However, Tom Isaac, who practices aboriginal law with Osler Hoskin Harcourt LLP in Vancouver, said that in legal terms, consultation doesn’t equal a veto by First Nations. He added that while there might be disagreement about the value of the Gateway project, it’s one of the most consulted-on projects in Canadian history.
Northern Gateway sets up an important test for the country’s regulatory system, and whether it stands up to scrutiny by the courts, Mr. Isaac said. “It goes way beyond Northern Gateway.”
Already, there have been five challenges to the joint review panel’s decision on the project. Three judicial review applications to the Federal Court of Appeal have come from three B.C. First Nations – the Haisla, the Gitga’at and the Gitxaala – and two have come from environmental groups. Those legal challenges say the joint review panel ignored or missed an array of salient issues related to aboriginal rights or the environment, including the protection of humpback whales and caribou. The challenges are on hold as everyone awaits Ottawa’s word on the project but could proceed in earnest as early as this fall if Ottawa gives the project a green light. Others aimed specifically at the cabinet decision next month could add to the pile-on.
First Nations aren’t revealing details of their legal strategies but promise they will use the courts to fight the projects. Others, such as Ms. Huson, are promising to stay on the land. At the request of local groups, the B.C. Civil Liberties Association recently held workshops to outline the rights of protesters who participate in lawful demonstrations. The association conducted B.C. workshops this spring in Prince Rupert, Kitimat, Hazelton, Smithers, Masset and Skedigate. Protesters are being encouraged to use their cameras or cellphones to document demonstrations in case any incidents arise.
In contrast to the wide gulf between Enbridge and some First Nations, companies proposing to build liquefied natural gas export terminals say they have enjoyed smooth relations with B.C. aboriginal groups. Ellis Ross, chief councillor of the Haisla First Nation near Kitimat, said his community’s open-minded attitude toward LNG is a world apart from deep-rooted fears and anger about Northern Gateway, and the potential of spills from oil tankers in the Douglas Channel.
“I really discourage civil disobedience and violence, but I don’t know how long my members will honour my request to be civil,” Mr. Ross said.
In an interview, Enbridge western access executive Janet Holder answers questions about civil disobedience by emphasizing the company will continue to consult with First Nations and build relationships. She also noted that 60 per cent of First Nations along the pipeline route have signed equity agreements – although the company, as per the wishes of the First Nations, keeps their names confidential.
But she doesn’t believe the legal challenges will drag on for untold years, or necessarily hold up the project.
“The appeal process is not something that will go on forever, and ever and ever,” said Ms. Holder, who has become the public face of Enbridge’s Northern Gateway push.
The NEB joint review panel has directed the company to satisfy 113 of 209 safety, environmental and financial conditions attached to its conditional sanction of the pipeline before construction can begin. Enbridge needs up to 16 more months to complete this work, Ms. Holder said, and therefore the project is not “shovel-ready” in any case. In the intervening time, she believes the legal challenges to the project will work their way through the legal system under a new, streamlined process for energy challenges that see them go directly to the Federal Court of Appeal, and then if necessary, the Supreme Court.
“They do not go back and re-hear evidence like they would in a trial,” she said.
Judicial reviews on energy projects are time-specific, she said, in part to ensure that “if you’re investing in infrastructure, for example in our case, that there is some reasonable amount of time that you can have certainty around in order to make your investment decision.”
Barry Robinson, a lawyer for Ecojustice – the non-profit heading up the legal challenge from the Raincoast Conservation Foundation, the Living Oceans Society and ForestEthics Advocacy – said that even if legal proceedings move quickly, and eventually the pipeline project gains legal legitimacy, that won’t address widespread B.C. opposition from First Nations and municipalities. For the federal Conservative government, he said, political considerations could quickly come into play.
Art Sterritt, executive director of the Coastal First Nations – whose opposition stems from concerns that oil spill cleanup technology is inadequate – said that even if the federal cabinet approves Northern Gateway with conditions, opposition in B.C. is so widespread that First Nations will have no trouble enlisting others to help escalate the fight against the oil pipeline project.
“It’s not just Coastal First Nations who are going to be out there standing in front of the bulldozers, it’s also going to be other British Columbians.”