Pipeline in court’s hands
Federal Court judges hold the keys to how the next step in the ongoing Northern Gateway pipeline saga will play out and some of their decisions could come quickly, according to one legal expert.
With at least five groups filing two judicial requests each into the joint review panel's final report, the court must decide how those different applications will proceed and may need to make some rulings before the federal cabinet makes its decision in the coming months.
Among the first thing the court needs to decide, according to University of Calgary law professor Nigel Bankes, is whether or not the applications filed by BC Nature, a coalition of environmental groups, the Haisla Nation, the Gitxaala First Nation and the Gitga’at First Nation should be heard jointly or separately.
"It's a discretionary power and I guess the judge who would hear that matter would presumably have to be satisfied that all of the issues could be dealt with in a single proceeding," Bankes said, adding he expects either project proponent Enbridge or the federal government will likely ask they be joined together.
All five groups have filed at both the Federal Court level and with the Federal Court of Appeal, but Bankes believes the latter is where the cases will end up being heard because the National Energy Board rules stipulate its reports must be appealed to the higher court. If that's where the reviews do end up, it will eliminate one level of possible appeal, which could speed up the overall process.
"Strategically if you were the Crown or Enbridge, you'd want to get this in the Federal Court of Appeal now, not the trial division," he said.
How the cases will play out once they're heard in some level of federal court is a whole other question. At least one group is asking for the court to deny the federal cabinet the ability to make its decision until the court process is played out. Bankes said the urgent nature of that request could also lead to a quick decision.
"That part of the application may come much more quickly," he said. "I think the Ecojustice lawyers may well be saying clearly we need to have that matter heard on the existing record before the 180 days have lapsed."
The more substantive issues surrounding the report itself could take more time to sort through. The two applications by environmental groups argue that were gaps in evidence that need to be addressed before the report can be considered complete and the First Nations group claim the panel didn't adequately consult their communities.
However since the panel's report is a recommendation to the federal cabinet rather than a decision in its own right, some legal scholars have said any judicial review requests at this stage are premature. Bankes expects that argument will be made during these proceedings, but he's not sure it will be successful.
"I tend to think that these recommendations are so concrete - it's not like it's link one in a 99-link chain, it's link 98 in a 99-link chain," he said. "I think that the matters are concrete enough at this stage that I don't think the court is going to buy that argument from the federal Crown or Enbridge at the of the day - but that's not going to stop the federal Crown from making it."
If the court does side with the applicants, it does not have the power to throw out the Joint Review Panel's report or even modify it; but the court can ask the panel to go back and reconsider certain conclusions it reached.
"The job of the court is not make the decision that the tribunal should have made but to send it back with instructions to do a better job," Bankes said. "The federal court can never assume the authority that the National Energy Board has or that cabinet has, ultimately the most it can do is say you got it wrong, go back and do it better next time."
When a decision is reached at the federal court level, one side would have the ability to seek leave to appeal to the Supreme Court of Canada.
Judicial reviews can also be launched again after cabinet issues its decision on whether or not Northern Gateway should be given a certificate to move forward with the project. Any decisions in those cases could also be appealed.
"It's going to get more complicated, rather than less complicated," Bankes said.
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