After a challenge by Coastal First Nations and Gitga’at Nation, the B.C. Supreme Court has ruled that the Province failed to consult with First Nations about the Northern Gateway Project.
At issue was the Province’s role in the review of the Northern Gateway Project, which was approved by the federal government in 2014, and whether the Province had satisfied its duty to consult with First Nations.
The Project was not subject to a provincial environmental assessment due to an agreement between the Province and the federal National Energy Board. This agreement, known as the Equivalency Agreement, was intended to provide a coordinated approach between the Province and the federal government in assessing the Project. The Agreement removed the need for a provincial environmental assessment and stopped the Province from needing to issue an Environmental Assessment Certificate for the Project.
The challenge to the Equivalency Agreement, and its purported removal of the Province’s obligation to carry out its own environmental assessment for the Project, was brought by the Coastal First Nations, an alliance of First Nations on B.C.’s north and central coast and Haida Gwaii. Members include the Wuikinuxw Nation, Heiltsuk, Kitasoo/Xaisxias, Nuxalk Nation, Gitga’at, Metlakatla, Old Massett, Skidegate, and Council of the Haida Nation.
The nations argued that the Province needed to make its own decision about the Project, and that in doing so it needed to consult with them.
Their two main arguments were that:
- The Province was not entitled to completely abdicate its decision making authority in relation to the Northern Gateway Project; and
- The Province owed a duty to consult with First Nations before entering into the Equivalency Agreement. They argued that due to the nature of the concerns raised by the Coastal First Nations, and in particular Gitga’at, the Province also owed a duty to consult before deciding not to terminate the agreement.
The Court largely agreed with the Coastal First Nations. In doing so Justice Koenigsberg declared that the part of the Equivalency Agreement that removed the need for the Province to issue a Certificate for the Project was invalid. The Judge held instead that the Province is required to issue a Certificate in relation to the Project and in doing so must consult about the potential impacts of the Project, and in particular must consult with Gitga’at First Nation.
While the Court found the Province to be entitled to enter into the Equivalency Agreement without consultation, it did owe a duty to consult about its decision not to terminate the Equivalency Agreement before the Project was approved. At this time, British Columbia was aware of the serious concerns expressed by First Nations with the Project and with the environmental assessment conducted to date, and it had the authority to terminate the Agreement and conduct its own assessment. Despite requests from the Coastal First Nations to consult during this time, the Province failed to do so. The Court found this to be a breach of their duty.
The Court also rejected arguments made by Northern Gateway that the Coastal First Nations were barred from bringing the challenge for various procedural reasons including collateral attack, improper litigation and abuse of process.
What Happens Next?
The Province will now be required to decide whether to issue a Certificate for the Project. In doing so, they must consult with First Nations.
When the Province participated as an intervenor in the review of the Northern Gateway Project, they set out the following five conditions as minimum requirements to be met before British Columbia could support the Project:
- Successful completion of the environmental review process. In the case of Enbridge, that would mean a recommendation by the National Energy Board Joint Review Panel that the project proceed;
- World-leading marine oil spill response, prevention and recovery systems for B.C.’s coastline and ocean to manage and mitigate the risks and costs of heavy oil pipelines and shipments;
- World-leading practices for land oil spill prevention, response and recovery systems to manage and mitigate the risks and costs of heavy oil pipelines;
- Legal requirements regarding Aboriginal and treaty rights are addressed, and First Nations are provided with the opportunities, information and resources necessary to participate in and benefit from a heavy-oil project; and
- British Columbia receives a fair share of the fiscal and economic benefits of a proposed heavy oil project that reflects the level, degree and nature of the risk borne by the province, the environment and taxpayers.
At the time Canada approved the Project in 2014, the NEB approval was the only of these requirements that had been met.
In light of the outstanding concerns with the Project, many of which are shared by First Nations, it will be up to British Columbia to determine if it can justify issuing a Certificate in such a way that will satisfy the Province’s environmental assessment laws and the Crown’s duty to consult with First Nations.