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Legal challenges could be Northern Gateway’s undoing

An anti-tanker sign is seen with an ancient totem pole in the background in Hartley Bay, B.C. Tuesday, Sept, 17, 2013.
An anti-tanker sign is seen with an ancient totem pole in the background in Hartley Bay, B.C. Tuesday, Sept, 17, 2013. THE CANADIAN PRESS/Jonathan Hayward

Some time in the next six months, Ottawa will probably give Northern Gateway the go-ahead.

And that’s where it runs into trouble.

The Joint Review Panel recommends approving the pipeline (with 209 conditions). Natural Resources Minister Joe Oliver, who has been vocal in his support for the project, says he’ll review the report and consult with Aboriginal groups before making a decision.

But many of those groups have already made up their minds.

“It’s inevitable,” says Grand Chief Stewart Philip, President of the Union of B.C. Indian Chiefs. “As we speak, there’s a lot of networking going on between environmental groups and First Nations groups. … The only real winner yesterday was the legal profession.”

The 1,177-kilometre pipeline would pass through multiple First Nations territories on its way from Bruderheim, AB to Kitimat, BC.

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Its environmental impacts and the prospect of pipeline spills and tanker accidents have loomed large for British Columbians: Recent polls have shown more people oppose than support the project; even more so when the question references tanker traffic.

The degree of concerted, vocal opposition to Northern Gateway took its proponents by surprise. It made Enbridge change tack and mount a charm offensive for its Line 9 project in Ontario.

And despite the review panel’s conclusion that the pipeline’s in the public interest, that opposition’s still very much in place.

“We’ll use every means possible,” said Chief Martin Louie of the Nadleh Whut’en First Nation.”I know they’re big and I know they’re powerful, so we’ll get all the support we can.”
Potential legal challenges could begin as soon as a month or so from now, if anyone wanted to take issue with the Joint Review Panel itself, says Jessica Clogg, Executive Director and senior legal counsel at West Coast Environmental Law.
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“Was there critical evidence that wasn’t considered by the panel? Were there bias issues?”

But the most likely challenge for First Nations affected is that the Crown hasn’t fulfilled its duty to consult with them.

“If a decision is made about something like the Enbridge pipeline in a way that doesn’t meet that duty, that decision could be set aside by the courts,” she said.

“There has yet been no consultation in the legal sense with First Nations. In my opinion, the process the Crown is proposing is not sufficient to meet its legal duties. … It is, essentially, too little too late.”

Perhaps just as significant as the arguments in court, the threat of legal backlogs could spook investors and business partners Enbridge will need to make the project a reality.
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“It’s been the legal and thus financial risk created by First Nations opposition, in particular … that have created a context in which this is seen as a risky and uncertain project,” Clogg said.

“That will only be amplified by the inevitable legal challenges.”