NEB indefinitely suspends any consideration of Northern Gateway

The National Energy Board has indefinitely suspended its consideration of the $7.9 billion Northern Gateway pipeline project, including the request by Enbridge to extend the deadline for starting the controversial project. The Joint Review Panel conditions had set December 31, 2016 as the time that Enbridge had to start the project.

In a letter to John Carruthers, president of Northern Gateway Pipelines, Sheri Young, secretary to the Board said that suspension came after the Federal Court of Appeal quashed the permission certificates for the project.

As a result of the decisions quashing the Certificates, the Board is suspending indefinitely its consideration of the application to extend the sunset clauses of the Certificates and is not accepting any further comments on it, including comments from Northern Gateway and AEP. The Board is also suspending indefinitely its consideration of all filings related to the conditions attached to the Certificates.

In May the NEB had told Enbridge that is would consider a request by Enbridge to extend the deadline and accept comments from the public until June 27, 2016 and reply comments from the applicants by July 18, 2016.

Cover of JRP ruling
Cover of Volume 2 of the Joint Review ruling on Northern Gateway

In a decision released on 30 June 2016, the Federal Court of Appeal quashed Order in Council P.C. 2014-809 which is the order directing the Board to issue the Certificates for the Project. The Court also quashed the Certificates.

 

The original Joint Review Panel report in December 2013 had set 209 conditions for the construction and operation of the pipeline, which would have carried oil sands bitumen from Bruderheim, Alberta, to Kitimat, for shipment to Asian customers.


Letter to Northern Gateway-Suspension of the sunset clauses-A5D7Z9
(PDF)

Federal Court of Appeal overturns approval of Northern Gateway

In a two to one decision, the Federal Court of Appeal has overturned the Harper government’s approval of the Enbridge Northern Gateway Pipeline, finding that the federal government’s consultation process  with First Nations on the BC coast that occurred after the NEB decision and the Joint Review Panel Report was inadequate, saying:
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We conclude that Canada offered only a brief, hurried and inadequate opportunity in Phase IV—a critical part of Canada’s consultation framework—to exchange and discuss information and to dialogue. 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.

The dissenting judge found that the federal government under Stephen Harper had adequately consulted the First Nations. The split decision means that one of the parties, either the federal government, Enbridge Northern Gateway or the Canadian Association of Petroleum Producers may seek leave to appeal to the Supreme Court of Canada.

Read the decision
Northern Gateway decision  (PDF)

Other Media
Globe and Mail
Appeal court overturns Ottawa’s approval of Northern Gateway pipeline

CBC
Northern Gateway pipeline approval overturned

BC Supreme Court rules province failed to consult First Nations on Northern Gateway

The B.C. government acted improperly and “breached the honour of the crown” when it signed away a provincial review and gave the federal Joint Review Panel for responsibility for assessing the environmental impact of the proposed Northern Gateway pipeline, Madam Justice Marvyn Koenigsberg of the Supreme Court of B.C. ruled Wednesday.

In a largely technical decision,  Justice Koenigsberg ruled that British Columbia must come to its own decision on Northern Gateway. That’s because what is called the “equivalency agreement” that handed the decision over to the federal agency was not “was reasonable or correct for the Province to exercise its discretion.”

She ruled the equivalency agreement “is invalid” and said the project cannot begin until a provincial environmental assessment certificate has been issued.

“The province is required to consult with the Gitga’at about the potential impacts of the project on areas of provincial jurisdiction and about how those impacts may affect the Gitga’at’s aboriginal rights, and how those impacts are to be addressed in a manner consistent with the honour of the Crown and reconciliation,” Koenigsberg ruled.

Read the judgement (pdf)

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That may be the final nail in the Northern Gateway’s coffin. The province opposed the project at the JRP because the Northern Gateway had not met the five conditions for heavy oil transport that was set down by the government.

The court ruling comes shortly after British Columbia told the National Energy Board that it also opposed the $6.8-billion Kinder Morgan TransMountain pipeline because, at this point, that project cannot meet BC’s five conditions.

B.C. Justice Minister Suzanne Anton said the province is reviewing the Supreme Court decision.

There are 19 more court challenges to the Northern Gateway and to the Joint Review process, most  before the Federal Court of Canada.

