The fate of Enbridge Inc.’s proposed $7.9-billion Northern Gateway pipeline project is in limbo while the federal government ponders its next step.
In separate announcements Tuesday, both the government and Northern Gateway Pipelines Inc. announced that they will not appeal a July court ruling that quashed an Order in Council approving the project. The Federal Court of Appeal ruling also nullified two National Energy Board certificates for the pipeline.
The ruling found that while Northern Gateway Pipelines had met its requirements, the government had not adequately fulfilled its duty to consult First Nations. The proposed 1,177-kilometre twin pipeline that would run from near Edmonton to a new marine terminal at Kitimat, on the B.C. coast, cannot proceed without the OIC and the NEB certificates.
Natural Resources Minister Jim Carr said in Ottawa the government will not challenge the court judgment.
“We’re not appealing the decision … because we understand what the court has said,” Mr. Carr said. “The court was not critical of Enbridge, was not critical of the regulator, but was critical of the Harper government that didn’t do its job. So we’re not going to contradict the court’s judgment in this case.”
The court ruling states that while the government “exercised good faith and designed a good framework to fulfill its duty to consult, execution of that framework … fell well short of the mark.”
Re-engaging First Nations in the consultation process is one clear option facing the government, but Mr. Carr declined to say what the next step might be.
“We’ll review our options,” he said. “We are not interested in carrying things out any longer than is reasonable or necessary to do. The news today is that we will not appeal the decision because we agree with the conclusion that the Harper government did not do its job well enough.”
Northern Gateway also issued a statement saying it won’t appeal the court ruling, and the company is hopeful Ottawa will soon resume consultation.
“We believe that meaningful consultation and collaboration, and not litigation, is the best path forward for everyone involved,” said John Carruthers, president of Northern Gateway Pipelines. “We look forward to working with the government and aboriginal communities in the renewed consultation process.”
Although many First Nations in B.C. oppose the project, Mr. Carruthers said Northern Gateway Pipelines has developed agreements with 31 “aboriginal equity partners” who support it.
“Canadians need certainty that the government will fully and properly consult with our nation’s indigenous communities,” he said.
In a joint statement, representatives of four aboriginal equity partners called on the government “to actively and fully undertake the required consultation as directed by the Federal Court of Appeal.”
But Peter Lantin, president of the Council of the Haida Nation, said the Northern Gateway project is dead and should not be revived.
He said having Ottawa consult with First Nations now “would be a waste of time and money given the history of the project.”
Mr. Lantin said First Nations want to develop a new process of consultation with the government – but not over Northern Gateway.
“No matter what they say in consultation, we will still be opposed to this project,” he said.
Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation, a B.C. non-profit, said he isn’t surprised neither the government nor Northern Gateway plan to appeal.
“I didn’t see any merit in appealing on the issues that related to the Government of Canada and the proponent,” he said.
Prof. Tollefson, a law professor at the University of Victoria, appeared in the Federal Court of Appeal case on behalf of several environmental groups opposed to the pipeline project. He said it will be difficult for the federal government to meet its consultation requirements without also addressing environmental concerns.
“The environmental issues are very much interwoven with the aboriginal rights issues in play,” he said. “So it’s not going to be a simple matter of fixing the consultation … unless you can address the deficiencies with the way the process failed to grapple with the environmental issues.”
Kelly Russ, chair of the Coastal First Nations, said he is pleased the Federal Court of Appeal decision won’t be challenged.
“However, in politics, today’s NO is tomorrow’s political challenge,” he said in an e-mail.Report Typo/Error
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