Harper’s decision to defund coast management group may blow back on Enbridge, lawyer says

Energy Environment Link

The West Coast Environmental Law blog says the decision by Prime Minister Stephen Harper to take funding away from the Pacific North Coast Integrated Management Area plan may actually blow back on Enbridge, delaying the Northern Gateway pipeline project for years.

 The cancellation of the funding is  perceived as part of the Conservative government’s aim of pushing the
Northern Gateway pipeline through no matter what the cost.   (Two cabinet ministers, Joe Oliver and James Moore are publicly endorsing the Northern Gateway, despite the fact the Joint Review Hearings don’t even begin until January 2012. It is unlikely either minister would make an endorsement like that without Harper’s approval.)

In the blog post, Why Harper’s shot at PNCIMA also hit Enbridge in the foot, lawyer Andrew Gage argues that Harper’s move,  apparently motivated by fears that the PNCIMA process could block the pipeline, fears created by Vancouver blogger Vivian Crause and her allies among PostMedia’s right wing columnists, will actually delay the pipeline for years because it negates the legal obligation to consult First Nations and thus will likely throw the entire process into the courts for years.

Litigation by any of the Coastal First Nation against the Enbridge Pipeline could pose a serious problem for Enbridge and its Northern Gateway Project.  Because of First Nations title and rights that are protected by Canada’s constitution, the federal government has a duty to “act honourably” and to consult and accommodate First Nations who have a “credible but unproven claim” of rights that may be adversely affected by a government decision (such as approving the Enbridge Northern Gateway Pipeline project and related tanker traffic.)

As a result,  anything that the federal government does in relation to consultations with the Coastal First Nations about tanker traffic and the Enbridge Pipeline that might be considered “dishonourable” creates legal uncertainty and problems for Enbridge.  So was the decision to withdraw from the current PNCIMA funding arrangement “dishonourable?”

Gage notes that the federal government is required by the Oceans Act, passed under the Liberals in 1997, to set up integrated management plans for all coastal areas of Canada, not just the northwest, a process that began in 2005.

Gage also points out that Enbrige has, in the past, participated in the process:

A wide range of stakeholders, including one seat for the conservation sector, provide input and consensus based advice on an Integrated Oceans Advisory Committee, but do not determine the outcomes of the PNCIMA process. Enbridge has itself participated on the Integrated Oceans Advisory Committee, along with representatives of the fish farming, commercial fishing, renewable energy, recreational fishing and tourism industries, and even sponsored an early workshop in the PNCIMA process.

In short, PNCIMA is created by the federal government, managed jointly by the federal and provincial governments and First Nations, but with efforts being made to involve a wide range of stakeholders. Because the PNCIMA is co-chaired by a federal government staff-member, and requires sign-off from the government, it was unlikely to have resulted in a complete ban on oil tanker traffic, although it might have placed restrictions on marine travel, or otherwise provided protection for the coast from shipping impacts.

However, progress was slow, in part due to the limits of federal funding available for the process.

He goes onto to say that the Harper government itself agreed to the now controversial foundation funding in 2010. That was before the attacks from Crause and the PostMedia’s business columnists reached a crescendo in recent weeks. But now there is no longer any mechanism that can be perceived as neutral that consult with First Nations and other northwest coast stake holders.

To flip-flop now, slightly more than a year before the process was supposed to wrap up, leaves the PNCIMA process without the funding that the government has acknowledged is required for a thorough planning process. It is also a slap in the face for the Coastal First Nations, the BC government, environmental organizations and industry stakeholders who have worked on this process for years.

Prime Minister Harper’s government may have believed that it was helping Enbridge and its Northern Gateway Pipelines by withdrawing from this funding agreement. But the resulting uncertainty, and the appearance that the federal government has acted less than honourably towards the Coastal First Nations, may well cause Enbridge huge legal head-aches in the future.

Editor’s note: As I said in this post, there appears to be a double standard, since what the Harper government, PostMedia’s columnists and Krause apparently are saying that it is only acceptable if billionaire capitalists spend their money on a conservative or pro-energy industry agenda, but it is not acceptable if a billionaire capitalist decides to spend his money to protect the environment.

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