Above: Northern Gateway protest by JONATHAN HAYWARD / THE CANADIAN PRESS FILE PHOTO
Native groups, environmentalists opposed to oil pipeline have filed court challenges that could seriously delay or even scuttle the project.
Five different court challenges have been filed in court by groups arguing that a federally appointed joint review panel erred in a number of ways when it gave the go-ahead to Enbridge’s estimated $8 billion Gateway project.
A string of court challenges from native groups and environmentalists opposed to the Northern Gateway oil pipeline plan threatens to seriously delay — perhaps even scuttle — one of Prime Minister Stephen Harper’s priority projects.
Five different challenges have been filed in court — one each in the Federal Court and Federal Court of Appeal because it’s unclear at this time which court has jurisdiction to hear the applications — by groups arguing that a federally appointed joint review panel erred in a number of ways when it gave the go-ahead to Enbridge’s estimated $8 billion project, subject to more than 200 conditions.
Four environmental groups and three native bands, all in B.C., are trying to get a court to have the review panel’s report set aside.
No court dates have been set.
“We’ll exhaust all legal measures in relation to stopping the project,’’ says Elmer Moody, lead representative on the Gateway issue for the Gitxaala Nation, a north coast B.C. area community for which Moody is the former elected chief. His is one of the three native groups fighting Northern Gateway, arguing the review panel failed to meet its legal obligation by consulting sufficiently with First Nations on a project that crosses their traditional territories.
The challenges also centre on concerns about the panel’s due diligence — or perceived lack thereof — around potential oil spills, and the project’s impact on marine animals and wildlife.
Northern Gateway calls for two 1,177-kilometre pipelines to be built between Bruderheim, Alta., and Kitimat, B.C.
One would carry 525,000 barrels of bitumen — a dense form of petroleum — from Alberta’s oilsands to a yet to be built terminal in Kitimat, where it would be loaded into about 200 supertankers a year and shipped to Asian markets to be refined.
The other eastbound line would carry the product that thins the bitumen in preparation for westbound pipeline travel.
The Alberta portion of the line would cross more than 360 water courses, about half of that route crossing private land, half provincial or federal crown lands. The B.C. portion, about 660 kilometres long, crosses about 850 watercourses, and more than 90 per cent would be on provincial Crown lands.
Much of the route in both provinces would cross lands currently and traditionally used by aboriginal groups, the review panel’s report notes.
The proposed terminal in Kitimat would have two berths for tankers, three storage tanks for the diluting substance, and 16 tanks for oil storage.
The entire project is expected to take three years to build.
Though Harper’s cabinet hasn’t yet decided on the findings of the review panel, the prime minister has indicated he sees Northern Gateway as a priority, in the wake of Alberta’s oil boom.
While promising that his government is committed to adhering to its First Nations’ constitutional requirements, the prime minister recently stated the project offers an “unprecedented opportunity’’ for aboriginal people to “join the mainstream of the Canadian economy.’’
He added that failure to take advantage of the project means “we won’t make progress on all of the other things — the social issues — that we need to make progress on” in First Nations communities.
Enbridge and 10 other energy companies have invested more than $450 million to develop the Gateway proposal. According to the review panel report, up to 10 per cent of the equity has been set aside for aboriginal partners. Northern Gateway offered the equity package to 40 aboriginal groups, and 26 have accepted the offer.
With regard to the aboriginal groups challenging the project in court, none of the three have treaties, so they have aboriginal title and rights claims in the area, says Rosanne Kyle, a Vancouver lawyer representing the Gitxaala nation.
“Gitxaala Nation has aboriginal rights including title in the area where these tankers are proposed to go through. So they have expressed from day one, serious concerns about not just the risk of an oil spill, which frankly could be catastrophic. Gitxaala means people of the salt water. They are very concerned about an oil spill, (because they) rely on marine resources — a large part of their diet is from the sea,” Kyle says.
Sofie McCoy-Astell, a spokesperson for the Canadian Environmental Assessment Agency, says Ottawa is arranging meetings with aboriginal groups to consult on the joint review panel’s report before the government considers it.
She noted that last year the agency gave more than $400,000 to 31 aboriginal applicants to help them review and comment on the joint review panel’s report, and participate in “consultation activities.’’
Martin Olszynski, an associate professor at the University of Calgary’s law school, and expert in environmental and natural resources issues, says it’s unclear how the court challenges will fare.
“The law around aboriginal consultation is a very complex and rapidly changing area of law. It’s hard to know which way (the courts) will go in any given instance,’’ he says.
On the spills issue, a potential stumbling block for Ottawa is a recent report by Environment Canada, Natural Resources Canada, and the Department of Fisheries and Oceans on diluted bitumen — the product that would be carried in the Gateway pipeline.
The study found it floated on saltwater when it was free of sediment, even after evaporation and exposure to light and mixing with water.
But when fine sediments were suspended in the saltwater, high-energy wave action mixed the sediments with the diluted bitumen, causing the mixture to sink.
Pipeline opponents argue the latter finding spells doom if there’s an oil spill.
By not properly considering this evidence, and other related studies, pipeline opponents argue in their court documents that the review panel erred in concluding the pipeline project wouldn’t have a “significant adverse environmental effect.”