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)
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.
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 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.