VANCOUVER – A pipeline proposal more than a decade in the making has suffered a major setback after a court revoked the federal government’s approval for the project to link Alberta’s oilsands to British Columbia’s north coast, saying Ottawa failed in its duty to consult with aboriginal people.
In a split decision released Thursday, the Federal Court of Appeal quashed approval for Enbridge’s $7.9-billion Northern Gateway project.
The judgment says the government neglected to discuss subjects of critical importance to First Nations by ignoring many of the project’s impacts and offering only a “brief, hurried and inadequate” opportunity for consultation.
“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. Many impacts of the project … were left undisclosed, undiscussed and unconsidered,” the decision reads.
“It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal Peoples. But this did not happen.”
Northern Gateway would involve the construction of more than a thousand kilometres of pipeline from northeast of Edmonton to Kitimat, B.C., for shipping to international markets. A parallel line would send 193,000 barrels a day of bitumen-thinning diluent in the opposite direction.
The proposal first got the green light from the Canadian government in 2014, but it’s been mired in legal uncertainty ever since.
Eight First Nations, four environmental groups and a labour union launched legal challenges against the approval, which were consolidated and heard by the appeal court in October.
The office of federal Natural Resources Minister Jim Carr said it will review the decision before determining its next steps, if any.
“The government of Canada is committed to a renewed, nation-to-nation relationship with indigenous peoples, based on recognition of rights, respect, co-operation and partnership, including our duty to consult,” the statement says.
The three-judge panel that heard the appeal was split 2-1.
In the dissenting opinion, Justice Michael Ryer says the Crown’s reasons for concluding it had met its duty to consult were based on a number of factors including that First Nations were encouraged to participate in the process and were entitled to funding to do so.
Many of the First Nations’ concerns were accommodated as well in the 209 conditions attached to the project by a joint review panel that found it was in the public interest in December 2013, he wrote.
“It also has the support of a majority of the affected First Nations, 26 of which accepted the project proponent’s offer to acquire an equity interest in the project.”
Northern Gateway president John Carruthers said in a statement the company remains committed to building “this critical Canadian infrastructure project,” while protecting the environment and traditional way of life of aboriginal groups along the proposed route. The company will consult with its First Nations partners and commercial proponents before deciding its next steps, he wrote.
The Northern Gateway Pipeline first submitted a preliminary information package on the project to the National Energy Board and the Canadian Environmental Assessment Agency in late 2005.
The Calgary-based energy company and its 31 aboriginal equity partners asked the energy board for a three-year extension to the 2016 construction deadline to allow for more consultation. But the aboriginal groups who oppose the project, many of them located on B.C.’s north coast, say extra time won’t sway their position.
Reaction from First Nations was mostly positive, but Spencer Green of the Gitga’at Nation described the victory as “bittersweet.”
“There’s relief, but at the same time you can’t let your guard down,” said Green, a councillor.
“You can’t accept it as a complete win because time and time again we have been shown that when it comes to our relationship with industry and the government, we have been left to stand alone.”
Peter Lantin of the Haida Nation said he’s thrilled by the decision, adding it validates the concerns his people raised over shortcomings in the consultation process.
“It always felt like they were trying to get to a yes somehow, some way,” Lantin said.
“In our mind (Northern Gateway) is dead. We believe this is the final nail in the coffin and that the project should be rejected.”
Kitasoo Chief Doug Neasloss called on Prime Minister Justin Trudeau to scrap the project as a way to make good on his election commitment to renew relations between the federal government and Canada’s aboriginal people.
Neasloss also said he wanted to see the federal leader follow through on his campaign pledge to formalize a ban on tanker traffic along the north coast, which critics say would kill the project.
Environmental organizations celebrated the ruling, even though the court disagreed with their arguments, along with those made by the labour union Unifor.
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