or even do much to return the needle to the left very quickly. Despite considerable research generated by the review process to determine more precisely the impacts of the diluted bitumen upon coastal and marine environments were a spill to occur, and uncertainties whether the capacities to clean up such spills constituted adequate mitigation, the NEB’s (2019) Report remains eerily mute on this (ch. 8, 9).

The key decision-making frameworks called on in IAs for directing how postspill mitigation should best take place is called Net Environmental Benefit Analysis (NEBA), where mitigation is understood as human action undertaken to return the ecosystem as far as possible to its prespill state. NEBA operates as a subset of IA and follows the same logic and methods. In the context of such planning and predictive techniques that NEBA seeks to systematize, the goal is to determine which response actions will gain the most benefit by comparing hypothetical human-assisted recovery pathways to the recovery pathway that nature would take were it left to fend for itself (i.e., natural attenuation). Central to such modeling is the assumption of assimilative capacity pathways of ecosystems (e.g., biodegradation or just plain dilution of contaminants to levels deemed acceptable or not significant).

In the context of a postspill event, where P = 1, although in principal mitigation conceptually can accommodate the idea of improving socioecological conditions to a restoration goal better than the pre-spill states, operationally this possibility is avoided in industry guidance literature on NEBA (International Petroleum Industry Environmental Conservation Association [IPIECA] 2016, 6). The key point is that this conception of benefit is dependent on adverse impacts having been realized, such that benefit is understood as a lesser harm than other response actions that might otherwise impede processes of natural attenuation. And this logical dependence of benefit on harms having already occurred in such NEBA planning literature mirrors quite explicitly the logic of mitigation in relation to significance determinations in IA systems generally. Here, the term mitigation implies improvement, such as to render an effect less adverse—that is, to render it less significant. As is clear from Canada’s IA, even high-level, future-oriented mitigations (such as strengthening oil spill response capacity or increased science about the behavior of oil in marine systems) follow this same logic, and were described as such explicitly in Canada’s various condition statements appended to the project’s approval (GoC 2019a, 32-52).

As such, IAs assume meanings of terms such as mitigation that are imposed, akin to other applications of risk assessment methodologies. As STS scholars have long argued, risk assessments can act as hegemonic impositions, simultaneously epistemic and political, rooted in perceived scientific certainty and the political authority claimed to follow from that certainty (Wynne 2016; Barnett and Wiber 2019). What the term mitigation (and its cognate, benefit) means in NEBA documents, and in IA more generally, is in relation to human response efforts to reduce significant adverse impacts to the level of not—or at least less—significant. Such impositions include implicit assumptions about what is “natural” about natural attenuation or what the socioecological capacities are for assimilation of pollutants at local scales. At once normative and descriptive of reality, terms such as mitigation, significance, benefit, and impact are all correlative terms whose meaning and power are rigidly circumscribed by Canada’s legislative frameworks for their use in IA. Although such terms are intended to be open to scrutiny and definition through the processes of engagement with potentially impacted communities as mandated by IA law, as STS work has shown, engagement is often a matter of shutting down rather than opening up reflexive consideration of plural normativities and ontologies (Chilvers and Kearnes 2020). In what follows, we examine a reframing of these key analytical terms of IA through what can be called legal-pluralism-in-action on the part of the TWN.

TWN’s IA

Independent of Canada’s review process, in 2016, TWN produced its own Oil Spill Preparedness and Response Plan for the Burrard Inlet (see Figure 1). This plan was grounded in its “sacred, legal obligation to protect, defend, and steward the water, land, air, and resources of our territory” and uses the language of mitigation and benefit very differently than commonly found in typical environmental management literature. Their NEBA declares that “TWN stewardship law establishes the requirement for “net environmental benefit,” meaning that in the event of an oil spill, the responsible party shall restore the environment to a condition better than its pre-spill state” (emphasis in original). For TWN (2016), this included modeling scenarios far in excess of those considered by NEB, using a form of a fortiori argument: “By preparing for the worst case, we also prepare ourselves for less severe oil spills” (pp. 2, 3). This sense of the meaning of benefit or mitigation was foreshadowed in the publication on which we focus for the balance of this paper, the TWN (2015) Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal. It reports on an IA of the TMX proposal carried out by TWN and which we refer to here as the Assessment to indicate our reference to the IA that is reported on within (TWN 2015). Their Assessment involved framing the meaning and use of scientific terms of management such as mitigation and significance consistent with that nation’s laws. As with the case of Canada, the predictive act of worldmaking through IA, and the norms by which that world is lived in, were coproduced.

