Coastal First Nations—Great Bear Initiative Society and the Gitga'at First Nation are celebrating a major court victory over the B.C. government and the company behind the proposed Northern Gateway pipeline. And it's led one major First Nations figure in the fight, Art Sterritt, to declare that it means the project is "dead".
B.C. Supreme Court Justice M. Marvyn Koenigsberg ruled that the province "breached the honour of the Crown".
This came as a result of failing to consult with Coastal First Nations and the Gitga'at when it granted the National Energy Board sole jurisdiction over an environmental assessment decision.
Justice Koenigsberg's reasons for judgment declared that the "equivalency agreement between the provincial and federal governments is "invalid". That agreement had removed the need for the B.C. Environmental Assessment Office to provide an environmental-assessment certificate.
“This is a huge victory that affirms the provincial government’s duty to consult with and accommodate First Nations and to exercise its decision-making power on major pipeline projects,” Arnold Clifton, chief councillor of the Gitga’at First Nation, said in a news release.
Sterritt, a member of the Gitga'at, went even further in the same release.
“The province has been talking a lot about its opposition to oil pipelines in recent days,” he said. “Now it must put its money where its mouth is and apply the same rigorous standards it advocated for during the Joint Review Panel process, while consulting with every single First Nation who would be affected by this project. We’ve said it before: the Enbridge Northern Gateway pipeline is dead.”
The petitioners successfully argued that the province has a constitutional obligation to consult with First Nations before engaging in actions that could have a detrimental impact on indigenous rights. The First Nations noted in their submission that the province had made submissions to the Joint Review Panel about the potential impact of spills on their "claimed land rights".
In addition, the province had raised concerns before the Joint Review Panel about the adequacy of spill responses on land and water, as well as the amount of information provided by the project proponent, Northern Gateway Pipelines Inc. It's a subsidiary of Enbridge.
Koenigsberg's ruling noted that the province "did not consult" with the petitioners between December 2013 and June 2014. In fact, the judge noted, the Crown "did not respond to two letters" sent by Coastal First Nations seeking consultation during that period.
"Consultation does not mean explaining, however fulsome, however respectfully, what actions the government is going to take that may or may not ameliorate potential adverse effects," Koenigsberg wrote. "Such a means of dealing with the admittedly difficult issue looks very like 'we know best and have your best interests at heart'. First Nations, based on past experience, quite rightly are distrustful and offended at such an approach."