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A worker uses a small boat to move logs on the Douglas Channel at dusk in Kitimat, B.C., in this Wednesday, Jan. 11, 2012 photo. Officials in British Columbia privately warned the province lacks the ability to manage oil spills from existing and future oil traffic, and even a moderate spill would overwhelm their ability to respond, documents show.Darryl Dyck/The Canadian Press

The legal team representing B.C. at the Enbridge Northern Gateway hearings has defined the level of oil-spill response capacity that the province would require before approving any oil pipeline construction.

Even as the B.C. government is negotiating with Alberta on clearing the way for oil pipelines, an environmental watchdog said Wednesday the clarity contained in the B.C. government's written argument tabled at the Enbridge hearings almost eliminates any pathway to "yes."

It has been more than a year since Premier Christy Clark set out her five conditions which must be met before her government would offer a green light to oil pipelines across her province.

Last week, Ms. Clark said in an interview that she is optimistic B.C. and Alberta can agree on a way forward to meet those conditions. She stressed that her demands "are not intended to prevent economic development, but intended to be a path for success."

But Eric Swanson of the Dogwood Initiative said that would be difficult unless the province backed away from its detailed legal position staked out on Enbridge earlier this year. "You can't negotiate away the facts contained in the province's final argument," he said.

The Dogwood Initiative has led a "no tankers" campaign seeking to block any new pipelines that would increase oil tanker traffic in B.C. waters.

Mr. Swanson said the province's final submission establishes a far higher standard for oil-spill response than the ambiguous terms that have been used by politicians to date. While the Premier has repeatedly demanded "world-class" or "world-leading" spill-response measures in place, the legal arguments are more explicit.

"World-class or world-leading can mean anything to anybody," Mr. Swanson said.

The document defines the goal as "effective response" to oil spills – a term that is used 62 times in the 99-page submission. Although the document was filed in May, most of the attention was diverted to the province's overall response – which concluded that Enbridge had not yet made the case to earn pipeline approval.

"Given the real potential for spills to occur, and the devastating effect of a spill should a significant one take place, the province submits that [Enbridge] must show that it would be able to effectively respond to a spill," the report states. "The province submits that it has failed to do so."

That leaves the opportunity for Enbridge to come back with a new proposal, although it would be one that would not be subject to a public process for further review.

Coupled with Ms. Clark's outreach to Alberta, it appears the province may be softening its stance since the federal panel wrapped up public hearings earlier this year. A final decision from the federal government is expected next year.

But Mr. Swanson said there was little wiggle room left by the province's legal team, which concluded that an effective response to an oil spill "will be impossible or severely constrained" in a wide range of scenarios. "For most open ocean spills, no oil from a spill is recovered," the report said.

"The question for British Columbians is, given that effective response isn't always possible, do we want to accept that risk at all? That's what is lost in her rhetoric about 'pathways to yes' and her deliberately vague five conditions," Mr. Swanson said.

Andrew Weaver, the Green Party MLA, said the Premier is sending mixed signals about her position on oil pipelines. "The submission was unequivocal in its rejection of the Enbridge pipeline. It should have been dead with that," he said. "Now they are becoming warm and fuzzy on oil. It seems we are making up policy as we are going along."

Spencer Chandra Herbert, the NDP environment critic, said it is time for Ms. Clark to take a clear position on the pipeline debate. "The legal department took that point of view, but do the politicians take that view? The government is hoping to take a muddled position, to have it both ways."

Environment Minister Mary Polak could not be reached for comment. A ministry official released a statement that reads: "Our five conditions for heavy oil pipelines remain unchanged."

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