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Gitga'at B.C. Supreme Court decision: Another legal earthquake for oil pipelines

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Another bad day for Big Oil, another really good day for No Tankers supporters. Enbridge and Kinder Morgan's already torturous path to push unwanted pipelines through British Columbia was hit with another existential earthquake yesterday when the B.C. Supreme Court ruled the "one review / one decision" approval process was invalid and failed to adequately consult and accommodate affected First Nations.

This is another nail in the coffin for not one, but two West Coast oil tanker proposals Big Oil has planned for B.C. For Enbridge it means the Harper government approval (with 209 conditions) does not give them a green light and their already comatose project will now require a separate provincial approval. That decision would fall to a government that has already gone on record saying that the project as proposed was inadequate to address provincial concerns -- and only after a process to thoroughly consult and accommodate the affected First Nations, who are also vociferously opposed.

For Kinder Morgan, it means the already suspect NEB review process is likely fatally wounded before it's even completed.

Yesterday's Supreme Court ruling results from a challenge by Coastal First Nations (an alliance of First Nations on British Columbia's north and central coast and Haida Gwaii), as well as the Gitga'at Nation. The case dealt with the 2010 Equivalency Agreement, whereby the B.C. government voluntarily signed away its authority to assess and approve major projects to the federal government in Ottawa.

After the Harper government approved Enbridge's pipeline and oil tanker proposal CFN and the Gitga'at sued, arguing that the B.C. government illegally abdicated its authority to approve these projects, as well the duty to consult them. The court agreed, rejecting Enbridge's argument that the matter was entirely under federal jurisdiction and therefore any flaws in the Equivalency Agreement were irrelevant. The Supreme Court accepted the provincial government's argument that it had the authority to delegate the assessment process to the feds, but ruled that this couldn't be extended to relinquishing the final approval.

The Court's reasoning provides strong vindication for Dogwood Initiative's "Let B.C. Vote" campaign, acknowledging that "in order for the Project to proceed, the Province will have to issue approximately 60 permits, licences and authorizations." Later, the Court acknowledges that B.C. has the authority to attach additional conditions to the project, giving further ammunition to Dogwood Initiative's plan to launch a citizens' initiative if our elected officials don't stand up to defend B.C.

The Judge ruled, "British Columbia, within its own jurisdiction, has unique objectives, political and social goals, and legal obligations. If the Province had no discretion with regard to any project that fell within the scope of the Agreement then it would no longer have any means by which to obtain its objectives including, as mentioned above "ensuring that project development is consistent with the demanding standards this government has set for itself in protecting the environment… [Therefore] I find the Agreement invalid to the extent it removes the need for the Ministers to exercise [approval authority] pursuant to s. 17 of the EAA."

After finding that the Equivalency Agreement was invalid to the extent it relinquished independent approval authority, the Court turned to whether the Province acted honourably with the affected First Nations. After discussing at length the importance of B.C.'s official intervenor submission (in which the province decided not to support the project because of unmitigated oil spill risks), the Court determined the province "breached the honour of the Crown by failing to consult with the CFN, and the Gitga'at specifically, prior to deciding not to terminate the Agreement."

Interestingly, the Court determined the Crown had two decision points where its obligations to First Nation were triggered:

  1. After it was aware that oil spills were a significant risk and Enbridge's oil spill plans were inadequate, but before it made a decision not to withdraw from the Equivalency Agreement in June 2014;
  2. When it decided to accept the federal decision -- and not render an independent approval pursuant to provincial laws.

This first finding is huge, because it directly parallels what has happened in the last few days with Kinder Morgan.

The relevant facts from Enbridge are eerily similar for Kinder Morgan:

  • Affected First Nations oppose the project;
  • B.C. abdicated its approval and assessment responsibilities through the same Equivalency Agreement;
  • The Province opposed the project at the National Energy Board, determining the risk of spills was unmitigated; and
  • B.C. hasn't yet consulted First Nations about whether to withdraw from the equivalency agreement or not.

So what does this all mean?

Firstly, we've said it over and over but Enbridge's Northern Gateway proposal is Even More Dead. With another 18 lawsuits pending, 209 conditions unfulfilled, all four levels of government and a majority of British Columbians opposed, a legislated tanker ban in the works, no firm commercial contracts locking in oil to supply the pipeline, and now the need to reboot a provincial approval process with affected First Nations in the driver's seat, Enbridge will be unable to keep up its charade much longer.

The outlook for Kinder Morgan isn't much better. All the relevant criteria the Court used to invalidate Enbridge's approval also exist for their controversial project: B.C. chose not to withdraw from the Equivalency Agreement in December when they had a chance and didn't consult with affected First Nations before making that decision. Plus just last Monday the Province made public its official position on Kinder Morgan, opposing the project because the Texas-based proponent "failed to provide the NEB with an adequate plan to prevent or respond to an oil spill."

Dogwood Initiative and others involved in the umbrella group Organizing for Change presaged this conundrum last fall when we called on the province to abandon the Equivalency Agreement and launch its own review of Kinder Morgan, in partnership with First Nations. Today's decision puts some real power behind that request.

For Dogwood supporters tired of playing whack-a-mole with ill-advised West Coast oil tanker projects, First Nations litigation and the citizens' initiative tactic just got a big dose of adrenaline. For Big Oil proponents, Kinder Morgan is setting itself up for a very similar court case. To use one of my favourite expressions, it looks like Kinder Morgan will be déjà vu all over again.

Another bad day for Big Oil, another good day for First Nations and No Tankers supporters right across the country.

Will Horter is the Executive Director of the Dogwood Initiative.

This article originally appeared at dogwoodinitiative.org.

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