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The Gitga’at First Nation and Coastal First Nations which brought the suit in January 2015 say that the ruling means Enbridge pipeline must now face provincial environmental assessment decision, which includes consultation with First Nations across the province.

“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 to the CBC.

Northern Gateway says the federal decision stands, and its still working to meet the 209 conditions set out by the NEB, along with the B.C. government’s conditions.

“Northern Gateway and the project proponents, including Aboriginal Equity Partners, remain committed to this essential Canadian infrastructure,” Giesbrecht told the CBC.

But among the 209 conditions attached to the approval by the  Joint Review Panel  Condition 2 said that construction must begin before December 31, 2016.  Under Conditions 20 and 21, Enbridge must have secured commitments for at least 60 per cent of the pipeline’s capacity at least six months before starting construction.

Enbridge still doesn’t have any customers and with the world price of oil below $40 US a barrel, the chances of getting customers are slim.  In its most recent NEB filing on December 21, 2015, Enbridge stated, “Further to its filing of June 29, 2015, Northern Gateway has not executed firm [transportation service agreements] with its prospective shippers.”

Koenigsberg ‘s ruling doesn’t official stop the Northern Gateway as some are celebrating.  Rather the decision means that  British Columbia must  set up its own review process and then come to a decision.  That decision could, in theory, approve Northern Gateway with  conditions just as the Joint Review Panel did.

The news release from the Coastal First Nations goes on to say:

The ruling, which is a major victory for the Gitga’at First Nation, means the equivalency agreement is invalid, that the government must now make its own environmental assessment decision regarding the Enbridge Northern Gateway pipeline, and that it must consult with and accommodate First Nations along the pipeline route about potential impacts to their Aboriginal rights and title.

“This is a huge victory that affirms the provincial government’s duty to consult with and accommodate First Nations and to exercise its decision-making power on major pipeline projects,” said Arnold Clifton, Chief Councillor of the Gitga’at First Nation.

“This ruling is an important victory for our communities and presents another hurdle to the Enbridge Northern Gateway pipeline,” said Chief Marilyn Slett, President of the Coastal First Nations. “It means the province must now sit down with First Nation communities across BC and find ways to address the severe and irreversible impacts of this project.”

The constitutional challenge was brought by the Gitga’at First Nation and the Coastal First Nations, and was argued by Joseph Arvay, Q.C., (and his colleagues Catherine Boies Parker and Tim Dickson at Farris LLP ) one of Canada’s pre-eminent constitutional lawyers and an expert in Aboriginal and administrative law.

“The province has been talking a lot about its opposition to oil pipelines in recent days,” said Art Sterritt, a member of the Gitga’at First Nation. “Now it must put its money where its mouth is and apply the same rigorous standards it advocated for during the Joint Review Panel process, while consulting with every single First Nation who would be affected by this project. We’ve said it before: The Enbridge Northern Gateway pipeline is dead.”

The ruling means that, until the province makes a decision on the Enbridge Northern Gateway pipeline and issues an Environmental Assessment Certificate, none of the approximately 60 permits, licenses and authorizations necessary for the project to proceed can be issued.

Court orders Environmental Assessment Board to investigate impact of Rio Tinto sulphur dioxide

UNIFOR-theunion-Canada-wKitimat Unifor local 2301 has succeeded in forcing the Environmental Assessment Board (EAB) to take responsibility for investigating the impact of plans for a dramatic increase of sulphur dioxide (SO2) at the Rio Tinto smelter in Kitimat. The BC Supreme Court has sided with Unifor in a judicial review involving the Ministry of Environment’s approval of the smelter’s expansion without a SO2 “scrubber”.

A news release from Unifor 2301 goes on to say:

The project will increase SO2 emissions from 27 tonnes per day to 42 tonnes per day.

“Expanding the smelter without a scrubber is a terrible health risk to my community,” said Sean O’Driscoll, Unifor Local 2301 President. “We’re very pleased that Rio Tinto’s proposal will have to go through an environmental assessment. It’s a shame that it takes a Supreme Court Judge to force the BC Liberal government to do the right thing.”

The decision to approve the smelter expansion without scrubbers will now be sent back to the EAB.