In May 2015, the TWN Treaty, Land and Resources Department submitted its own Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal to the NEB TMX review panel, as one of the nine volumes of written submissions. ³ Regarded by legal scholars as the first of its kind in the context of Canadian, federal-level project assessment processes (Takach 2017), TWN’s Assessment weaves together in one document: legal principles, traditional knowledge and community consultation work, anthropological and archeological evidence, and current socioecological baseline information, along with five distinct experts’ reports. These reports focus on risk calculation, ecological and human health impacts assessment, mitigation options (oil spill response), and assessment of potential scenarios of oil spill releases into the Inlet. These all included modeled scenarios with far larger volumes of oil than those considered by NEB.

It is to be noted that the Assessment and supporting appendices were not sought out, as such, by NEB as if in a comanaged or joint Canada-First Nation(s) parallel process, such as is increasingly being called for in Canada (Arsenault et al. 2019). Rather, as a matter of the process imposed upon all intervenors by NEB, the TWN Assessment was included as a piece of evidence in the sense given to that by the NEB administrative review context. It was not recognized by Canada as in any sense equivalent to—or even supporting—NEB’s IA and was not allowed to stand as juxtaposed to the NEB’s in the way that we present it in this paper. It was, however, an assessment conducted and submitted under the authority of the Nation and is one example of what has been termed the “just do it” approach to self-determination and self-governance (Metallic and Promislow 2018)—what we have called legal-pluralism-in-action. In their words: “The assessment was required because many components of the proposed TMEX ⁴ fall inside our Consultation Area and have the potential to affect us” (TWN 2015, 3).

The Assessment itself emerged from two decades of TWN’s (2017) ongoing work of restoring the Burrard Inlet in what is described as decades of social, spiritual, and ecological degradation due to economic urban and industrial development. This included collaborations with the Burrard Inlet Environmental Action Program (BIEAP 2002), a multijurisdictional effort of the Tsleil-Waututh government, various departments of the Canadian and BC governments, and the City of Vancouver, which engaged scientists and others under a collective mandate to “protect and improve Burrard Inlet environmental quality” (p. 4). Their response to TMX was thus but a stage along their journey to “put the Tsleil-Waututh ‘face’ back on our traditional territory” (TWN 2009, v), which included the development of strong internal capacity in various resource management areas. By 2009, they had developed “the most comprehensive source for digital bio-physical information on the Tsleil-Waututh traditional territory” and nationally acclaimed services in planning, research in cultural heritage and archeology, and stewardship for resource management (TWN 2009, 2).

Defining Baselines for Assessing Significance and Determining Mitigation

The TWN (2015) Assessment conclusion is summarized on its first page:

…the TMEX proposal does not represent the best use of Tsleil-Waututh territory and its water, land, air, and resources to satisfy the needs of our ancestors, and the needs of present and future generations. It has the potential to deprive past, current, and future generations of our community control and benefit of the water, land, air, and resources in our territory. The assessment recommends that Chief and Council continue to withhold Tsleil-Waututh Nation’s support for the TMEX proposal. (p. 3)

That position remains unchanged after Canada’s fulfillment of an expanded IA as part of its reconsideration process, as ordered by the FCA ruling in August 2018 (TWN 2019); the nation’s opposition to pipeline continues at time of writing. ⁵

