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Gateway in a mess BC Supreme Court delivers setback to Enbridge, rules provincial government failed to meet obligations to consult with First Nations GARY PARK For Petroleum News
From the time it was launched early this century, Northern Gateway has faced premature and often exaggerated reports of its demise. Now they have to be taken seriously.
A British Columbia Supreme Court ruling has brought the C$7.9 billion project by Enbridge to a halt in a verdict that has implications far beyond the twin-pipeline system into the realm of any activities that affect First Nations lifestyles and their land, notably Kinder Morgan’s proposed expansion of its rival Trans Mountain pipeline.
Justice Marvyn Koenigsberg said the British Columbia 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 Canada’s National Energy Board sole jurisdiction over the environmental assessment decision making on Northern Gateway.
He said the provincial government cannot rely on the NEB for environmental approval.
Joseph Arvay, the lead attorney for the petitioners - the Great Bear Initiative Society and Gitga’at First Nation (collectively the Coastal First Nations) - said the ruling now “makes it clear that the province has jurisdiction over this pipeline so long as the conditions reflect its competence over the environment.”
He said provincial government handed its powers over Northern Gateway to the Canadian government when it entered into a so-called equivalency agreement with the NEB.
But that abdication was invalid now that the court has established that the province has failed to use its “legal backbone,” he said.
Koenigsberg ruled that the province is required to consult with the Gitga’at about the potential impacts of the project on areas of provincial jurisdiction and how they might affect the Gitga’at aboriginal rights.
BC environmental assessment The ruling means that until the British Columbia government makes a decision on the pipeline and issues an environmental assessment certificate, none of the 60 permits, licenses and authorizations necessary for the project to proceed can be issued.
To many legal and aboriginal experts that means rolling the project back several years to restart the environmental hearings.
However, a Northern Gateway spokesman said Enbridge still intends to proceed with the pipeline based on the 209 conditions issued 18 months ago by the NEB and the federal government.
He insisted approval of the project “falls within federal jurisdiction and (the court decision) does not change that approval or the project’s environmental assessment.”
The spokesman said the future of Northern Gateway now comes down to a “jurisdictional matter between the federal and provincial governments.”
BC’s initial interpretation British Columbia Justice Minister Suzanne Anton said her initial interpretation of the court decision is that the province will not have to duplicate the entire review process and, pending an evaluation of the judgment, her government does not know whether to appeal.
“What the court has said is we can rely on the process that was in front of the National Energy Board, but we do need to make our own independent provincial decision based on our own provincial legislation,” she said.
At the time the “equivalency agreement” was negotiated to streamline the regulatory process, the province trumpeted the pact as something that would reduce “byzantine bureaucratic practices” and help create jobs.
Opponents celebrate That assessment has rebounded, with Northern Gateway opponents celebrating the court ruling.
“We’re running out of coffin nails now,” said Gitga’at spokesman Art Sterritt.
“The reality is that if Northern Gateway wants to try going 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 ... and meet the conditions that they put in place,” he said.
Sterritt said the British Columbia government was “playing a bit of politics” by handing over its power at the environmental assessment stage, then opposing the project.
Now, he said, British Columbia must accept that it must listen to First Nations and work with them “even when they don’t like a project.”
“You’re talking about a whole new review process here,” he said. “I’m not sure that Northern Gateway or anyone else would have the appetite for that.”
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