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First Nations launch court challenge against B.C. over Northern Gateway

The view looking down the Douglas Channel from Kitimat, B.C.

Jonathan Hayward/The Canadian Press

Coastal First Nations are taking the B.C. government to court in an attempt to strike down an agreement that gave Ottawa decision-making authority over the Enbridge Northern Gateway pipeline project.

It is the 19th legal challenge that has been filed against the project since the federal government gave conditional approval to the controversial pipeline last year.

"This is our happy New Year to the province," said Art Sterritt, executive director of the Coastal First Nations – Great Bear Initiative Society, which represents eight aboriginal groups on the north and central coast.

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He said his organization launched the legal challenge because all of the other cases, which have been filed by several First Nations and environmental groups, deal with alleged flaws in the federal process, not with the province's decision to hand over the environmental review to Ottawa.

"B.C. had the power under their own Environmental Assessment Act to make a decision as to whether or not they would accept the recommendations [of the federal joint review panel] and they didn't do that," Mr. Sterritt said. "They had a legal obligation to consult with us before giving the federal government the power to make this decision. So that's what this is all about. We don't think they met their legal obligation on this."

In 2010, British Columbia signed an equivalency agreement with Ottawa, which delegated the environmental approval process to two federal agencies, the National Energy Board and the Canadian Environmental Assessment Agency.

B.C. participated in the hearings only as an intervener.

The petition filed in the Supreme Court of B.C. on Tuesday seeks an order invalidating the equivalency agreement and a declaration that an environmental assessment certificate can't be issued because the province failed to consult with First Nations on the decision to delegate authority.

"The petitioners say the Equivalency Agreement is invalid on administrative law and constitutional grounds, including that it was made without any – let alone adequate – consultation," the petition states.

"Because of the Equivalency Agreement … the Province could only make submissions to the federal government on the environmental assessment; it had no statutory power by which it could require further environmental assessment or impose additional conditions pursuant to the assessment process," states the petition, which was filed jointly by the Coastal First Nations and the Gitga'at First Nation.

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The Gitga'at are based in Hartley Bay, a small community on the shipping channel that more than 200 oil tankers a year are projected to use, if the 1,000-kilometre pipeline from Alberta to the B.C. coast goes ahead. Coastal First Nations say a tanker accident could wipe out harvesting sites and destroy their traditional way of life.

A Ministry of Environment spokesman said Tuesday the province had not yet received the petition and therefore could not comment.

Ivan Giesbrecht, manager of communications for Northern Gateway, said it would be inappropriate to comment on a matter before the courts.

However, he said in an e-mail that the company remains confident "in the rigour and thoroughness of the National Energy Board's Joint Review Panel process – one of the most exhaustive of its kind in our country's history."

Mr. Giesbrecht said Canadians "can have confidence in this independent, evidence-based, and transparent process." He said Northern Gateway is busy consulting with British Columbians and meeting the 209 conditions set by the joint review panel when it recommended approval.

"In the months ahead, we are focused on making progress on our priorities: engaging in respectful dialogue with Aboriginal communities to build further trust, mutual understanding, and meaningful partnerships … and ensuring that families and communities benefit with jobs, economic opportunity and skills training," he said.

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About the Author
National correspondent

Mark Hume is a National Correspondent for The Globe and Mail, based in Vancouver, writing news and feature stories on a daily basis about his home province of British Columbia. His weekly column, which often challenges the orthodoxy on environmental issues, appears every Monday. More


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