At the very heart of the TWN (2015) and its conclusion is the restoration mandate it has long pursued for its territory: “Our stewardship obligation includes the responsibility to maintain and restore conditions that provide the environmental, cultural, spiritual, and economic foundation for our nation and community to thrive” (p. 3). This responsibility is set out explicitly in the Tsleil-Waututh Stewardship Policy of 2009, which is founded in traditional and contemporary sources of Tsleil-Waututh and Coast Salish laws and legal principles. The Tsleil-Waututh Assessment provides a detailed summary of the key legal principles engaged, noting the sources of its legal authority: “Just as Canadian common law consists of a body of case law developed over the centuries, Coast Salish stories express the ancestral laws of the Tsleil-Waututh. […] These expressions of Tsleil-Waututh law are referred to interchangeably here as stories, traditional narratives, or teachings.” From these stories, narratives, and teachings derive the three key legal principles summarized in the Assessment:

1. Tsleil-Waututh has a sacred obligation to protect, defend, and steward the water, land, air, and resources of the territory.

2. Tsleil-Waututh’s stewardship obligation includes maintaining and restoring conditions in our territory that provide the environmental, cultural, spiritual, and economic foundation for

   1. cultural transmission and training,
   2. spiritual preparation and power,
   3. harvest and consumption of safe, abundant wild foods, and
   4. control over and sharing of resources according to Tsleil-Waututh and Coast Salish protocols.
3. Failure to be “highly responsible” in one’s actions toward the people, the earth, the ancestors, and all beings has serious consequences, which may include the following:

   1. loss of physical sustenance,
   2. loss of access to resources or social status, and
   3. loss of the tools and training that allow Tselil-Waututh individuals to reach their full potential and the related social and cultural impacts of this loss (TWN 2015, 52-55). ⁶

The authors of this paper do not have the necessary invitation, knowledge, or experience in Indigenous legal research methodology to attempt an in-depth analysis of the stories or teachings upon which these legal principles and the Tsleil-Waututh stewardship policy as a whole are founded. ⁷ Here, we simply draw attention to these principles and their sources to contextualize the Tsleil-Waututh’s IA as being firmly grounded in Tsleil-Waututh law.

Key for this paper is that Tsleil-Waututh’s evaluation of current conditions in the Inlet constituted a baseline above which it has a responsibility to restore the Inlet, including for the purposes, for example, of restoring and maintaining a viable subsistence economy (TWN 2015, 40). Determinations of significance or mitigation in the Assessment only make sense with respect to that new baseline above existing conditions of marine and intertidal life. Bi-valve harvest restoration (TWN 2015, 62) and harvest nutritional goals such as 10% of its food (measured in terms of protein intake) by 2040 (TWN 2015, 40) help define that baseline. Health of the ecosystem and the TWN way of life are presented as inseparable, which manifests not only in terms of harvesting and subsistence but also in the capacity to continue spiritual teachings and personal development of each member (TWN 2015, 55). Thus, central to the Assessment is also the issue of governance: “Aboriginal title to the water, land, and air in eastern Burrard Inlet and beyond…” is inseparable from the “Aboriginal rights and interests potentially affected by the TMEX proposal.” This includes environmental stewardship: the “right and responsibility to manage natural resources and the environment in Burrard Inlet…in accordance with Tsleil-Waututh law” (TWN 2015, 25). When considered from the point of view of a baseline that lies in a future to which TWN holds itself obliged by its laws, mitigation—the key analytical term for IA—takes on new meaning. For example, the Assessment’s focus on the simultaneously physical, spiritual, and governance aspects of subsistence harvesting as a socioecological baseline defines cumulative effects as a holistic concept whose metric is a way of life (TWN 2015, 63).

