B.C. Supreme Court rules province failed to consult with First Nations on Enbridge

It’s being hailed as a major victory for First Nations and those opposed to Enbridge’s Northern Gateway pipeline project.

It’s being hailed as a major victory for First Nations and those opposed to Enbridge’s Northern Gateway pipeline project. Last week the B.C. Supreme Court ruled that the province “has breached the honour of the Crown by failing to consult” with the Gitga’at and other Coastal First Nations on the Enbridge Northern Gateway pipeline.

It was one of many court challenges brought forth agains the controversial pipeline project and it stemmed from the B.C. government’s agreement with Ottawa to hold a single environmental assessment process, under the National Energy Board, rather than both federal and provincial reviews.

“It astounds me that Christy Clark so readily handed over decision-making authority for the largest private sector industrial proposal the Province of BC has ever seen,” said North Coast MLA Jennifer Rice. “At the time, I thought it was reckless and disrespectful not only to BC First Nations but all British Columbians. I am glad that the courts have also agreed.”

After the NEB gave the project gave the green light to the project in 2014 with 209 conditions, the federal government approved it. However, First Nations in opposition to the pipeline argued that the province did not live up to its duty to consult with them, and the court agreed.

“This announcement is a big win for First Nations and communities in the central coast,” said Rice. “The decision reaffirms what courts continue to say and that is that governments have a legal duty to consult and accommodate First Nations whose rights are impacted by resource projects.”

Ironically, the B.C. government had intervenor status in the NEB’s Joint Review process and argued against the project, claiming it didn’t meet the “five conditions” laid out by Christy Clark’s Liberal government and that there wasn’t a “world-class spill response” plan in place despite the company’s claim to the contrary.

Art Sterritt, a Gitga’at member and vocal opponent of the pipeline, said the B.C. government was “playing a bit of politics” by handing over its power at the environmental assessment stage, then opposing the project.

“They were saying [to the federal government] yeah, we’re opposed, but you go ahead and make you’re decision, we’ll live with it,” said Sterritt.

Sterritt said the court ruling means the B.C. government would have to start from scratch on consulting with affected First Nations for its own review. B.C. Attorney General Suzanne Anton disagreed however, saying the judgment won’t require restarting the approval process.

“What the court has said is we can rely on the process that was in front of the National Energy Board, but we do need to make our own independent provincial decision based on our own provincial legislation,” she said.

Anton said the province hasn’t yet decided on whether to appeal, and she is committed to fully consulting with First Nations.

For its part Northern Gateway says the federal decision stands and that the company is still working on meeting the 209 conditions set out by the federal government as well as the five conditions set by the provincial government.

“Approval of the project falls within federal jurisdiction and this decision from the B.C. Supreme Court does not change that approval or the project’s environmental assessment,” said Ivan Giesbrecht, communication manager for Northern Gateway, in a statement. “Northern Gateway and the project proponents, including Aboriginal Equity Partners, remain committed to this essential Canadian infrastructure.”

The future of the project appears further complicated for Enbridge as newly-minted Prime Minister Justin Trudeau has called for a moratorium on crude oil tanker traffic on B.C.’s north coast. This would seriously hamper any efforts to build the pipeline as the port for the crude oil was to be built in Kitimat and shipped via tanker to Asian markets and beyond.

“In the short term, the decision hugely hampers Enbridge’s plans to bring oil supertankers through the waters on the north and central coast,” said Rice. “More broadly speaking it should be a wakeup call for all governments that we are in a new era when it comes to consulting and truly respecting First Nations – and that I think is a good thing.”