Earlier this month, a large number of First Nations and organizations celebrated an important step forward when all of their cases challenging the federal approval of the Enbridge Northern Gateway pipelines and tankers proposal were given the green light to proceed by the Federal Court of Appeal.
Earlier this summer, we summarized the wave of legal proceedings that were commenced against the federal approval of the Enbridge project:
Eight First Nations (two of which, Nadleh Whut’en and Nak’azdli, have West Coast Environmental Law lawyers on their legal team), four environmental organizations and one union are currently in the Federal Court of Appeal... The parties seeking to legally challenge the federal approval of Enbridge’s project are:
1. Gitga’at First Nation
2. Gitxaala Nation
3. Haida Nation
4. Haisla Nation
5. Heiltsuk Nation
6. Kitasoo Xai’Xais Nation
7. Nadleh Whut’en
8. Nak’azdli
9. Federation of British Columbia Naturalists
10. ForestEthics Advocacy Association
11. Living Oceans Society
12. Raincoast Conservation Foundation
13. Unifor
As we explained at the time, all of the cases started by going through the preliminary stage of seeking leave:
When the federal government significantly weakened Canada’s environmental laws through omnibus bills in 2012, one of the changes it made was to amend the National Energy Board Act so that parties must now seek “leave” to judicially review federal cabinet approvals of projects like Enbridge’s. What this basically means is that parties must first ask for the Court’s approval to commence a full legal challenge of the decision through judicial review, effectively adding an additional legal hurdle.
As it turns out, it was a legal hurdle that everyone cleared. Despite the arguments of Northern Gateway that the cases should not be heard, on September 26 the Federal Court of Appeal granted leave to all of the First Nations and organizations to go ahead, and by October 3 they had all filed notices with the Court commencing their proceedings. In other words, there are now 13 First Nations and organizations pursuing full legal challenges against the federal approval of the Enbridge Northern Gateway proposal.
Because some parties cooperated in jointly bringing cases, and some parties commenced multiple cases for procedural and other reasons, there is currently a total of 18 court cases proceeding against the Enbridge Northern Gateway project, consisting of:
- 5 judicial reviews regarding the report of the Northern Gateway Joint Review Panel;
- 9 judicial reviews of the federal cabinet approval of the Enbridge Northern Gateway project; and
- 4 appeals of the National Energy Board certificates approving the Enbridge Northern Gateway project.
While some of these cases may later be combined for reasons of efficiency, the staggering number of legal proceedings that Enbridge and the federal government must now contend with is proof positive that widespread opposition among First Nations and the general public has translated into a formidable legal offensive against Enbridge’s Northern Gateway proposal, further reducing the chances that the project will ever see the light of day.
Gavin Smith, Staff Counsel