First Nations hereditary leader loses court fight in LNG case

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The Federal Court of Appeal has dismissed an application for a judicial review into whether Ottawa acted properly when it approved plans for a liquefied natural gas terminal in British Columbia, saying it is a moot point now because the project has been scrapped.

Donnie Wesley, a hereditary tribal leader at the Lax Kw'alaams First Nation, filed his notice of appeal in the fall of 2017.

Pacific NorthWest LNG, led by Malaysia's state-owned Petronas, announced on July 25, 2017, that it cancelled plans build an $11.4-billion terminal on Lelu Island in the Port of Prince Rupert.

The following day, a lower court judge ruled that Mr. Wesley lacks the necessary legal standing to challenge Ottawa's decision in September, 2016, to give the go-ahead to Pacific NorthWest, or PNW for short.

Justice Robert Barnes of the Federal Court said Mr. Wesley failed to prove that he is head chief of the Gitwilgyoots tribe – one of nine allied tribes of the Lax Kw'alaams First Nation.

(Carl Sampson Sr., who also goes by the Indigenous name Iyoo'ns, filed his own documents in Federal Court to assert that he is the head chief of the Gitwilgyoots and not Mr. Wesley, who is also known as Yahaan.)

"In my view, reasonable minds would agree with the conclusion that Yahaan's application for judicial review is now moot," Justice Denis Pelletier of the Court of Appeal said in the 19-page judgment in February. "There is no factual dispute as to PNW's termination of the project and the steps which it took to give effect to that termination. The possibility of the project being revived is, at best, speculative."

Mr. Wesley, who led a protest camp on Lelu Island, remains concerned about the possibility of future proposals to use the island as the site of a liquefaction plant to export LNG to Asia.

But Justice Pelletier said he doesn't see signs to indicate a looming renaissance. "The evidence that the project is at an end is compelling," he said in the unanimous ruling on behalf of the appeal court's three-member panel. "I have no difficulty finding, on a balance of probability, that PNW has terminated the project."

The Gitwilgyoots tribe claim Lelu Island as part of its traditional territory in the Skeena River estuary.

"The only fact put forward to suggest that the project is not effectively at an end is the fact that the B.C. Environmental Assessment Certificate does not expire until Nov. 25, 2019," according to the appeal court's judgment. "One might also point to the fact that the federal approvals have no expiry date. As a result, it is conceivable that another entity seek to take advantage of those approvals and the project."

Court documents show that Lax Kw'alaams Mayor John Helin supported Pacific NorthWest's plans to build on Lelu Island, subject to assurances from the Petronas-led consortium that it would protect salmon habitat and comply with environmental monitoring programs, including input from the Lax Kw'alaams.

Mr. Helin, one of the respondents in the appeal court, "moved to have the appeal dismissed for mootness since there is no longer a live dispute between the parties," wrote Justice Pelletier, who agreed with the elected Lax Kw'alaams band's motion for an order to dismiss the appeal.

Lawyers for the federal cabinet, the federal Environment Minister and the Canadian Environmental Assessment Agency requested an order from the appeal court to stay Mr. Wesley's application instead of an outright dismissal, based on the possibility that the project might be revived.

"I believe that the interests of justice are best served by dealing with this matter now rather than leaving them in limbo for a period of time only to have the parties bring a motion to dismiss again at a later date. As a result, the motion for a stay of proceedings is dismissed, by way of separate order," Justice Pelletier said.

The appeal court added that other approvals obtained by Pacific NorthWest have been surrendered or terminated, including ones granted by the B.C. Oil and Gas Commission and the Prince Rupert Port Authority.