Ruling could affect more than Northern Gateway
Province can’t rely on federal pipeline approval
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 decisionmaking on the project.
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. He noted the court ruled B.C. abdicated its powers to the federal government over the Northern Gateway project by entering into the so-called equivalency agreement with the NEB — the same action it took on the Kinder Morgan project.
“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.
“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,” said Gitga’at spokesman and member Art Sterritt.
“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 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. She added she doesn’t yet know whether the province will appeal the ruling. NEB spokeswoman Tara O’Donovan declined to comment on what the ruling would mean for other projects under review.