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Northern Gateway assessment mishandled by B.C. government: judge

Douglas Channel, the proposed termination point for an oil pipeline in the Enbridge Northern Gateway Project, in Kitimat on January 10, 2012.


The B.C. government acted improperly when it gave Ottawa responsibility for assessing the environmental impact of the proposed Northern Gateway pipeline, the Supreme Court of B.C. has ruled.

In a decision released Wednesday, the court declared invalid the federal environmental assessment certificate issued for the $7.9-billion project.

The ruling holds possible implications for another proposed pipeline, the $6.8-billion Kinder Morgan expansion project, which is currently before the National Energy Board. The decision states such projects need to have provincial as well as federal environmental approvals.

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The impact on Northern Gateway itself is likely minimal. Although the project has its federal approvals in place, it is considered all but officially dead in B.C. due to five provincial conditions that haven't been met and an oil tanker ban Prime Minister Justin Trudeau has promised on B.C.'s North Coast.

If the project were to go ahead, the B.C. Supreme Court decision could force a restart of the environmental approval process.

Ivan Giesbrecht, a spokesman for Northern Gateway, said the project went through all the required processes and it falls under federal jurisdiction, which gave it conditional approval.

"This was one of the most exhaustive reviews of its kind in Canadian history," Mr. Giesbrecht said in an e-mail. "This decision from the British Columbia Supreme Court does not change that approval or the project's environmental assessment."

He added that Northern Gateway continues its work to meet the conditions laid out by the joint review panel and any conditions that the B.C. government may impose.

Art Sterritt, a spokesman for the Gitga'at First Nation, one of the aboriginal groups that took the B.C. government to court over the Northern Gateway environmental assessment process, said the ruling means the Kinder Morgan project should face additional assessment.

"Northern Gateway, Kinder Morgan – it's exactly the same issue," Mr. Sterritt said.

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"The B.C. government has entered into equivalency agreements regarding Northern Gateway and Kinder Morgan and [the province is] now going to have to consult with all those First Nations [along the pipeline routes], which they haven't done yet."

Early in the Northern Gateway pipeline review process the B.C. government signed an "equivalency agreement" with Ottawa, giving the federal government responsibility for environmental assessment.

The move was made to streamline the environmental approval process by reducing federal and provincial overlap.

But Mr. Sterritt said First Nations challenged the decision because the B.C. government failed to consult with aboriginal governments before signing the equivalency agreement.

"One of the really big deals in the case was that B.C. was trying to make the argument that the NEB environmental assessment process was equivalent to B.C.'s. And we said, 'No it's not. B.C.'s is more diligent and has more responsibilities in terms of effects on First Nations and the environment. It's not equivalent.'"

The provincial government has long said the proposed Northern Gateway project won't get provincial support until it meets five conditions, which include meeting legal requirements regarding aboriginal treaty rights, completing the environmental review process and putting world-leading oil-spill response systems in place.

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But Mr. Sterritt said those objections by B.C. appeared to be disingenuous because at the same time the province was giving Ottawa authority over environmental assessment.

"B.C. had the power to remove themselves from the equivalency agreement and they didn't do that. So the Coastal First Nations and the Gitga'at were going after them, saying, 'Hold on, you can't do that,'" Mr. Sterritt said. "That's what we went to court about."

Justice Marvyn Koenigsberg said in her ruling that "I cannot find that it was reasonable or correct for the Province to exercise its discretion" in giving Ottawa sole authority over environmental assessment.

She ruled the equivalency agreement "is invalid" and said the project cannot begin until a provincial environmental assessment certificate has been issued.

B.C. Justice Minister and Attorney-General Suzanne Anton could not be reached immediately for comment.

Editor's note: An earlier digital version of this story incorrectly referred to Justice Marvyn Koenigsberg as male; however, Justice Koenigsberg is female. This digital version has been corrected.

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