A Canadian court has knocked Enbridge’s planned Northern Gateway pipeline off its feet.
Whether that means the project is down and out is not yet clear.
But the finding by the Federal Court of Appeal, although seen as an indictment of the Canadian government and not Enbridge, could be a telling blow to the 12-year effort to build twin pipelines - one to export 525,000 barrels per day of oil sands crude to Asia-Pacific markets and one to import 193,000 bpd of condensate to blend with the bitumen and facilitate pipeline transportation.
Northern Gateway President John Carruthers said in a statement that the company will respond to the court’s directive and do its bit in consulting with aboriginal groups.
Otherwise, it remains committed to the project and “protecting the environment and the traditional way of life of First Nations and Metis peoples and communities along the project route.”
In late 2014, the Canadian government through the cabinet of former Prime Minister Stephen Harper endorsed a National Energy Board recommendation of approval for Northern Gateway, along with 209 conditions that included reaching agreement with affected aboriginal communities.
Responding to legal challenges by eight First Nations, four environmental groups and one labor union, the federal court, in a 2-1 decision, delivered a blunt and pointed criticism of the government.
It said there had been a failure to “engage, dialogue and grapple with the concerns expressed in good faith by all of the applicant/appellant First Nations.”
The court said there has been “no indication of any intention to amend or supplement the conditions imposed” by the NEB’s joint review panel.
There has been no “real or sustained effort” by the Canadian government to pursue meaningful two-way dialogue beyond assigning someone to merely “take notes,” it said.
The ruling said the government “offered only a brief, hurried and inadequate opportunity ... to exchange and discuss information and to dialogue.”
Court praises Enbridge
But the court praised Enbridge for its laudable consultation efforts and for doing exactly what it needed to under the joint review panel’s directive.
Carruthers did not agree that the court ruling amounts to a veto of Northern Gateway.
“It just sets a high standard for consultation” by identifying what Enbridge has already been doing over the past two years in “building trust, respectful dialogue and creating meaningful partnerships,” he said.
The court acknowledged the success Enbridge has achieved in securing 31 aboriginal equity partners representing 70 percent of the communities along the proposed pipeline right of way.
David Collyer, a former president of the Canadian Association of Petroleum Producers, told the Calgary Herald that the court has also added to the obstacles confronting investment by domestic or foreign entities in Canadian resource or industrial projects.
He said investors were already “uncomfortable” about the investment climate in Canada and the court ruling is “yet another shift of the playing field. That concerns me the most.”
Northern Gateway opponents have rated the court decision as “landmark.”
Peter Lantin, president of the Haida Nation council, said there is no longer any room for another nail in the project’s coffin, while Ecojustice lawyer Barry Robinson said those who have fought Northern Gateway from the outset now have the “backing of the courts.”
Potential tanker ban another issue
The odds of the pipeline ever getting built will further decrease if the Canadian government lives up to its promise to formalize a ban on oil tanker traffic off British Columbia’s northern coast.
The pro-pipeline factions searching for shreds of hope in the court decision were encouraged by a finding that the Canadian government is entitled to make a final decision on a resource project by balancing the economic, cultural and environmental considerations.
In his dissenting opinion, Judge Michael Ryer, said the government adequately consulted with First Nations and rejected the assertion that the pipeline would interfere with unresolved aboriginal claims to land title.
The federal court said the government must now reconsider submissions that are already on the public record in order to consider the concerns of First Nations, or it can redo aboriginal consultation.
Either way, once that process is completed, approval of the project should go back to the federal cabinet for consideration.
NEB doubles intervener funding
In an effort to head off another round of legal challenges, the NEB has doubled funding to help interveners participate in its hearings on TransCanada’s Energy East pipeline to deliver 1.1 million bpd to refineries in Ontario, Quebec and New Brunswick and an export terminal at Saint John, New Brunswick.
The federal regulator said it is the largest amount ever allocated by the board as it seeks to conduct a more engaged hearing process.
The Energy East panel is scheduled to hear from 337 interveners and 271 commenters, while those not granted participation rights will have the chance to express their views through expanded public engagement activities.
The hearings will take place in 10 locations in six of Canada’s 10 provinces and last from early August to December.
The NEB said it received 2,652 applications to participate, of which more than 100 were duplicates and 1,450 were submissions by form letter about climate change and upstream greenhouse gas emissions.
It said the federal government’s environment and climate change department will separately assess the potential upstream emissions.
