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First Nations’ challenges of Northern Gateway pipeline to be heard in court

The view looking down the Douglas Channel from Kitimat, B.C. is seen in this file photo. The Northern Gateway pipeline once built would bring oil from Alberta to the British Columbia coast to be loaded on tankers and shipped around the world.

JONATHAN HAYWARD/THE CANADIAN PRESS

Multiple legal challenges aimed at overturning the federal government's approval of Enbridge Inc. Northern Gateway pipeline plan will be heard starting Thursday.

The challenges are expected to bring new scrutiny to Ottawa's environmental approval process and its responsibility to consult with aboriginal groups.

Eight First Nations, four environmental groups and one labour union launched the legal actions, which will be heard at the Federal Court of Appeal over six days in Vancouver.

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Their arguments include that the federal panel that reviewed the project didn't adequately consider threats to wildlife and oceans and excluded key issues of concern to First Nations.

"There was no consultation," said Terry Teegee, a tribal chief with the Carrier Sekani Tribal Council, which represents two communities that have filed litigation. "We didn't participate in the Joint Review Panel process because it didn't address the issues that we wanted, in terms of the cumulative impacts of the project as well as our title and rights."

The government accepted the panel's recommendations and in June, 2014, approving the $7-billion project that would carry bitumen from Alberta's oil sands to British Columbia's coast. There were 209 conditions attached to the approval.

Canada's Attorney-General, Northern Gateway Pipelines L Partnership and the National Energy Board are named as respondents to the challenges.

Three organizations – Amnesty International, the Canadian Association of Petroleum Producers and British Columbia's Attorney-General – will make arguments as intervenors.

The federal government declined to comment ahead of the hearings.

Speaking for Northern Gateway, Ivan Giesbrecht said the company recognizes traditional aboriginal land-use rights and believes First Nations should share in ownership and benefits.

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"Our ongoing priority is to continue to build trust, engage in respectful dialogues and build meaningful partnerships with First Nations and Métis communities," he said.

"We know we have more work to do in this regard and we are committed to doing this work," Mr. Giesbrecht said.

Mr. Giesbrecht said the Joint Review Panel's examination of the Northern Gateway project was among the most exhaustive in Canadian history, spanning 180 days of hearings.

But Karen Wristen of the Living Oceans Society, among the groups that filed challenges, said the panel appeared to ignore crucial evidence submitted by intervenors.

Her organization's evidence indicated spilled bitumen would sink beneath the ocean's surface, making it impossible to recover using conventional technology. The panel's report, however, found the environment would recover within months or years – a conclusion for which Ms. Wristen said there's no evidence.

She said she hopes the hearings draw attention to Canada's "suffering" environmental assessment process.

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"I think environmental assessment in this country is in deep, deep trouble at the moment," she said. "It's not providing the kind of in-depth scientific review that the government would have us believe it is."

Pete Erickson, a hereditary chief with the Nak'azdli First Nation, said Enbridge was given days to present its case to the panel while he got 10 minutes to speak for his people. He said a 2014 Supreme Court decision that gave land title to the Tsilhqot'in sets a precedent that requires the government to not only consult with First Nations, but seek their approval.

"We've said that under no circumstances is the pipeline ever going to be allowed in the current presentation," he said. "We've decided that there's no way we can allow it and I believe that the court will recognize that we have the right to say that."

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