Updates with Gitga’at court challenge
The Haisla suit comes at a time that a coalition of environmental groups and the Gitxaala Nation are asking for court reviews of the JRP. The court challenge also comes at time when the District of Kitimat Council has maintained its position on an April 12 plebiscite asking the residents of Kitimat if they approve of the Joint Review Panel’s findings on the Northern Gateway project.
Late Wednesday, the Gitga’at Nation at Hartley Bay also announced they are challenging the JRP.
The Haisla argument filed by Jennifer Griffiths of Donovan and Company, representing the Haisla Nation, points to the Scope of Factors governing the JRP saying the proponent (Enbridge Northern Gateway) must “provide a sufficient description of the local setting to allow the Panel, other regulators, the public and others to clearly understand the rationale for environmental assessment decisions.”
The application asks that courts order that:
- the findings be referred back to the JRP for further consideration
- the Panel obtain and consider the necessary information about marine environment and freshwater and marine fish habitat
- the Panel provide its assessment of effects of the project on Haisla Nation cultural heritage
- the court direct the Panel to provide it assessment of the adequacy of Crown consultation to date
- the Panel reconsider its public interest assessment after considering adequacy of consultation, impacts on cultural heritage and impacts on aboriginal rights and interests
- that the JRP report “as issued on December 19, 2013, does not contain the recommendations required” under the Canadian Environmental Assessment Act.
In the Haisla challenge, the Nation argues the Panel erred by:
- making findings about potential impacts to the marine environment and freshwater and marine fish habitat without having before it information it was required to consider under the Scope of Factors
- failing to assess the environmental effects of the project on Haisla Nation cultural heritage
- failing to provide a rationale for its conclusion that there would be no adverse environmental effects on cultural heritage
- failing to provide a rationale for its conclusions regarding significant adverse effects, including but not limited to the conclusion that, after mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions are very low
- failing to provide a summary of comments received from interested parties on potential conditions
- concluding that a large spill from pipeline facilities, terminal or tankers is unlikely
- concluding that, after mitigation, the likelihood of significant adverse environmental effect resulting from the project malfunctions or accidents is low
- fails to justify its conclusion that a large spill from pipeline facilities terminal or tankers is unlikely
- fails to justify its conclusion that, after mitigation, the likelihood of significant adverse effects resulting from the project malfunctions is very low.
- Fails to provide a rationale for the conclusion that there would be no adverse environmental effects on cultural heritage
The Haisla challenge also says the Joint Review Panel failed “to conduct its assessment in a precautionary manner” when it recommended:
- that the project is not likely to result in significant adverse effects with respect to freshwater fish and fish habitat
- that project is not likely to result in significant adverse effects with respect to marine fish and fish habitat
- recommended that the project is not likely to cause significant adverse environmental effects in Canada on cultural heritage
- concluded that a large spill from the pipelines, terminal or tanker is unlikely
- concluded that the project is in the public interest.
The Haisla challenge also argues that the “Panel failed to observe procedural fairness in the hearing and deliberation” by:
- failing to extend timelines a reasonably requested by parties
- failing to consider all the information available to it about the large spill of oil as a result of the rupture of the Enbridge pipeline in Kalamazoo, Michigan
- failing to assess impact on aboriginal rights or interests in its public interest assessment
- failing to fully consider the submission of the Haisla Nation on potential conditions for the project.
The challenge also deals with the issue of cultural modified trees, especially the JRP’s finding that “impacts to Haisla Culturally Modified Trees can be mitigated” and by concluding “that impacts to Haisla Nation Culturally Modified Trees can be mitigated by including a condition that Northern Gateway file a plan to protect and manage post-1846 CMTS.” The part of the challenge dates back to time when Enbridge surveyors entered Haisla traditional territory without permission and as part of the survey cut down or damaged cultural modified trees.
On the afternoon of January 22, the Gitga’at Nation at Hartley Bay also announced they were filing a challenge to the JRP.
A news release from the Gitga’at says “the Joint Review Panel erred in law, including by failing to properly consider all evidence provided by the Gitga’at, whose culture and way of life would be severely threatened by supertanker traffic, shipping bitumen from Alberta and importing condensate from Asia and elsewhere.”
The application states that while the Gitga’at are resilient, they are also highly vulnerable to threats to their local ecosystems and community well being from impacts cause by increased tanker traffic. The negative impacts to Gitga’at society, culture, identity, health, and economy will only increase in the event of an oil spill, with the impacts increasing with the size and consequences of the spill. Traditional foods harvested from the sea comprise the largest portion of the Gitga’at diet.
On January 16, Ecojustice lawyers, representing ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed the lawsuit seeking a court order to prevent Cabinet from relying on the flawed JRP report to approve the proposed pipeline.
“The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment,” said Karen Campbell, Ecojustice staff lawyer. “The panel made its recommendation despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment.”
Ecojustice argued that the JRP panel also failed to meet legal requirements under the Species at Risk Act when it decided to not consider the final recovery strategy for humpback whales, and failed to identify mitigation measures that would reduce the impacts on caribou.
The humpback whale recovery strategy identifies toxic spills and vessel traffic as two threats to the iconic species’ survival and recovery — all relevant information that should have been considered during the review hearings.
Haisla Notice of Appeal (pdf)