The pile of lawsuits sitting on top of the proposed Enbridge Northern Gateway Pipelines and Tankers Project keeps getting bigger, and this time the Province of British Columbia has been dragged into the mix.
We’ve previously talked about the 18 legal proceedings that have been launched in the Federal Court of Appeal in relation to the federal approval of the Enbridge Northern Gateway proposal. Those cases are continuing on a consolidated basis (meaning the parties will maintain their individual arguments, while the cases will be heard by the same judges and documents will be shared to the extent possible), proceeding to a hearing likely before the end of 2015.
To add to the mix, in January 2015 a new legal challenge was launched by First Nations in relation to the Enbridge Northern Gateway proposal, this time in the British Columbia Supreme Court against the Province of BC. The parties commencing the legal challenge, Gitga’at First Nation and Coastal First Nations, argue in the case that the Province of BC has a legal duty to make its own decision about the Enbridge project, and to consult impacted First Nations before doing so. The legal challenge adds to the ever-growing array of obstacles that have stopped Enbridge’s Northern Gateway from making any significant progress despite obtaining conditional federal approval last summer.
The basic facts of the new legal proceeding against the Province of BC are as follows:
- The Province was required by BC’s Environmental Assessment Act (the “EAA”) to: (a) conduct an environmental assessment of the Enbridge Northern Gateway proposal; and (b) make a decision about whether or not to grant an environmental assessment certificate to Northern Gateway. Such an environmental assessment certificate is the overarching provincial approval required for Northern Gateway to obtain any subsequent provincial permits necessary for work on the project to proceed.
- Section 27 of the EAA allows BC to enter into an agreement with the federal government (as well as other jurisdictions), to allow a federal environmental assessment process to act as a substitute for a provincial environmental assessment.
- In 2008 and again in 2010, BC entered into an agreement with the federal National Energy Board (the “NEB”) which provides that: (a) NEB regulatory reviews of proposals such as the Enbridge Northern Gateway project act as a substitute for BC’s provincial environmental assessment process; and (b) in such circumstances, BC is not required to make its own decision on whether or not to issue a provincial environmental assessment certificate, rather the federal decision also counts as BC’s decision.
- Relying on the agreement with the NEB, BC never made its own decision about whether or not to issue an environmental assessment certificate to Enbridge Northern Gateway.
So what’s the problem? According to Giga’at First Nation and Coastal First Nations, section 27 of the EAA allows BC to substitute a federal review process for a provincial environmental assessment, but it does not allow BC to substitute the federal decision for BC’s obligation to decide whether or not to approve a project by issuing a provincial environmental assessment certificate. Put another way, according to the EAA, BC can rely on a federal environmental assessment as the basis for making a decision on whether to approve or reject a proposal such as Enbridge Northern Gateway, but BC still has to make its own decision. According to our interpretation of EAA section 27, there is a good legal basis for this argument.
Gitga’at and Coastal First Nations also point out that the decision to grant or deny an environmental assessment certificate triggers BC’s constitutional duty to consult and accommodate First Nations on the issue. Thus, by abdicating its decision-making power, BC would effectively “give away” its duty to consult and accommodate, which Gitga’at and Coastal First Nations say is inconsistent with BC’s constitutional duties to First Nations. Gitga’at and Coastal First Nations also argue that BC had an obligation to consult First Nations before entering into the agreement which substituted the NEB process for a provincial environmental assessment in the first place, noting that this did not occur.
Based on these arguments, Gitga’at and Coastal First Nations seek a declaration from the Court that BC must make its own decision about whether to grant or refuse an environmental assessment certificate to Enbridge Northern Gateway, and that BC must consult with them before making such a decision. Until this occurs, they argue, the province does not have the legal authority to issue any permits related to the Enbridge Northern Gateway project.
The case puts BC in a somewhat awkward position. BC strongly opposed the approval of the Enbridge Northern Gateway proposal in its arguments during the federal review of the project, on the primary grounds that Enbridge Northern Gateway had not demonstrated that it was adequately prepared to respond to oil spills. BC also continues to emphasize that Enbridge Northern Gateway has not met BC’s five conditions and therefore the Province’s answer to the project is “no.” To defend against the legal challenge filed by Gitga’at and Coastal First Nations, however, BC would likely need to argue that the Province validly gave away its primary decision-making power on the Enbridge project to the federal NEB.
We will be watching with interest to see how the Province of BC addresses this challenge. In the meantime, the case acts as one more legal hurdle in the daunting obstacle course that is preventing Enbridge Northern Gateway from being built.
Gavin Smith, staff counsel