http://rabble.ca/news/2016/01/bc-supreme-court-rules-government-failed-to-consult-first-nations-on-northern-gateway
[links in on-line article]
B.C. Supreme Court rules government failed to consult First Nations on
Northern Gateway
By Alyse Kotyk
January 15, 2016
Enbridge received another blow on Wednesday when B.C.'s Supreme Court
ruled that the province neglected to properly consult with Gitga'at and
Coastal First Nations on the Northern Gateway pipeline.
"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 in a statement.
In June 2010, the B.C. Liberals signed an "equivalency agreement" with
the federal government, giving final say of the project's environmental
assessment to the National Energy Board.
However, this week the Supreme Court determined that the province had
failed to uphold their responsibility of consulting with First Nations
groups that would be affected by the proposal.
The challenge, one of many that were filed against the controversial
pipeline, was brought forward by the Gitga'at First Nation and the
Coastal First Nations.
The court's ruling on this case makes this equivalency agreement invalid
and, while the federal government gave its stamp of approval on the
project in 2014, the provincial government must now make its own
environmental assessment and decision about the proposed pipeline.
They must also ensure that consultations with First Nations groups are
included in this process.
As a result of this ruling, none of the permits, licenses and
authorizations that are necessary for the project to proceed can be issued.
This isn't the first setback this project has experienced under the new
Liberal government. While the pipeline would aim to transport 525,000
barrels of crude oil daily to Kitimat, B.C., Prime Minister Justin
Trudeau stated his desire last fall to ban tanker traffic on B.C.'s
north coast, making international export of this oil all but impossible.
"We've said it before," said Art Sterritt, member of the Gitga'at First
Nation. "The Enbridge Northern Gateway pipeline is dead."
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http://rabble.ca/blogs/bloggers/dogwood-initiative/2016/01/gitgaat-bc-supreme-court-decision-another-legal-earthquake
Gitga'at B.C. Supreme Court decision: Another legal earthquake for oil
pipelines
By Will Horter
January 14, 2016
Another bad day for Big Oil, another really good day for No Tankers
supporters. Enbridge and Kinder Morgan's already torturous path to push
unwanted pipelines through British Columbia was hit with another
existential earthquake yesterday when the B.C. Supreme Court ruled the
"one review / one decision" approval process was invalid and failed to
adequately consult and accommodate affected First Nations.
This is another nail in the coffin for not one, but two West Coast oil
tanker proposals Big Oil has planned for B.C. For Enbridge it means the
Harper government approval (with 209 conditions) does not give them a
green light and their already comatose project will now require a
separate provincial approval. That decision would fall to a government
that has already gone on record saying that the project as proposed was
inadequate to address provincial concerns -- and only after a process to
thoroughly consult and accommodate the affected First Nations, who are
also vociferously opposed.
For Kinder Morgan, it means the already suspect NEB review process is
likely fatally wounded before it's even completed.
Yesterday's Supreme Court ruling results from a challenge by Coastal
First Nations (an alliance of First Nations on British Columbia's north
and central coast and Haida Gwaii), as well as the Gitga'at Nation. The
case dealt with the 2010 Equivalency Agreement, whereby the B.C.
government voluntarily signed away its authority to assess and approve
major projects to the federal government in Ottawa.
After the Harper government approved Enbridge's pipeline and oil tanker
proposal CFN and the Gitga'at sued, arguing that the B.C. government
illegally abdicated its authority to approve these projects, as well the
duty to consult them. The court agreed, rejecting Enbridge's argument
that the matter was entirely under federal jurisdiction and therefore
any flaws in the Equivalency Agreement were irrelevant. The Supreme
Court accepted the provincial government's argument that it had the
authority to delegate the assessment process to the feds, but ruled that
this couldn't be extended to relinquishing the final approval.
The Court's reasoning provides strong vindication for Dogwood
Initiative's "Let B.C. Vote" campaign, acknowledging that "in order for
the Project to proceed, the Province will have to issue approximately 60
permits, licences and authorizations." Later, the Court acknowledges
that B.C. has the authority to attach additional conditions to the
project, giving further ammunition to Dogwood Initiative's plan to
launch a citizens' initiative if our elected officials don't stand up to
defend B.C.
The Judge ruled, "British Columbia, within its own jurisdiction, has
unique objectives, political and social goals, and legal obligations. If
the Province had no discretion with regard to any project that fell
within the scope of the Agreement then it would no longer have any means
by which to obtain its objectives including, as mentioned above
"ensuring that project development is consistent with the demanding
standards this government has set for itself in protecting the
environment… [Therefore] I find the Agreement invalid to the extent it
removes the need for the Ministers to exercise [approval authority]
pursuant to s. 17 of the EAA."
After finding that the Equivalency Agreement was invalid to the extent
it relinquished independent approval authority, the Court turned to
whether the Province acted honourably with the affected First Nations.
After discussing at length the importance of B.C.'s official intervenor
submission (in which the province decided not to support the project
because of unmitigated oil spill risks), the Court determined the
province "breached the honour of the Crown by failing to consult with
the CFN, and the Gitga'at specifically, prior to deciding not to
terminate the Agreement."
Interestingly, the Court determined the Crown had two decision points
where its obligations to First Nation were triggered:
After it was aware that oil spills were a significant risk and
Enbridge's oil spill plans were inadequate, but before it made a
decision not to withdraw from the Equivalency Agreement in June 2014;
When it decided to accept the federal decision -- and not render an
independent approval pursuant to provincial laws.
This first finding is huge, because it directly parallels what has
happened in the last few days with Kinder Morgan.
The relevant facts from Enbridge are eerily similar for Kinder Morgan:
Affected First Nations oppose the project;
B.C. abdicated its approval and assessment responsibilities through
the same Equivalency Agreement;
The Province opposed the project at the National Energy Board,
determining the risk of spills was unmitigated; and
B.C. hasn't yet consulted First Nations about whether to withdraw
from the equivalency agreement or not.
So what does this all mean?
Firstly, we've said it over and over but Enbridge's Northern Gateway
proposal is Even More Dead. With another 18 lawsuits pending, 209
conditions unfulfilled, all four levels of government and a majority of
British Columbians opposed, a legislated tanker ban in the works, no
firm commercial contracts locking in oil to supply the pipeline, and now
the need to reboot a provincial approval process with affected First
Nations in the driver's seat, Enbridge will be unable to keep up its
charade much longer.
The outlook for Kinder Morgan isn't much better. All the relevant
criteria the Court used to invalidate Enbridge's approval also exist for
their controversial project: B.C. chose not to withdraw from the
Equivalency Agreement in December when they had a chance and didn't
consult with affected First Nations before making that decision. Plus
just last Monday the Province made public its official position on
Kinder Morgan, opposing the project because the Texas-based proponent
"failed to provide the NEB with an adequate plan to prevent or respond
to an oil spill."
Dogwood Initiative and others involved in the umbrella group Organizing
for Change presaged this conundrum last fall when we called on the
province to abandon the Equivalency Agreement and launch its own review
of Kinder Morgan, in partnership with First Nations. Today's decision
puts some real power behind that request.
For Dogwood supporters tired of playing whack-a-mole with ill-advised
West Coast oil tanker projects, First Nations litigation and the
citizens' initiative tactic just got a big dose of adrenaline. For Big
Oil proponents, Kinder Morgan is setting itself up for a very similar
court case. To use one of my favourite expressions, it looks like Kinder
Morgan will be déjà vu all over again.
Another bad day for Big Oil, another good day for First Nations and No
Tankers supporters right across the country.
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