June 17, 2014 – Anna Mehler Paperny, Global News
The federal government’s approval of Enbridge’s Northern Gateway pipelineis somewhat anticlimactic: It’s been expected since a Joint Review Panel gave the project a green light (with 209 conditions) late last year.
But now the gloves come off: A quintet of lawsuits seeking to overturn that review panel decision, put on hold in light of Ottawa’s pending decision, is poised to recommence, likely amid more litigation taking issue with the decision itself.
The deluge of additional lawsuits has already begun, with 28 First Nations – three of whom had already filed suits – saying they intend to contest Ottawa’s decision in court.
And B.C. Nature, one of the environmental groups that had filed suit contesting the review panel decision, said Tuesday it’s filing another lawsuit against the federal government’s decision.
“The lack of explanation or rational analysis in this process is startling,”Chris Tollefson, whose University of Victoria Environmental Law Centre is representing B.C. Nature, said in an email Tuesday.
“Both the JRP decision and the Cabinet decision fail the emerging legal test of ‘transparency and intelligibility.’ This is especially so in relation to the JRP’s conclusion, and the Cabinet’s decision to endorse, the idea that the significant adverse environmental effects this project is likely to have on caribou/grizzly are ‘justifiable.’”
READ MORE: Legal challenges could be Northern Gateway’s undoing
An omnibus of these combined lawsuits could mean weeks of hearings as soon as this fall. Even if there’s a decision as early as next year, that could be appealed.
The plaintiffs, largely First Nations and environmental groups, claim – respectively – that Ottawa failed in its constitutional duty to consult with aboriginal groups and that the review panel didn’t pay sufficient heed to the environmental damage a spill – or simply pipeline construction – could wreak on wildlife and protected species.
Some of the suits filed in response to the Joint Review Panel decision also seek to overturn any further approval from the federal government.
READ MORE: Where is Northern Gateway’s support strongest?
Ottawa’s decision is “one step down the pathway,” says Ecojustice lawyer Barry Robinson, who’s representing plaintiffs in one of the five cases. “But I would say, overall, it doesn’t change a lot.”
Leaving aside the slew of litigation, he noted, “you still have a wide range of First Nations issues unresolved, and community opposition unresolved” – even the B.C. government has expressed reservations that were never fully assuaged.
Northern Gateway’s easily the least popular pipeline in Canada. Enbridge has admitted it was taken aback by the broad opposition from First Nations, local communities and urbanites alike – and it applied those lessons in public relations to Line 9, which received National Energy Board approval in March.
READ MORE: Alberta to BC: Still want Northern Gateway ‘fair share’? Ask Enbridge
Robinson hasn’t asked for an injunction halting any work on Northern Gateway: Given the pre-construction studies Enbridge still has to do, he said, he doesn’t think that’s necessary.
“That’s really up to Northern Gateway, I guess, as to whether they want to proceed while litigation is under way, and take the chance there’s some reversal,” he said.
“The current judicial review that we have on behalf of our clients would ask that any approval be quashed, so that would stop the project. …
“If the backhoes were sitting with the engines idling and ready to go, I think maybe people would be thinking of filing an injunction to stop that.”
In an emailed response to questions from Global News, Enbridge spokesman Ivan Giesbrecht said the lawsuits, even if there are more of them after Ottawa’s latest verdict, “cannot extend indefinitely. We anticipate this would be a 12-month process and the judicial reviews being heard by the court in mid-2015.”
“It’s important to note,” he said in a subsequent email, “that these legal challenges do not mean we will stop working.
“Satisfaction of pre-construction conditions is expected to take up to a year – which is roughly equivalent to the time required for the judicial review by the Federal Court of Appeal, if that Court grants leave to potential judicial review applications.
“We also need to continue engaging with Aboriginal communities. These activities can happen simultaneously and will not interfere with each other’s timelines or progress.”
Popular opposition to the pipeline doesn’t help his clients’ legal case, Robinson said. But it’s a notable indication of the doubts that have surfaced regarding pipeline safety.
“People have a much greater awareness of the risks involved,” he said. “I think simple questions that were never answered despite 18 months of hearings – Does diluted bitumen sink or float, and how do you clean it up if it sinks? That would seem like a fairly basic question. And that was never answered.”
The cases stand a good chance of forcing Northern Gateway back to re-do a round of assessment – be it review panel or First Nations consultation or both – said University of British Columbia law professor Gordon Christie.
“There’s a reasonable chance a federal court would look at this and say, ‘There’s flaws in the process, re-do parts of it’ or ‘Re-do the entire thing,’” he said.
“In my mind, it seems the consultation just wasn’t adequate. But I’m not a judge,” he hastens to add. “That’s just my opinion.”
Even the Prime Minister’s appointed envoy on aboriginals and energy developmentfound the federal government needs to do a lot more to foster trust and relationships with aboriginal groups when it comes to these energy projects.
The definition of “meaningful” consultation is fuzzy at best. It’s possible this case could help make it more concrete.
And while he admits it wouldn’t help them in a federal court, Christie hopes lawyers for First Nations – many of whom are in treaty negotiations that could last years – make arguments under their own sovereign laws, not just Canadian ones.
“These are First Nations, they consider themselves to be, to some degree, sovereign over their territory, and they apply their own legal systems to the question of whether the pipeline should be approved and they say ‘No, we shouldn’t approve it,’” he said.
“They’re arguments that won’t get very far in Canadian courts but they have to be made, because they are part of the history of this province – without treaties, these First Nations really have an uncertain status in Canada.”