To assess the key terms of significance and mitigation, the Assessment relies in part on expert reports. The five studies employed methodologies generally adhered to (though disputed) by the consultants of the proponent and the NEB. But they were distinctive in considering the Burrard Inlet on a far closer geographic scale than considered by the proponent or NEB, and under far larger “credible worst case” oil spill volumes scenarios, consistent with the a fortiori principle noted above (TWN 2015, 66-72; see Figure 1). All five reports were undertaken by recognized experts, and all five have the effect of fundamentally challenging the risk assessment (and confidence levels) of the proponent and NEB’s impact risk assessments. These expert reports were updated and submitted as appendixes for TWN’s second submission during the Reconsideration process in December 2018 (TWN 2019).

The most significant difference from the NEB’s IA was TWN’s application of the two-lens analysis set out in the 2009 Stewardship Policy. As applied to an IA, this analysis requires:

“(1) evaluation of the potential negative effects of proposed development on the natural and cultural resource base and (2) if potential negative effects do not exceed Tsleil-Waututh legal limits, a further evaluation of the potential benefits.” This two-lens approach captures the essential elements of the Stewardship Policy’s “two-lens” analysis: in short, “the first lens…looks at potential negative effects. The second lens assesses whether potential benefits outweigh those effects.” (TWN 2015, 50-51)

In application, the first lens determines whether impacts of a project, taking into account mitigations, will harm efforts at restoring the Burrard Inlet. “Tsleil-Waututh stewardship responsibilities dictate that all projects provide a tangible environmental improvement (‘net environmental benefit’ rather than ‘no net loss’)” (TWN 2015, 40). The first lens of analysis poses seven key questions that are articulated in the Stewardship Policy as applicable to environmental assessments conducted by Tselil-Waututh Nation and which provide the framework for considering all the available evidence (including the consultant reports) for the purpose of assessment of the TMEX proposal (TWN 2015, 51). In our view, three of the seven questions in particular stand out as distinct from Canada’s methodology of assessing impact (while both methods assess impacts on socioeconomic, cultural, and title rights):

• Will the TMEX proposal interfere with Tsleil-Waututh stewardship and restoration efforts?

• Does the TMEX proposal have the potential to deprive future Tsleil-Waututh generations of the control and benefit of our waters and lands?

• Does the TMEX proposal represent the best use of lands and resources for the present and for the future?

Each of the seven questions posed through the first lens is informed by the concepts of significance or mitigation, as defined with respect to the restoration baseline as described above. If the TMX proposal had satisfied the requirements of the first lens, the analysis would have proceeded to the second lens, which involves analyzing trade-offs in benefits and negative effects—which in our view resembles the trade-off logics of Canada’s IAs. But on examination under the terms of the Stewardship Policy and its questions, the TMX proposal did not pass the threshold first lens of the test as applied in the Assessment. The analysis did not find that the proposal represented a good land-use decision under the Stewardship Policy, nor could it be said that potential negative effects of the project would not violate Tsleil-Waututh legal principles (TWN 2015, 51). After a deliberation process that included discussion with the TWN community (pp. 82-83), the staff of the Treaty, Lands and Resources Department recommended to the TWN Chief and Council to “continue to withhold TWN’s support for the TMEX proposal” (TWN 2015, 86). This the Chief and Council did.

Conclusions

The approach to mitigation and significance in TWN’s Assessment that led to refusal of consent for the TMX proposal was reiterated in the subsequent Reconsideration process completed in 2019. There the Nation articulated its strongest position. Its rights are infringed “every time an oil tanker transits Burrard Inlet to and from the Westridge Marine Terminal” (TWN 2019, 504). We cannot here deal adequately with the ways the initial Assessment informed later legal proceedings, nor the continuing story of the Nation’s opposition to the project. But we conclude with some reflections on STS and legal pluralism, particularly as they relate to the coproduction of knowledge in the context of future IAs, including those potentially informed by, and in accordance with, Indigenous law.

