Ignoring First Nations concerns costs Enbridge Northern Gateway pipeline

But environmentalists warn the battle is not over – with the B.C. pipeline project all but dead now there will be even more industry pressure to approve the Kinder Morgan and Energy East projects

Two down. Two to go. That’s the new rallying cry of pipeline foes after the Federal Court of Appeal overturned approval last week of Enbridge’s 1,177-kilometre Northern Gateway pipeline project through northern BC. 

Eight First Nations, four environmental groups and the country’s largest private sector union, Unifor, launched a joint case against the controversial pipeline last fall after the project had been given a conditional green light by the Harper government. One of the conditions of that approval was that Enbridge conduct meaningful consultations with affected First Nations.

But in the ruling made public last week, the Federal Court of Appeal concluded that no such consultations had taken place and that the government “offered only a brief, hurried and inadequate opportunity… to exchange and discuss information and to dialogue.

“The inadequacies – more than just a handful and more than mere imperfections – left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored,” reads the judgment. “Many impacts of the project… were left undisclosed, undiscussed and unconsidered.”

The court’s decision said extending those consultations might have shored up the case for Northern Gateway. “But this did not happen.… In the face of the requests of affected First Nations for more time, there was silence.”

The project’s now back in the hands of the federal cabinet. Environmnetal groups are assuming the pipeline will be shelved once and for all, particularly in light of the fact that Prime Minister Justin Trudeau campaigned against it during the election. However, a promised moratorium on tanker traffic off the northern BC coast has yet to materialize. 

The Trudeau government has also promised a full public review of Canada’s environmental assessment laws and of the National Energy Board (NEB), which oversees pipeline approvals.   

Indigenous leaders say the court decision should serve as a strong reminder of the “free, prior and informed consent” of First Nations required by the UN and recently endorsed by the Trudeau government. 

In the wake of the Court of Appeal decision, Assembly of First Nations National Chief Perry Bellegarde said, “The UN Declaration on the Rights of Indigenous Peoples is the path that must guide our way forward. It will ensure our peoples and our rights are respected and upheld…. The government says it is embarking on a new approach, [but] the path forward will only be successful if First Nations are fully involved in an approach that respects our rights.”

In addition to failing to adequately consult with First Nations, Ecojustice lawyer Barry Robinson, who represented several eco groups in the case, says, “The court’s decision confirms that the environmental assessment of major pipeline projects was badly eroded by the previous government’s dismantling of environmental laws.”

He adds that “between on-the-ground opposition and the federal government’s promises to keep BC’s north coast tanker-free and demonstrate climate leadership, this pipeline is never getting built.”

Still, Paul Paquet, a senior scientist with Raincoast Conservation Foundation, one of the groups involved in the Enbridge case, wants to see a tanker ban put in place.

“Now that the courts have also recognized the importance of protecting this fragile ecosystem, we need the government to uphold its commitment. We cannot risk an oil spill in this critical ecosystem.”

The battle ain’t over, says Sven Biggs of enviro group Stand. In an email to members, Biggs warns that with the  legal blow to Northern Gateway and the US government’s rejection of TransCanada’s Keystone XL pipeline last fall, “Now there is even more industry pressure to build Kinder Morgan’s TransMountain pipeline into Vancouver’s Burrard Inlet and Energy East” through Quebec and New Brunswick. The rejection of both Northern Gateway and Keystone XL means two of North America’s four largest pipeline projects have effectively been shelved. A third may be on the way.

The Squamish Nation, along with Living Oceans Society, Raincoast Conservation Foundation and the City of Vancouver, have just launched three separate court challenges over the NEB’s recent approval of TransMountain. They say the NEB failed to properly consult affected communities and address tanker traffic harm to Southern Resident killer whale habitat.

Enbridge, which has 60 days to appeal the Federal Court decision, said in a statement that the company “will consult with the Aboriginal Equity Partners (28 First Nations and Métis communities who support Northern Gateway) and our commercial project proponents to determine our next steps,” adding that it is “fully committed to building this critical Canadian infrastructure project while at the same time protecting the environment and the traditional way of life of First Nations and Métis peoples and communities along the project route.”

Natural Resources Minister Jim Carr’s spokesperson, Alexandre Des-longchamps, said in response to the Northern Gateway decision, “We are working to restore public confidence in the credibility of environmental assessments, ensuring decisions are based on science, facts and evidence, including the traditional knowledge of Indigenous Peoples.”

Grading Northern Gateway

The project Two 1,178-kilometre pipelines – one to transport oil from Bruderheim, Alberta, to Kitimat, BC the other to carry condensate removed from tankers at Kitimat to Bruderheim for distribution to Alberta markets

Associated facilities Marine terminals in Kitimat with a number of oil and condensate storage tanks

525,000 barrels Crude transported per day 193,000 of barrels per day of condensate

$6.5 billion Estimated cost

190-250 Total tanker traffic in coastal waters off BC per year

Up to 320,000 tons Dead weight of tankers 

50 Estimated years of operation

26 First Nations and Métis groups supporting the project, representing 60 per cent of the communities along the pipeline route, according to Enbridge

209 Conditions put on approval of the pipelines by review panel

adriav@nowtoronto.com | @ecoholicnation

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