Airborne sulphur dioxide is a well-known cause of respiratory ailments. Excessive SO2 levels in Kitimat are likely already impacting human health. In July 2012 a Community Health Synopsis study published by Northern Health concluded that the incidence of death from bronchitis, emphysema, and asthma is 60 per cent higher in Kitimat than the British Columbian average. Expert evidence known to the Minister of the Environment reveals that increased SO2 can cause serious health problems, including fatal respiratory failure.

In the decision, BC Supreme Court Justice W.F. Ehrcke wrote that it was unreasonable for the EAB to conclude that Unifor’s appeal must be rejected on the ground that the 2014 Letter of Approval to Rio Tinto was not an appealable decision within the meaning of the Act.

Other challenges to the emissions of sulphur dioxide from the Rio Tinto smelter are continuing.

Court orders man to donate $5,000 to wildlife trust in deer harassment case

A Portuguese man was fined $1 in Terrace Provincial Court Wednesday Sept. 2 and ordered to donate $5,000 to the Heritage Conservation Trust Fund for hitting a swimming deer on the head off Bish Cove in Douglas Channel on May 14.

Rodolfo Lopes, previously misidentified in court documents as Martins-Lopes, pleaded guilty in to one count under the BC Wildlife Act of harassing wildlife with a motor vehicle.

Evidence in the case showed that Lopes hit the deer on the head with a jig or gaff in an attempt to bring it on board. The deer managed to escape and make it to shore.

Such donations are permitted under the BC Wildlife Act. The money, which Lopes originally paid in bail, will be allocated to conservation efforts in the Kitimat region.

Other charges against Lopes, a former supervisor at the Rio Tinto Alcan Kitimat Modernization Project, including one count of causing unnecessary pain and suffering to an animal under the Criminal Code were stayed by the Crown.

Provincial Court Judge Terence Wright also prohibited Lopes from approaching wildlife for the next two years unless required by his employment.

Lopes did not return from Portugal for the hearing. Vancouver lawyer Don Sorochan, QC, appeared on his behalf.

Crown counsel Corinne Baerg said Lopes was a supervisor at Brasco, one of the subcontractors at KMP, and had hired a fishing guide to help celebrate both the end of their work at the aluminum smelter modernization project and Lopes’ planned wedding in August.

After a day of what was apparently unsuccessful fishing, Lopes and five others were on board the boat, returning to Kitimat, when a deer was spotted swimming in Douglas Channel.

According to the submission, the guide then took the boat “ running up alongside” the deer. At that point Lopes hit the deer on the head with what some witnesses said was a jig and others said was a gaff in attempt to haul it on board. The deer was able to free itself, swam to shore and disappeared into the bush.

After Conservation Officers were told  about the incident by residents in Kitimat who saw a video of the fishing trip on Facebook, one of the men on the boat voluntarily surrendered cell phone video and other evidence was seized under a search warrant. The video was not shown in court.

Because Lopes was not a Canadian resident he was arrested and spent time in custody before being granted bail and was permitted to return to Portugal.

In his defence submission, Sorochan said Lopes was not familiar with Canadian hunting and wildlife laws and was totally dependent on the “advice of his professional guide.” Sorochon told the court that the incident had become exaggerated by people gossiping on social media.

Sorochan told the court that Lopes began with Brasco as a bricklayer in 1996 and had quickly risen to supervise construction projects all over the world. The lawyer called the attempt to get the deer “a naive impulse” by a man who was trying to be macho in an unfamiliar setting.

He submitted letters of reference for Lopes from Brasco, another company and a Kitimat union.

Wright, in confirming the proposed sentence, said that given the circumstances, the fine and donation was the “appropriate penalty.”

Wright noted that it was not possible to ascertain how badly injured the deer was. He also noted that Lopes did not have a criminal record and his employer had praised his work in many parts of the world.

Andreas Handl, who runs Kitimat’s Kingfish Westcoast Adventures, was scheduled to appear in a Kitimat court Thursday, Sept 3, but the appearance was adjourned until October.

He is charged under the B.C. Wildlife Act with harassing wildlife with a motor vehicle and hunting wildlife while swimming, as well as causing unnecessary pain and suffering under the Criminal Code.