BC Nature considers judicial review of JRP report
Pipeline panel erred on grizzly, caribou: expert Pipeline panel erred on grizzly, caribou: expert
The construction and operation of the proposed Northern Gateway pipeline could be "the death warrant" for some caribou and grizzly populations, according to one intervener in the process.
University of Victoria environmental law professor Chris Tollefson, who represented B.C. Nature and Nature Canada during the pipeline's environmental assessment, said the decision by the Joint Review Panel last week to recognize the significance of the impact the pipeline will have on those two species, but deem it justified, was a mistake.
"I recognize the problem for grizzly and caribou here is one that has been decades in the making and it's an accelerating problem that's associated with a bunch of other development activities," Tollefson said Monday. "But at the end of the day it will make a difference to caribou and to grizzly if this project goes forward and that difference could be the tipping point and could be the death warrant for those species or at least for some of those herds."
The way the three-member panel handled some of the caribou evidence is one of the reasons his clients are considering filing for a judicial review of the findings. Anyone wishing to the challenge the panel's findings must complete an application to the federal court within 30 days of the report's release.
"We are looking very seriously at that prospect," Tollefson said. "Our client is ready to consider going down that road and if so we will be filing within 30 days."
The panel issued its 500-plus page report on Thursday afternoon, which recommended the federal government allow the project to proceed. The final decision will come in the first half of 2014 when the federal cabinet decides whether or not to issue a certificate.
In order to build and operate the heavy oil pipeline from northern Alberta to Kitimat, Northern Gateway must clear and maintain a right of way. That open space, when combined with other existing open spaces in the area like other pipelines, electricity transmission lines and roads, makes it easier for wolves to attack and kill already vulnerable caribou herds. For grizzly bears, those same open areas make it easier for hunters to kill them.
In both cases, the panel found that the Northern Gateway project alone doesn't cause the effects to become significant, but when the cumulative impacts of other existing or planned projects is factored in the risk increases.
Caribou and grizzly were the only two species the panel determined would be significantly and adversely affected if the pipeline was built, but those effects were justified because of the positive economic impact the project could create.
"I think the evidence was incontrovertible that those species are most certainly at risk and that they effects would be significant and the mitigation that were being proposed, the company admitted itself, it lacked confidence," Tollefson said.
Among the grounds he believes exist for a potential court challenge was how the panel handled the absence of evidence from Northern Gateway on how the pipeline would impact the Bearhole-Redwillow caribou herd. He said the panel should have determined the the application was incomplete and sent Northern Gateway "back to the drawing board" rather an issue a positive recommendation.
"The panel's approach is we can issue the permit, we can move forward with the approval from the [National Energy Board] and deal with the inadequacy and the uncertainties of this issue down the road and we say that is going to be disastrous for the caribou and also wrong in law," he said.
Tollefson also took issue with the way the panel's report was prepared and presented. He said it was it was too general and lacked explicit explanations and references to expert testimony for the conclusions it reached.
"My impression is this report was rushed by a timeline that was imposed upon them," Tollefson said of the federal government mandated Dec. 31 deadline. "They had to get it out by the end of the year, consequently it appears to me that they did not include the level of detail and analysis that would have allowed for a level of transparency in terms of reasoning that would have helped all of us understand the conclusions that they reached."
A third area for a potential challenge, according to Tollefson, was the panel's conclusion that there won't be significant effects from spills. He said Northern Gateway successfully convinced the panel that since the risk of a spill was low, then it should rule that the impact is insignificant.
"I think that's a very live issue going forward," he said. "Just because it's low probability does not mean from a significance point of view the panel doesn't have to turn its mind to that legal question under [federal environmental assessment legislation]."
Among the conclusions Tollefson found surprising was the determination that the pipeline and associated increase in tanker traffic off the north coast wouldn't have a significant impact on marine mammals.
One piece of evidence the panel didn't get a chance to consider because it wasn't available during the hearings was the federal government's recovery strategy for humpback whales. It found that a key piece of habitat lies in the area around proposed tanker routes.
Although it wasn't part of the panel's purview, Tollefson said it will be in the hands of cabinet when it makes the final decision.
"I think that's a game changer," he said. "That strategy will be before cabinet when cabinet makes its decision."
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