The Globe and Mail reports, “Months before [the June 17] green light from Ottawa, three First Nations – the Haisla, the Gitga’at and the Gitxaala – launched judicial review applications to challenge the legitimacy of the National Energy Board’s joint review panel decision to conditionally approve to the [Enbridge Northern Gateway pipeline]. If leave to appeal Ottawa’s decision is granted, a number of new and related court actions will proceed to the Federal Court of Appeal – likely in the fall.”
The Gitxaala Nation, which is located on the north coast of British Columbia, have already said they are preparing broader lawsuits against either the federal government, the company, or both.
Indra Das writes in Desmog Canada, “[The] Gitxaala Nation filed a lawsuit on January 17… [Their] lawyers said that the review panel did not properly consider Aboriginal rights and title or weigh the public interest against the pipeline’s economic benefits to the Alberta oilsands. The band participated in the hearings, expending significant resources in submitting more than 7,500 pages of documentary evidence, providing nine expert witnesses and including a 320-page submission detailing the adverse effects of having as many as 230 supertankers moving through Gitxaala Nation territory annually. The band claims tanker traffic in traditional waters violate their Aboriginal rights and title, noting the potential catastrophic effects an oil spill in the region’s narrow coastal channels may have on Gitxaala way of life and the ecosystems they’ve harvested from for centuries. The suit observes that the review panel had a mandate to consider the band’s constitutionally protected rights in a meaningful way, and chose to ignore it.”
Simply put, their lawyer Rosanne Kyle says, “Gitxaala were given the opportunity to speak, but were not heard.”
She has also commented, “Gitxaala Nation has aboriginal rights including title in the area where these tankers are proposed to go through. So they have expressed from day one, serious concerns about not just the risk of an oil spill, which frankly could be catastrophic. Gitxaala means people of the salt water. They are very concerned about an oil spill, (because they) rely on marine resources — a large part of their diet is from the sea.”
In another Globe and Mail article, Dayna Nadine Scott, an Associate Professor at Osgoode Hall Law School, notes the arguments raised by the three Nations in the applications to the Federal Court for judicial review of the federal panel report recommending approval.
“They allege that the panel failed to properly assess the evidence before it according to established legal standards. The panel selectively ignored upstream environmental impacts, though it appears to have relied heavily on upstream economic benefits. The panel also accepted data relied on by the project proponent, despite questions about its scientific integrity raised by the applicants in the hearings. According to the applicants, these failures led the panel to underestimate the significance of potential environmental effects associated with the proposed pipeline – the very point of the environmental review process.”
“The applicants point to the inadequacy of the consultation process. An important purpose of the environmental assessment was to allow members of affected communities and First Nations to convey their views, and these groups say they were not heard. With respect to First Nations, the government has a constitutionally-mandated duty to meaningfully consult with affected communities, and to accommodate their concerns. While all three First Nations groups allege that their views were not taken into consideration, one group was also prevented from participating fully in the hearing due to financial constraints. As a result, the panel appears to have ignored the possible effects on constitutionally guaranteed aboriginal rights, traditional activities, and culture.”
“The panel’s most serious failure, however, was to make its conclusions without providing reasons. An environmental review, like any government decision-making process, needs to be transparent and accountable. Here, the panel has not explained why it found there would be ‘no adverse effects’ on aboriginal culture or the environment. It did not explain why warnings about the dangers to woodland caribou and marine bird populations were ignored, and it did not demonstrate the basis on which it determined that a large spill from the pipeline is ‘unlikely’.”
The United Nations has also commented on the federal government’s failures with respect of the duty to consult.
In a Toronto Star column, Gillian Steward, a former managing editor of the Calgary Herald, notes the May 2014 report The situation of indigenous peoples in Canada by the UN special rapporteur on the rights of Indigenous peoples James Anaya. She writes, “After holding consultations across Canada, Anaya reported that the federal government told him that the constitutional duty to consult and accommodate First Nations in connection with resource development can be met through existing processes such as environment assessments. But Anaya concluded that processes such as environmental assessments and National Energy Board hearings are not designed to address aboriginal and treaty rights.”
Anaya has commented, “There appears to be a lack of a consistent framework or policy for the implementation of this duty to consult, which is contributing to an atmosphere of contentiousness and mistrust that is conducive neither to beneficial economic development nor social peace.”
Robert Janes, a lawyer for the Gitxaala Nation, has also noted that the changes made by the Harper government in 2012 to the environmental review process has further complicated matters and added to procedural uncertainty.
The Council of Canadians supports the Gitxaala Nation and other nations pursuing legal challenges against the Northern Gateway pipeline.