B.C. First Nations challenge Northern Gateway pipeline in new court action
A new wave of court actions has been filed in relation to the Northern Gateway project, adding to the legal challenges dogging the $7.9-billion proposal and raising more questions about if and when it will proceed.
The latest lawsuits also underscore the significance of a recent Supreme Court of Canada decision related to B.C.’s Tsilhqot’in Nation, which confirmed the group holds aboriginal title to a specific tract of land in the province and is being used as a springboard for new actions challenging Ottawa’s approval of Northern Gateway.
On Monday, the Gitxaala Nation and seven other groups, including the Council of the Haida Nation and the Heiltsuk Tribal Council, announced that they had filed for leave to apply for judicial review of the federal government’s approval of Northern Gateway.
Under regulatory changes introduced last year, opponents seeking to overturn federal cabinet decisions through a judicial review must first seek leave from the Federal Court of Appeal. The deadline to do so was Monday.
“The Gitxaala Nation has followed all the rules,” Gitxaala acting chief Clarence Innis said at a press conference in Vancouver where First Nation groups had gathered to announce the court actions.
“We were involved with the Joint Review Panel, we provided evidence, we expressed concerns … those were all ignored. Canada has a duty to consult and that hasn’t happened.”
Other court actions were under way before the government issued its conditional approval for Northern Gateway in June. In January, five groups – including B.C. Nature – filed lawsuits challenging the recommendation of the Joint Review Panel that recommended to government that Northern Gateway should proceed.
Those cases are in progress.
In all, about a dozen court challenges related to Northern Gateway are under way, raising the possibility of months of court disputes.
One of the groups that announced legal action Monday was the Gitga’at First Nation, which says its ancestral territory takes in about 7,500 square kilometres of land and water including part of Douglas Channel, the proposed route for Northern Gateway tankers.
As well as seeking leave to apply for judicial review, the Gitga’at First Nation – emboldened by last month’s Supreme Court Tsilhqot’in ruling – is also seeking a declaration of aboriginal title over areas where Enbridge tankers have been deemed to pose the greatest threat to the Gitga’at people.
The Gitga’at raised title-related concerns to the Joint Review Panel but those concerns were not addressed, said Michael Lee Ross, a lawyer representing the Gitga’at.
“They’ve got the evidence, they have made a good case for title to the areas they are talking about and they are asking the Federal Court of Appeal … to declare the federal government unjustifiably infringed their title in approving this project,” Mr. Ross said.
The most recent legal actions were “not unexpected” and Enbridge remains confident in the joint-review-panel process, Enbridge spokesman Ivan Giesbrecht said.
“After reviewing thousands of pages of evidence and hearing hundreds of hours of expert testimony, the Panel concluded that Northern Gateway can be built and operated safely and that it is in the national interest of our country,” Mr. Giesbrecht said in an e-mailed statement.
Enbridge is currently focusing on 113 preconstruction conditions placed on the project and anticipates that process will take between 12 and 18 months, Mr. Giesbrecht added.
Ottawa announced its approval for the project – subject to 209 conditions – on June 17. Backed by Calgary-based Enbridge, the twin-pipeline Northern Gateway project would carry oil from Alberta to Kitimat, B.C., where it would be loaded on to tankers for shipment to export markets.