CALGARY – A decision to cancel approval for Enbridge’s Northern Gateway pipeline has implications for a wide range of other energy projects, such as Kinder Morgan’s TransMountain project and the Energy East initiative.
The Federal Court of Appeal on Thursday overturned the previous Conservative government’s approval of the Enbridge Inc. pipeline, saying there was a lack of consultation with First Nations. It’s up to the Liberal government to now decide if it should be built.
Lawyers said other companies looking to build energy infrastructure should take note.
In a scathing decision, the court found that Ottawa did not meaningfully consult with aboriginal groups in northern British Columbia after the National Energy Board published a preliminary list of conditions for the Northern Gateway pipeline.
“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,” Justices Eleanor Dawson and David Stratas wrote in their decision.
“It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal peoples. But this did not happen,” they wrote.
The decision now requires the federal government to “promptly” go out and consult with affected groups once again before it issues a new decision on whether Enbridge is allowed to build the pipeline between Alberta and the West Coast. Natural Resources Minister Jim Carr said in an email that the government is taking time to determine its next steps.
The Northern Gateway project was first approved, subject to more than 200 conditions, in 2014 under the previous Conservative government. Construction has not begun, however, due to multiple legal challenges.
In recent months, Enbridge has applied for a three-year extension for the project so it can carry out more consultations with First Nations along the route with the intention of getting more groups to support the project.
Following the appeals court ruling, Northern Gateway president John Carruthers said in a release that the company would consult with the aboriginal groups that have signed on and support the $7.9-billion project before it determines what to do next.
Enbridge has the option of asking the Supreme Court of Canada to hear an appeal of the decision – though the decision takes issue primarily with the government’s consultation with First Nations rather than Enbridge’s consultation.
Lawyers said the federal government would have to review how it consults with aboriginal groups during pipeline reviews, especially after preliminary conditions are released during a process known in legal circles as “phase four” of a five-phase consultative process.
JFK Law Corp. associate Elin Sigurdson, who was part of the team acting for the Gitxaala Nation on the case, said the federal government “is going to have to take a lot of guidance from this decision” for carrying out future consultation on pipeline projects.
“That’s applicable to Kinder Morgan, that’s applicable to other projects that are either being planned or investigated,” she said.
“The decision confirms what we have known all along – the federal government’s consultation on this project fell well short of the mark,” Nadleh Whut’en First Nation chief Larry Nooski said in a release.
The ruling also puts the pipeline’s fate in the hands of a new government, which vocally opposed the project during last year’s federal election.
“The Liberals ran on a platform of rejecting this pipeline and we intend to hold them to that promise,” said Sven Biggs, a campaigner with Stand – an organization previously called ForestEthics. ForestEthics was one of the complainants in the case.
“Either when they come to reconsider this decision by the court or whether it’s through the North Coast tanker ban, the Liberals will find a way to stop this project,” Biggs said.