Ruling could affect more than Northern Gateway
A B.C. Supreme Court ruling Wednesday that brought a halt to Enbridge’s $7.9-billion Northern Gateway project could have wider environmental implications for the province.
Justice Marvyn Koenigsberg found the B.C. government abdicated its statutory duties and breached its duty to consult First Nations when it signed and failed to terminate an equivalency agreement that handed the federal National Energy Board sole jurisdiction over the environmental assessment decision-making on the project.
Justice Koenigsberg said the province can’t rely on the NEB for environmental approval.
Lawyer Joseph Arvay, lead counsel for petitioners the Great Bear Initiative Society and Gitga’at First Nation (collectively the Coastal First Nations), said Wednesday the ruling “makes it clear that the province has jurisdiction over this pipeline so long as the conditions reflect its competence over the environment.”
He said the province breached its duty to consult and accommodate First Nations on the project, calling it a “very significant” decision that goes beyond Northern Gateway.
“The court said that the province abdicated, gave away, its powers to the federal government over the Northern Gateway project when it entered into this so-called equivalency agreement with the NEB. But it entered into exactly the same equivalency agreement with the NEB on the Kinder Morgan project.”
Avery added: “The province should be delighted, even though it was perhaps shown to have failed in its statutory constitutional duties, because we demonstrated that it had more power than it did. So the court essentially gave it the legal backbone that up to this point it failed to use. I hope the province will accept it.”
First Nations hailed the ruling as a major setback for the controversial pipeline plan.
“We’re running out of coffin nails now,” said Gitga’at spokesman and member Art Sterritt. “The reality is if Northern Gateway wants to try to go ahead after all of this, you’re looking at a whole new process whereby British Columbia is going to have hearings and sit down with First Nations up and down the routes wherever there’s any effects, and then decide whether or not Northern Gateway meets the conditions that they put in place.”
“This is a huge victory that affirms the provincial government’s duty to consult with and accommodate First Nations and to exercise its decision-making power on major pipeline projects,” said Arnold Clifton, chief councillor of the Gitga’at First Nation.
The ruling means the province must now make its own environmental assessment decision regarding the Northern Gateway pipeline, and that it must consult with and accommodate First Nations along the pipeline route about potential impacts to their aboriginal rights and title.
Koenigsberg ruled that the province breached “the honour of the Crown” by failing to consult with the CFN, and the Gitga’at specifically.
“The province is required to consult with the Gitga’at about the potential impacts of the project on areas of provincial jurisdiction and about how those impacts may affect the Gitga’at’s aboriginal rights, and how those impacts are to be addressed in a manner consistent with the honour of the Crown and reconciliation,” Koenigsberg said in his decision.
The ruling means that until the province makes a decision on the pipeline and issues an Environmental Assessment Certificate, none of the approximately 60 permits, licenses and authorizations necessary for the project to proceed can be issued.
It is the latest setback for the project, which aims to ship 525,000 barrels of oilsands crude a day to Kitimat for export to Asia. The federal Liberal government has said it wants to formalize a tanker ban on B.C.’s north coast, a move many say would essentially kill the project.
Northern Gateway communications manager Ivan Giesbrecht said in a statement Wednesday that Enbridge still plans to proceed with the project.
“Approval of the project falls within federal jurisdiction, and this decision from the British Columbia Supreme Court does not change that approval or the project’s environmental assessment,” he said.
Asked if Enbridge would appeal the court decision Giesbrecht said: “This comes down to a jurisdictional matter between the federal and provincial governments. We support and welcome the court’s direction for more consultation with First Nation and Métis peoples.”
B.C. Justice Minister Suzanne Anton said the province is reviewing the Supreme Court decision, but the interpretation so far is that the province won’t have to duplicate the entire review process.
“Our reading of it is not that the judge is requiring us to do everything all over again. But what we do have to do is assess our B.C. requirement as per our B.C. statute and make sure that we’re complying with those requirements,” added Anton, noting that she doesn’t yet know whether the province will appeal the ruling.
Tara O’Donovan, a spokeswoman for the National Energy Board, declined to comment on what the ruling would mean for other projects under review.
Earlier this month, Enbridge said it has a plan to meet regulatory deadlines on the pipeline despite the looming expiry of NEB approval this year.
Among deadlines in the 209 conditions the project must meet NEB approval expires if construction has not started before the end of 2016.
And the Calgary-based company must have signed commitments from oil producers to ship crude on the pipeline, making up at least 60 per cent of line capacity, six months before construction starts.