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Canada’s 1st Nations Get Enbridge Pipeline OKs Tossed

Law360 June 30, 2016
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Law360, New York (June 30, 2016, 9:47 PM ET) — Canada’s Federal Court of Appeal on Thursday overturned approvals for Enbridge Inc.’s $7.9 billion North Gateway pipeline, finding that although the go-aheads were reasonable, the government fell short in its obligations to consult with First Nations groups.

The appeals court said that while Canada exercised good faith and designed a proper framework to consult with aboriginal representatives during the planning of the pipeline, the execution fell short in a critical phase of the consultation process that was supposed to happen between approval by Canada’s Joint Review Panel and approval by the Governor in Council.

“Meaningful consultation is not intended simply to allow Aboriginal peoples ‘to blow off steam’ before the Crown proceeds to do what it always intended to do. Consultation is meaningless when it excludes from the outset any form of accommodation,” the court wrote.

The order came down in a set of consolidated proceedings for challenges to government approvals for the project brought by First Nations groups, environmental advocates and others. The court called the proceedings one of the largest cases ever heard by the court, with over 250,000 documents and various petitions challenging different stages of approval for the pipeline, which is designed to bring oil from Alberta to the coast of British Columbia, and condensate from the coast to Alberta markets.

The aboriginal groups that challenged the consultations were the Gitxaala Nation, Haisla Nation, Gitga’at First Nation, Kitasoo Xai’Xais Band Council, Heiltsuk Tribal Council, Nadleh Whut’en and Nak’azdli Whut’en, Haida Nation, many of which were concerned about increased tanker traffic off the coast of British Columbia.

The Gitxaala Nation, in particular, indicated a significant concern about what the increased shipping activity would mean for its title and self-governance rights.

The judges noted Thursday that Northern Gateway didn’t decline to work with the aboriginal groups, but actively engaged with all First Nations and Métis groups on 80 kilometers on either side of the pipeline, including those outside that area who said they had a traditional claim to the land.

“While Canada exercised good faith and designed a good framework to fulfill its duty to consult, execution of that framework — in particular, one critical part of that framework known as Phase IV — fell well short of the mark.”

Phase IV was part of the framework laid out by the Canadian government that prescribed a consultation period between a 2013 Joint Review Panel decision, which recommended approval for the project as long as 209 conditions were met, and a 2014 Governor in Council order directing the National Energy Board to issue two certificates for the project.

The court did strike down several other challenges to the project, refusing to find that the Governor in Council had already prejudged the project before consultations had begun, and declining to invalidate the consultation framework.

But the court sided with the aboriginal groups in finding that Canada’s consultation process between the Joint Review Panel and the Governor in Council’s approval was lacking.

“Canada’s execution of Phase IV failed to maintain the honour of the Crown,” they wrote, adding that perhaps a four-month extension could have been all that was necessary to give the consultations the time they deserved.

Among the court’s findings, the judges wrote that Northern Gateway’s consultation made no assessment of the project’s impacts on aboriginal title rights, which was one of Gitxaala Nation’s primary concerns.

Rather, it confined its analysis to potential impacts on right to harvest and use land resources, including hunting and fishing rights. Even then, the judges wrote, the consultations did not assess any community’s concerns on an individual basis, but as a whole.

The judges quashed the Order in Council that directed the issuance of certificates of public convenience and necessity for the project, sending the process back to the Governor in Council for further proceedings.

They also issued a note of appreciation for the litigators in the case.

“This Court wishes to express its appreciation to the parties for their exemplary conduct in prosecuting the consolidated proceedings in an efficient and expeditious manner,” the judges said.

John Carruthers, Northern Gateway’s president, said in a statement Thursday that the company would consult with its Aboriginal Equity Partners and commercial project proponents to determine its next steps.

“However, the Aboriginal Equity Partners and our commercial project proponents are fully committed to building this critical Canadian infrastructure project while at the same time protecting the environment and the traditional way of life of First Nations and Métis peoples and communities along the project route,” Carruthers said.

Representatives and counsel for the Gitxaala Nation did not immediately respond to a request for comment late Thursday.

Judges Eleanor R. Dawson, David W. Stratas and C. Michael Ryer heard the case, and Judge Ryer issued a dissenting opinion.

The First Nations groups and other challengers are represented by teams from the James Freedman Kyle Law Corp., Peter Grant & Associates, Donovan & Company, White Raven Law Corp., Ng Ariss Fong, Mandell Pinder LLP, Goldblatt Partners LLP, Ecojustice, the Environmental Law Centre at the University of Victoria.

Northern Gateway Pipelines Inc. is represented by Dentons Canada LLP.

The case is Gitxaala Nation et al v. Her Majesty, The Queen, et a case number A-437-14 in Canada’s Federal Court of Appeal.

–Editing by Jill Coffey.

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