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Pipeline in the balance Canadian federal appeal court judges reserve decision on Northern Gateway plan GARY PARK For Petroleum News
The fate of the most contentious regulatory process in the history of Canadian energy pipelines is now in the hands of three judges on the Federal Court of Appeal who have reserved a verdict on whether to uphold or scuttle Enbridge’s C$7 billion Northern Gateway plan.
Despite federal government approval in June 2014 of the plan to export 525,000 barrels per day of oil sands bitumen and import 193,000 bpd of condensate, the 710-mile twin pipeline system connecting the Alberta oil sands and a tanker terminal at Kitimat on the northern British Columbia coast continues to be bogged down before regulators and courts.
Challenges filed But that has failed to sway First Nations, environmentalists and labor unions, who filed 18 challenges before the six-day federal court hearing, which ended with a sharp rebuke to the opponents from the Canadian Association of Petroleum Producers.
Lewis Manning, an attorney for CAPP, said those groups that didn’t participate in a federal environmental review process passed up the chance to put their opinions on the record.
He insisted the review panel made “every conceivable effort” to accommodate interveners.
“Detailed information was provided to the First Nations about the impacts the project would have. They had an opportunity to be heard,” argued federal government lawyer Jan Brongers.
The government approval last year of Northern Gateway included 209 conditions, mostly involving ways to mitigate ecological threats to marine mammals, wildlife and waterways, along with the First Nations’ traditional lifestyle.
First Nations cite duty to consult But eight First Nations are among those who want the court to overturn the government’s decision, arguing that the Canadian government failed to observe its constitutional duty to consult with them.
Brongers said the environmental review was extensive and set a high bar for the court to overturn a democratically elected cabinet’s decision.
It is the government’s “firm position” that Northern Gateway was exposed to a “lengthy, thorough and fair environmental assessment process, which included honourable consultation with the impacted First Nations,” he said.
However, four environmental groups reject that claim, arguing the government failed to take into account Canada’s official recovery strategy for humpback whales, especially ignoring the threat posed by increased tanker traffic in critical feeding grounds for the whales.
They said a federal review panel had also failed to provide detailed models showing how a tanker spill might affect First Nations’ waterways on British Columbia’s central coast and had not observed the terms of agreements to establish collaborative management of the land and marine environment.
Brongers urged the judges to consider previous rulings that have set a high standard for a court to override a government decision on a resource project.
Robert Janes, a First Nations lawyer, dismissed the suggestion that aboriginal concerns could be addressed further along in the regulatory process.
“The submissions made by Canada and Northern Gateway that, like Orphan Annie looking forward to tomorrow, the real consultation is yet to come simply cannot be sustained,” he said.
Northern Gateway — more work In a statement released Oct. 8, Northern Gateway President John Carruthers said the company still has more work to do to secure aboriginal support.
“Northern Gateway is open to change,” he said. “We will continue to adapt and address First Nation and Métis concerns as they arise and seek opportunities for meaningful, respectful dialogue with all groups.”
The company estimates the project would boost Canada’s gross domestic product by $300 billion over 30 years, as well as provide employment opportunities and sizable tax and royalty revenue.
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