Dayna Nadine Scott is an Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University.
Back in the summer of 2012, Premier Christy Clark boldly laid down five conditions that would need to be met for British Columbia to give its support to an oil sands pipeline. The first condition is the successful completion of the formal environmental review process. The second and third conditions relate to practices for spills in water and on land. The fourth involves respecting the rights of First Nations, and the fifth requires that British Columbians receive economic benefits commensurate with the risks involved.
A Joint Review Panel established by the National Energy Board and the federal Minister of the Environment recommended approval of the contested Northern Gateway pipeline late last year and a final decision is expected from the federal government any day now. But despite what some within the B.C. government are saying, the Northern Gateway hasn’t even met Ms. Clark’s first condition. There are no less than five applications for judicial review of the environmental assessment pending before the Federal Court, brought by various First Nations and conservation groups. The applications point to serious flaws in the process, any one of which could cause the court to, at the very least, send the matter back to the Joint Review Panel for re-consideration.
Because of the nature of the process, the public has very little recourse to challenge the Joint Review Panel’s decision. Judicial review is one of the few tools available, allowing an affected individual or community to ask a judge to review the process undertaken and the evidence considered, and to determine whether the Panel acted reasonably.
The applications – by Ecojustice (on behalf of ForestEthics Advocacy, the Living Oceans Society, and the Raincoast Conservation Foundation), the University of Victoria Environmental Law Centre (on behalf of BC Nature), and the Haisla, Gitxaala, and Gitaa’ag First Nations – point to errors made by the Panel that should trouble us all.
They allege that the panel failed to properly assess the evidence before it according to established legal standards. The panel selectively ignored upstream environmental impacts, though it appears to have relied heavily on upstream economic benefits. The panel also accepted data relied on by the project proponent, despite questions about its scientific integrity raised by the applicants in the hearings. According to the applicants, these failures led the panel to underestimate the significance of potential environmental effects associated with the proposed pipeline – the very point of the environmental review process.
Perhaps even more fundamentally, the applicants point to the inadequacy of the consultation process. An important purpose of the environmental assessment was to allow members of affected communities and First Nations to convey their views, and these groups say they were not heard. With respect to First Nations, the government has a constitutionally-mandated duty to meaningfully consult with affected communities, and to accommodate their concerns. While all three First Nations groups allege that their views were not taken into consideration, one group was also prevented from participating fully in the hearing due to financial constraints. As a result, the panel appears to have ignored the possible effects on constitutionally guaranteed aboriginal rights, traditional activities, and culture.
The panel’s most serious failure, however, was to make its conclusions without providing reasons. An environmental review, like any government decision-making process, needs to be transparent and accountable. Here, the panel has not explained why it found there would be “no adverse effects” on aboriginal culture or the environment. It did not explain why warnings about the dangers to woodland caribou and marine bird populations were ignored, and it did not demonstrate the basis on which it determined that a large spill from the pipeline is “unlikely.”
In other words, the panel did not explain which evidence it relied on and which it rejected. For all we know, its report could have been written before the hearings even opened. This is hardly the transparent and accountable process Canadians expect, and are legally entitled to.
These communities will need to live with this pipeline for generations to come. They deserve answers to the questions they have raised.
The applicants are simply asking for a judge to review the process undertaken and the evidence that the Joint Review Panel considered, to ensure that the right decision was made. In the meantime, they expect for the final decision on Northern Gateway to be put on hold.
Christy Clark made a promise to the people of British Columbia: that no pipeline project would move forward until all five conditions were met. Given the serious legal issues still pending, it would be disingenuous to say that the environmental review process is “completed.” In other words, even the first condition has not been fulfilled.
It has become a matter of principle. The premier should stand by her promise.