First Nations and environmental groups are asking the courts
to quash the report by the Joint Review Panel (Panel) for
Enbridge's Northern Gateway Pipeline project or to order the
reopening of the review and reconsideration of the Panel's
findings. The legal challenges follow the Panel's December 19,
2013 recommendation to the federal Government to approve the
project, subject to 209 conditions. Opponents claim the Panel made
errors in law and ignored key environmental considerations. They
also claim the Crown failed to ensure that Aboriginal communities
were fully consulted. Regardless of the outcome of the appeals, the
challenges underscore the need to clarify Aboriginal consultation
Joint Review Panel Recommendation
After 180 days of public hearings, the Panel found that the
Northern Gateway Project, if built and operated in compliance with
the conditions set out in its report, would be "in the public
interest." Federal Cabinet has 180 days following submission
of the Panel report to make a decision on the project and order the
National Energy Board to issue certificates for the project or to
dismiss the application.
Gitga'at First Nation and Others File Legal Challenges
With 14 reserves located along the proposed shipping route of
the project, the Gitga'at First Nation has become the most
recent group hoping to forestall the Government's expected
approval of the project by filing a legal challenge.
Gitga'at's Notice of Application alleges that the
project's environmental impacts threaten Gitga'at social,
cultural and economic well-being. It also alleges that the Crown
cannot rely on the Panel process to satisfy its duty to consult.
Lawyers for the Gitga'at state that the Gitga'at have not
surrendered their Aboriginal rights and title through treaties. The
lawyers have asked the Federal Court to overturn the Panel's
findings or, failing that, to refer the outstanding issues back to
the Panel for its consideration and resolution.
Some 10 environment groups and First Nations communities have
filed legal challenges with the Federal Court and the Federal Court
of Appeal (it is unclear which court has jurisdiction). Other
applications made include those by the Haisla Nation, Gitxaala
Nation, the Federation of B.C. Naturalists, the Environmental Law
Centre at the University of Victoria on behalf of B.C. Nature, and
Ecojustice on behalf of ForestEthics Advocacy, the Living Oceans
Society and the Raincoast Conservation Foundation.
Impact of Pending Appeals on Cabinet Decision Uncertain
It is uncertain whether the pending appeals will delay a final
Cabinet decision on the Northern Gateway Project. The federal
Government has several options: (i) it could accept the Panel's
recommendation and direct the National Energy Board to issue
certificates of public convenience and public necessity; (ii) it
could direct the National Energy Board to dismiss the Northern
Gateway application; or (iii) it could order the National Energy
Board to reconsider the recommendation or any of the
The federal Government has stated that it intends to continue to
consult with Aboriginal groups after the issuance of the Panel
report. In light of this stated intention to continue Aboriginal
consultation, it will be interesting to see how the courts deal
with the issue of adequacy of consultation.
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