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Day 5: Northern Gateway seeks to defend the "gold standard" review process

October 6, 2015

Day 5 of 6. A core group of concerned community members persisted in the courtroom and listened intently to the dynamic exchanges between the judges and counsel for the Respondents. The judges started the day by addressing Northern Gateway’s last minute attempt to introduce fresh evidence. The judges unanimously rejected the admission of Northern Gateway’s fresh evidence and questioned the relevance of this evidence this late in the Court proceedings.  

Next up, Angela Cousins, counsel for the Attorney General of British Columbia, made brief submissions arguing that the proper forum for Aboriginal title claims is the BC Supreme Court (not the Federal Courts).

Bernard Roth, counsel for Northern Gateway, presented arguments for the remainder of the day as he attempted to deal with a ‘mountain’ of evidence from the JRP process. He began by arguing that the Northern Gateway pipelines do not simply represent a natural resource project but rather painted them as a “national transportation infrastructure project” similar to the construction of the Canadian Pacific Railway. Roth suggested that  the Crown did not have to assess the rights of each of  the individual Aboriginal groups affected by the project to discharge its duty to consult, rather he said the Crown should be entitled to have a single consultation process that constitutes deep consultation with all First Nations.. He stressed the importance of developing an efficient, consistent, and fair process. Northern Gateway further argued that proposals put forward early on by First Nations such as Nak’azdli and Nadleh Whut’en, which would have given First Nations a role as formal participants in the assessment of the project, were not viable because of concerns that those First Nations were biased against the project.

Going back to the issue of deference discussed yesterday, Roth argued that the Court should be extremely deferential to the Cabinet’s decision to approve the project. In essence, Roth argued that the Cabinet had the final say on assessing the JRP report and deciding to approve the project, and (aside from Aboriginal consultation issues) the Court is not entitled to disturb that decision unless it finds a truly egregious error.

Roth then went on to outline in great detail what he continuously referred to as the ‘gold standard’ assessment of Northern Gateway. He emphasized that Northern Gateway provided massive amounts of information to the JRP, and took on a large number of commitments, all of which came at a great cost to his clients.

In response to the Coalition’s argument that the JRP failed to comply with the requirement to consider the humpback whale recovery strategy under the Species at Risk Act, Roth conceded that the JRP never had the actual recovery strategy in front of it. However, he argued that the JRP indirectly considered the recovery strategy through evidence put forward by Northern Gateway’s consultants (who had seen the draft strategy) and that the concerns were addressed by requiring a marine mammal protection plan as a post-approval condition. Roth assured the judges that “humpback whales are taken care of as far as Northern Gateway is concerned.”

In response to the Coalition’s argument that the JRP erred by including upstream economic benefits in its public interest assessment while excluding upstream environmental impacts, Roth argued the JRP explicitly observed that the evidence submitted on upstream economic benefits simply consisted of economic estimates and the JRP did not give those estimates weight in reaching its decision.

With regard to impacts of potential spills on Heiltsuk’s court-proven right to herring roe fisheries, Northern Gateway said the chance of such a spill occurring and impacting herring was so minute that it could not constitute an infringement of the Heiltsuk’s right.

In response to the argument of Heiltsuk and Kitasoo Xai’xais that information was missing on the impact of marine spills in their territories, and that Northern Gateway or the Crown were obliged to do such studies because Heiltsuk and Kitasoo did not have the money to carry them out, Northern Gateway suggested that other “smaller” First Nations (in Northern Gateway’s words) such as Gitga’at had been able to afford such studies (presumably implying that Heiltsuk and Kitasoo ought to have been able to afford them as well).

Chiefs from some of the nations in court along with friends. (Photo by Eugene Kung)

On the topic of oil spills, Roth pointed to a long list of potential mitigation measures that Northern Gateway committed to undertake. In response to BC Nature’s argument that the JRP failed to properly assess ‘malfunctions or accidents’ under the Canadian Environmental Assessment Act, he assured the judges that the risk of a large oil spill occurring is infinitesimal. Roth said Northern Gateway acknowledged that a large spill could have significant adverse impacts, such as oiling 240 km of coastline, but that this would not constitute “widespread” impacts. In any event, Mr. Roth submitted that the proper approach was to take measures to prevent such a spill from occurring, which he said the JRP’s conditions accomplished. Roth further suggested that concerns about whether diluted bitumen sinks or floats were not well founded.

Roth went on to submit that First Nations’ concerns were accommodated by the conditions for approval of the project. Roth also argued that consultation and accommodation could occur after the approval of the project. For example, Roth suggested that this could occur through the ‘detailed routing process’ for the pipelines. To address the concerns of First Nations applicants on the water, Roth suggested that a Fisheries Liaison Committee, which would be created in future as a result of the conditions, could include First Nations and might play a role in modifying future tanker traffic routes or considering other marine issues. Roth suggested that if First Nations still have concerns with the project, they could write a letter to the NEB or file a review application, and that decisions of the NEB on those matters could be brought back to the Federal Court of Appeal for review if necessary.

Finally, on the issue of remedy, Roth said Northern Gateway disagreed with the position of Canada and the Applicants that the only appropriate remedy would be to quash (i.e. cancel) the approval and send it back for reconsideration. Roth argued that no matter what defects the Court might find in the approval decision, the Court should not in any circumstances quash the Cabinet’s approval. He pointed to the significant amount of money and time that Northern Gateway has already invested in the project as a reason to keep the process moving. In fact, Roth stated that quashing the decision and sending it back for reconsideration would come “dangerously close” to “imperiling” the project. He argued that there is still ample time to maintain the approval and fix any defects before construction of the project is slated to begin.

Another long and jam-packed day! Join us tomorrow for the final day of the hearing. We will begin at 9:30am with Canadian Association of Petroleum Producers (CAPP) arguing what defines the ‘public interest’ of Canadians (Canada and Northern Gateway will be relying on CAPP’s submissions on that issue). Finally, the applicants will have a chance to reply to the arguments we have heard thus far. Looking forward to it!