A B.C. First Nation will launch a court challenge Friday of the Conservative government’s decision to approve the Northern Gateway pipeline project, the first in what is expected to be a flood of lawsuits ahead of Monday’s deadline.
The Gitxaala Nation, through whose traditional territory oil tankers would pass, will ask the Federal Court to consider how the $7.9-billion project would infringe on its rights, including aboriginal title. The First Nation will also contend there was inadequate consultation before the project was approved, and that the government relied on a review panel report that was unreasonable.
The court challenge comes in the wake of a landmark Supreme Court of Canada ruling that recognized the existence of aboriginal title, and as many First Nations gear up to assert their rights to oppose resource development on their lands without their consent.
“Canada has forced us down this road. It wasn’t by choice. We need to do what we have to do to protect our territory, and our rights and title. Canada had a duty to consult and they didn’t,” acting chief Clarence Innis said in an interview Thursday.
The First Nation is located on B.C.’s northwest coast and Mr. Innis said the Gitxaala have lived in the region for thousands of years. He said 80 per cent of the First Nation’s food comes from the water through which oil tankers would travel.
A spill, he said, would be catastrophic.
“It would have a long-term effect, and negative impact, to our community. It would affect our traditional way of life, our economy and our spiritual connection to these waters,” Mr. Innis said. “That’s of great concern for our hereditary chiefs and our community.”
The federal government conditionally approved the Northern Gateway project last month. Parties have until the end of the business day on Monday to apply to the Federal Court for leave for judicial review. Five applications were filed after the National Energy Board first recommended government approve the project. Rosanne Kyle, the lawyer representing the Gitxaala Nation, said she expects more than five to be filed this time around.
Ms. Kyle said the Gitxaala Nation has not been adequately consulted or accommodated. She said the recent ruling from the Supreme Court, involving the Tsilhqot’in Nation, shows what government must do when it deals with First Nations’ rights. She said the high-court ruling could bode well for her client.
“It has set the threshold for proving aboriginal title at a level that many First Nations in B.C. can meet, and the Gitxaala can meet through the various evidence that it filed [during the review process],” she said.
Mr. Innis said the Tsilhqot’in ruling has given him confidence the Gitxaala Nation’s concerns will be heard.
Ivan Giesbrecht, an Enbridge spokesman, said he could not comment on legal challenges that have not yet been filed.
“What I can say is that we are focused on building further trust and confidence with British Columbians and responding to their concerns,” he wrote in an e-mail.
The Gitxaala Nation was one of three First Nations that launched a legal challenge in Federal Court in January, after the joint review panel first issued its recommendation. The two other applications were filed by environmental groups, including BC Nature.
Chris Tollefson, the lawyer representing BC Nature, said in an interview that he plans to file his application in response to the government’s decision on Monday.
Mr. Tollefson said one of his arguments will be that the joint review panel’s report was invalid, and that cabinet was deprived of the legal basis necessary to make its decision.
He said the review panel also failed to explain why adverse environmental effects to caribou and grizzly bears would be justified, and did not adequately consider the consequences of an oil spill.