The Haida Nation and seven other First Nations won a key court ruling last week that overturned approval of Enbridge’s Northern Gateway project.
“It’s a great day for Haida Gwaii and the coast of B.C.,” said Peter Lantin (kil tlaats ‘gaa), president of the Council of the Haida Nation, in a press release.
“We’re all celebrating a victory for the oceans and our way of life.”
In a majority 2-1 ruling, judges on the Federal Court of Appeal found the Conservative government failed to properly consult the affected First Nations before granting conditional approval for the 1,117 km crude oil pipeline and Kitimat export terminal in 2014.
“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,” said the court.
“The inadequacies—more than just a handful and more than mere imperfections—left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.”
The judges found consultations were especially lacking during the phase that followed the report from the Joint Review Panel—at that time, the Harper government was expected to consult on any concerns that fell outside the JRP mandate.
“Missing was any indication of an intention to amend or supplement the conditions imposed by the Joint Review Panel, to correct any errors or omissions in its Report, or to provide meaningful feedback in reports to the material concerns raised,” said the court.
“Missing was someone from Canada’s side empowered to do more than take notes, someone able to respond meaningfully at some point.”
While the judges did consider a previous court ruling involving the Haida Nation that set a higher bar for consulting First Nations with the strongest case for aboriginal title, they did not agree that the Haida Nation’s many co-management agreements with Canada and B.C. affect that duty.
The court said the current federal government could return the project back to the National Energy Board for more review, or to directly renew consultations with the Haida and other First Nations.
Either would require the new Liberal government to re-approve Northern Gateway.
In a statement, Natural Resources Minister Jim Carr said the government is reviewing the decision, adding that it wants to build a nation-to-nation relationship with indigenous peoples and restore public confidence in environmental reviews.
During the election campaign last fall, Justin Trudeau said if he were elected prime minister, the project would not happen.
Trudeau has since called on Transport Minister Marc Garneau to formalize an oil tanker ban along B.C.’s north coast.
An existing, non-binding moratorium that passed the House of Commons in 2010 excludes oil tankers from Dixon Entrance, Hecate Strait and Queen Charlotte Sound.
John Carruthers, president of the Northern Gateway project, said after the ruling that he will discuss next steps with the Aboriginal Equity Partners, shipping companies, and other partners that jointly back Northern Gateway.
“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,” he said in a statement.
Local Skeena-Bulkley Valley MP Nathan Cullen said last Thursday that the ruling shows Canada’s environmental review process is deeply flawed, and need fixing.
The NDP MP and environment critic also said it should encourage the Liberals to move ahead with the north coast tanker ban.
“I think if they were looking for a reason to finally bring it it, this would be it,” he said.
Asked about the future of the Northern Gateway project, Cullen called the ruling a “near-fatal” blow.
“Some have mused that the project is outright dead—I’m not sure that’s true,” he said. “It seems to be the project that never dies.”
The decision rests with Trudeau and his cabinet, Cullen added, noting that he would be very surprised if the prime minister chose to restart consultations on Northern Gateway or appeal last week’s ruling.
“Not for the life of me would I understand why he would do that, particularly after so many commitments on new respect for First Nations and the climate-change concerns he was just speaking about with President Obama yesterday.”.