Courts could overturn pipeline because of “unreasonable” consultation with natives, feds cautioned
OTTAWA — Senior bureaucrats from multiple federal departments have been warned that the review process for a proposed pipeline linking Alberta's oilsands to the northwest coast of British Columbia could be overturned by the courts because of "unreasonable" consultation with aboriginal communities, newly released internal records reveal.
The warnings, delivered by the Canadian Environmental Assessment Agency, noted that the federal government faces "adverse legal consequences" if it fails to offer adequate funding to help First Nations communities fully participate in consultations with the necessary resources to review evidence, material and proposals made by Alberta-based Enbridge regarding the Northern Gateway Pipeline project.
"Lack of funding may limit the ability of aboriginal groups to reasonably and meaningfully participate in the consultation and environmental assessment process," said the agency in a presentation that was released by the Department of Fisheries and Oceans through access to information legislation. "If aboriginal groups cannot consult meaningfully due to a lack of resources and capacities, and if the Crown fails to provide adequate funding, (there is a) moderate to high risk that the courts would find the consultation process to be unreasonable."
The agency, responsible for evaluating potential environmental impacts and damage from proposed development projects, prepared the presentation in November of 2010 to advise a committee of deputy ministers about "risks related to underfunding Aboriginal consultation in relation to Northern Gateway," which would cut through the Great Bear Rainforest, one of the largest intact temperate rainforests remaining in the world.
"Aboriginal groups continue to express frustration and concern over lack of funding to enable meaningful and reasonable participation and consultation," the agency told the bureaucrats in the presentation.
It estimated that dozens of different groups requested about $19 million in funding, but that only about $2.8 million was awarded in the first few phases of the "consultation" process.
"Funding was awarded to 38 (aboriginal) recipients, but at significantly reduced funding levels to fit within the available budget," said the presentation.
The agency, which is facing dramatic cuts from the federal government to its own budget, also indicated it would work with all federal departments involved "to develop options for funding post 2012," to address gaps.
Members of Prime Minister Stephen Harper's cabinet have recognized the government has a "moral and constitutional obligation" to consult with First Nations on the assessment of major projects such as Northern Gateway.
But environmental law experts and First Nations groups say they are still waiting for the government to boost resources that would help them engage with experts and study and respond to thousands of pages of information included in Enbridge's proposal.
Josh Patterson, a staff lawyer from Vancouver-based Westcoast Environmental Law, said he wasn't surprised to hear the warnings coming out of the agency.
"I think we're going to see a multiplication of legal challenges and risks if this (Northern Gateway) project is approved," Patterson said. "I think it's going to be tied up for a long time, and this statement from within the government only confirms what First Nations have been saying all along, which is that the federal government is not doing an adequate job of involving them in the decision-making in this process."
Jackie Thomas, the chief of the Saik'uz First Nation from British Columbia, will be travelling to Ottawa next week and is hoping some federal representatives will agree to talk to her community directly and respect its rights.
"I think they're totally missing their mark here in British Columbia, especially in terms of this project," said Thomas.
Dozens of First Nations communities have signed a declaration that would ban the Enbridge project and other proposed pipelines from crossing their land in order to protect the Fraser River watershed.
The federal government has promoted expansion of pipeline capacity to the west coast to help diversify export markets for the oilsands. It has recently announced a new monitoring program to address concerns about environmental damage from the oilsands, but was warned by senior bureaucrats that some damage from the industry could be permanent and pose a "financial risk" to the province of Alberta.
The Department of Fisheries and Oceans has also warned that the resulting tanker traffic from the proposed shipping terminal in Kitimat, B.C., could threaten critical habitat of the humpback whale and other marine species at risk.