Constitutional questions on pipeline horizon
While most intervener groups in the Northern Gateway pipeline environmental assessment hearings are preparing their final arguments, others are getting ready to make their case on the constitutionality of the process.
After the final oral arguments conclude, likely next month, the National Energy Board's Joint Review Panel will spend one day dealing with any constitutional arguments that have arisen over the course of the hearings.
Two First Nations groups, the Gitxaala and Heiltsuk, have raised questions about whether the National Energy Board has the authority to grant a certificate to Northern Gateway to move into the next phase of the process given the outstanding Aboriginal land and title claims and the Crown's duty to consult First Nations about projects on their traditional lands.
Northern Gateway is seeking permission to build a heavy oil pipeline to move oilsands products from northern Alberta to Kitimat for export to Asian markets.
"Since prior to contact, Gitxaala members have exercised, and continue to exercise, their Aboriginal right to hunt, fish and trap in areas of Gitxaala Traditional Territory that would be traversed by, or adjacent to, the proposed tanker routes for the Project," the group wrote in one of its legal filings. "The proposed Project will infringe Gitxaala's Aboriginal title and its Aboriginal rights to hunt, fish and gather."
In its filing, the Gitxaala list reasons why the proposed pipeline would harm their traditional practices. They argue that the Joint Review Panel has the authority to rule on constitutional issues but suggest it should put any questions about jurisdiction to the Federal Court of Appeal as a pre-emptive measure.
To complicate matters, changes to federal law last year mean the final decision to issue a certificate rests with the federal cabinet, rather than with the National Energy Board. However the Gitxaala argue that since the board will be the one issuing the certificate in the end, it retains the authority to ensure the constitution is upheld.
The federal government argues that the panel should not rule on the constitutionality of a certificate which has yet to be issued. In a letter dated Friday, the federal Attorney General's office confirmed it would be participating in the constitutional oral arguments. Department of Justice prairie region general counsel Kirk Lambrecht will present the government's case, which is expected to take about an hour.
The provincial government has written in its filings that it supports the federal government's view.
Northern Gateway said it plans to address the constitutional issues in its written final argument which must be filed by May 31. To date the company has argued in its filings that a separate hearing on constitutional issues is not required.
"Northern Gateway has put much effort in consulting First Nations and addressing concerns," the company said Tuesday in a statement. "We’d welcome the opportunity to continue a dialogue with First Nations to enhance a mutual understanding of the issues and find real solutions to concerns."
Locally, the Carrier Sekani Tribal Council has boycotted the Joint Review Panel process and chief Terry Teegee has said his group plans to launch its own constitutional challenge at a later date.
As the JRP wrestles with constitutional questions, federal envoy Doug Eyford will be putting the final touches on his report about how proposed oil and gas pipelines - including Northern Gateway - will impact First Nations in B.C. Eyford was appointed to the position in March and reports directly to Prime Minister Stephen Harper. His initial report is due by the end of June with a final report expected in November.
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