A cabinet decision on the proposed Enbridge Northern Gateway Project should be delayed until legal challenges are resolved, says one of the parties objecting to the report on the pipeline by the federal Joint Review Panel.
"We've sought an order from the Federal Court of Appeal prohibiting cabinet from making any final decisions, issuing any orders or any authorizations until our lawsuit has been dealt with," Chris Tollefson, a lawyer for the Federation of B.C. Naturalists, said Sunday.
The group is one of several environmental and First Nations organizations to file applications with the Federal Court challenging the Joint Review Panel's Dec. 19 report which, with over 200 conditions attached, recommended government approval of the $6.3-billion pipeline that has been proposed across northern B.C.
Ivan Giesbrecht, an Enbridge Inc. spokesman, said the project went through an exhaustive hearing process that heard testimony from 80 experts, "including some of the foremost scientists and engineers in their fields," and he did not think the legal challenges should delay a government decision.
"We believe that these [legal] filings are premature," he stated in an e-mail. "At this stage, Northern Gateway does not believe this will necessarily delay the review by the Federal Government of the JRP's report."
Mr. Giesbrecht said the JRP process was detailed and Enbridge dealt with all the issues raised.
"The Joint Review process was based on sound science and fact and was the most thorough and comprehensive in Canadian history. Northern Gateway's submission to the JRP was the most comprehensive application ever submitted," he stated.
Mr. Giesbrecht said the legal challenges filed last week were expected because the process includes a 30-day window in which opponents can appeal the panel's decision.
"Friday's filing from various environmental and aboriginal groups did not come as a surprise to us," he stated.
A spokeswoman for Natural Resources Minister Joe Oliver told The Globe and Mail on Friday that the government would not comment on the lawsuits.
Mr. Tollefson, a professor at the University of Victoria where he is executive director of the Environmental Law Centre, said he doesn't see how cabinet can make a decision on the JRP recommendation until the legal challenges have all been heard.
"We can't predict which arguments will succeed and the remedy will flow from which arguments are upheld … [but] at the very bare minimum we say this report is not adequate and should not go to cabinet," he said. "We say it should be remitted back to the panel to remedy the defects, if the defects can be remedied. And in some cases, in our view, to remedy those defects the hearing would have to be reopened."
Among other things, the Federation of B.C. Naturalists is challenging the JRP for failing to adequately consider threats to a small, endangered caribou herd and for not taking into account the impact that numerous small oil spills can have on marine birds.
According to the application, the JRP report only refers to the Bearhole-Redwillow caribou herd as being "in decline," but the evidence at the hearing was much more stark.
"The evidence showed that this herd has been in drastic population decline … and that the proposed pipeline could have significant and irreversible impacts on the Bearhold-Redwillow population," states the application. "The … evidence confirmed that the Bearhole-Redwillow herd was not just 'in decline' but could be eradicated if this pipeline proposal were to proceed."
According to a provincial report last spring the Bearhole-Redwillow herd is down to just 24 animals.
The application claims the JRP also breached its duty by failing to consider the effects of "chronic oiling" on marine birds.
"Unlike catastrophic spills, which are single events during which large volumes of oil are released into the environment, in the scientific literature the term 'chronic oiling' refers to the adverse environmental effects associated with the discharge of small volumes of oil, usually 1,000 litres or less, from multiple sources," the application states. "In the report, the panel did not mention chronic oiling."
The application claims that with respect to both caribou and marine birds, the JRP "erred in law and/or jurisdiction by declining to address the evidence before it."
Mr. Tollefson is also arguing the JRP report has a broader legal flaw that makes it unacceptable.
"Our concern with this report overall is that it fails the legal test of transparency and intelligibility. That in many key places it fails to offer reasons, it fails to offer an analysis in support of conclusions that it reaches," he said. "We say this is a defect that is general and applies to the whole report and it's something the court has to look at on top of the specific issues that we've raised."