Peter O’Neil | Vancouver Sun, September 20, 2016
OTTAWA — The Trudeau government is expected this week to launch a new round of consultations with northern B.C. First Nations on the controversial $7.9-billion Northern Gateway pipeline.
The move would be in response to a June ruling by the Federal Court of Appeal that quashed the former Conservative government’s 2014 approval of the proposed pipeline from Bruderheim, near Edmonton, to Kitimat on the West Coast.
Ottawa is facing a court-imposed Thursday deadline to determine whether it will appeal, and is confronting complex legal and political questions surrounding that decision.
The June court decision found that the former government’s consultations with affected First Nations were “brief, hurried and inadequate.”
But the two judges writing for the majority on the three-person appeal panel estimated that a new outreach process would only require about four months of talks, or “just a fraction of the time” since Enbridge first proposed the project in 2005.
The government is facing “very difficult issues” in relation to the decision, Natural Resources Minister Jim Carr told reporters Monday.
“We will make it in the time allotted to us by the Federal Court” of Appeal, he said.
One of the complicating factors is the government’s 2015 campaign promise to bring in a moratorium on oil tanker traffic on the northern B.C. coast.
Such a move would prevent the project from proceeding, though the government has never specified how long a moratorium — which by definition is temporary — would be in place.
The National Post reported earlier this year that the government hasn’t closed the door on the project if the proposed terminal was moved from Kitimat to Prince Rupert.
In the event of new consultations, the federal cabinet would have the option after the talks conclude to send the matter back to the National Energy Board, perhaps tasking the NEB to consider adding conditions to the 209 that the board has already imposed on the company.
The federal government would also have the option, after weighing the results of the consultations, to either approve or kill the project, the judges noted in their ruling.
Enbridge, which also has the option of appealing the June decision, has refused to speculate on what it wants the government to do.
“We’re aware of the upcoming deadline, but we’re not able to speculate on what the government will or won’t do,” said spokesman Ivan Giesbrecht.
University of Victoria aboriginal law professor Chris Tollefson, who represented one of the environmental groups involved in the court case, said he doesn’t expect an appeal by either Canada or the company.
The process would take up to two years if Canada’s top court agreed to hear the case, and Tollefson said permission is unlikely given that the judges were simply following the Supreme Court’s direction to lower courts on Aboriginal consultation.
There has been speculation that a federal decision to do more consultations would be based on concern about a possible costly lawsuit if it doesn’t take that step.
Enbridge has said it’s spent roughly $500 million so far on the approval process, and some suggest the Crown’s failure to adequately consult could open the door to a successful court case seeking damages.
But Tollefson, noting that the Supreme Court is traditionally deferential when it comes to cabinet decisions, said Enbridge would have an extremely difficult time winning such a case.
“I think it would be an extraordinary precedent for government to be held liable for regulatory negligence here,” he said in an e-mail Monday.
“The proponent would have to show that if a constitutionally adequate consultation had occurred, Cabinet would have still been granted project approval, and the project would have proceeded.”
The government is also weighing the politics involved.
With Environment Minister Catherine McKenna announcing Sunday that Ottawa will impose a national carbon tax system if provinces can’t agree on their own, some analysts have said they believe Prime Minister Justin Trudeau is laying the groundwork for a favourable decision in December on the $6.8-billion Kinder Morgan expansion of its pipeline system from Edmonton to Burnaby.
Killing Northern Gateway, when packaged with a national carbon tax, could provide Trudeau with the additional political cover he needs to convince British Columbians to accept the Kinder Morgan project over the objections of Vancouver Mayor Gregor Robertson, environmentalists and a number of First Nations.
Trudeau, when asked about pipelines, has always indicated he favours helping get Alberta’s bitumen to offshore markets.
But he always insists that any such effort be combined with steps to protect the environment and respect First Nations.
“One of the fundamental responsibilities of any prime minister is to get our resources to market,” he told the House of Commons in April.
“However, in the 21st century, getting those resources to market means doing it responsibly for communities, for indigenous peoples and for the environment.”