First, TWN’s approach to assessment has the effect of questioning the essential logical architecture of IAs within project review processes, namely, the essential logic of significance determinations tied inseparably to the search for present or future mitigations that help to justify them. Their mandate of restoration as characterized in the Assessment meant that of the 156 conditions and further recommendations that are part of the Crown’s project approval (both in 2016 and 2019), those applying to the Inlet simply do not constitute mitigations, in the sense used in the Tsleil-Waututh Assessment. Despite the stark results of opposed outcomes of the two IAs that saw the two nations on either side of one another in court, and despite the fact that TWN’s legal-pluralism-in-action was neither encouraged nor enabled by Canada’s IA process, the insights of coproduction and legal pluralism pave hopeful paths forward. When considered as enabling dialogic engagement of normativities and ontologies, IA might enable reflexive questioning of its otherwise apparently stable analytical terms (R. Gibson 2017) rather than serving to alienate (Behn and Bakker 2019; Eckert et al. 2020). Much needed reflection on such possibilities lies ahead generally in the field of science and democracy studies (Chilvers and Kearnes 2020), and this paper hopes to contribute to that within the field of IA theory and practice.

Second, creative hybrids of interest to both legal pluralism and STS scholars suggest themselves in looking at these two IAs side by side through the coproduction lens. As Indigenous-led IAs increasingly are regarded as significant to the potential development of nation-to-nation relationships, TWN’s IA offers a rare (and early) example where creative negotiation across epistemic, conceptual, and methodological boundaries took place, consistent with their legal traditions. That assessment work, and the ongoing restoration work in the Burrard Inlet, are clearly envisaged as a collaboration with scientists from all levels of governments and the public and private sectors (TWN 2017). Given the clear connection between TWN’s scientific work and its legal orders, a coproduction perspective helps describe TWN’s creative and dynamic relation between knowledge and law as a way of knowing the world, expressing perhaps Sybyl Diver’s notion of “Indigenous articulations” (Diver 2017) without requiring, on our part, a taxonomy (Latulippe 2015) that might serve instead to fix “indigeneity” within settler categories (Eckert et al. 2020; Crawford 2018).

Finally, Canada has recognized not only “Aboriginal and treaty rights” under its own Constitution, but also the right to self-governance: Canadian courts have held that Aboriginal title is a collective right (Tsilhqot’in Nation v. British Columbia, 2014); self-governance of that land (and natural resources therein) is implied (Morse 2017). For Tsleil-Waututh, the rights and obligations described in its stewardship policies (2009, 2015) are inherent rights. These rights, including the right to make governance decisions in IA, are not contingent upon Canada’s recognition. We have seen Tsleil-Waututh rights partly recognized by Canadian FCA, requiring “consultation and accommodation.” But these are also rights and obligations inherent to the “People of the Inlet” under Tsleil-Waututh law, syəwenə and unltimately, Cicə siʔe (Creator).

In this paper, we have surveyed how “accommodations” by Canada are in part based on the very methods whereby its concepts of significance of and mitigation in IA are tied exclusively to Canada’s own laws. Likewise, Tsleil Waututh concepts of significance and mitigation are tied to their laws. For both Nations, law and science are coproduced, and this will endure going forward, whether led by Canada, First Nations, or some co-operative hybrid. If Canada moves toward nation-to-nation collaborative approaches, perhaps through braiding legal orders (Borrows et al. 2019), IA under Canada’s new IA law (2019) may also find itself challenged and strengthened by an openness to the ways legal pluralism can empower IA to enable more fruitful forms of collective worldmaking.

Author Biographies

Ian G. Stewart is an associate professor of humanities, University of King’s College, Halifax, Canada. He received his PhD in history and philosophy of science at the University of Cambridge, his MA in history and philosophy of science and technology from the University of Toronto, and his BSc (Physics) from Trent University.

Moira E. Harding is a practicing member of the Nova Scotia Barrister’s Society based in Halifax, Nova Scotia. She received her Bachelor of Laws/Juris Doctorate (JD) with the Schulich School of Law and Certificate in Environmental Law with the Marine and Environmental Law Institute at Dalhousie University, and her BA (Philosophy) at Harvard University.