Opponents of Enbridge Inc.’s proposed Northern Gateway crude oil pipeline are vowing to ramp up their legal challenge to the politically charged project if Canada lives up to expectations and approves its construction.
With a deadline looming today, Prime Minister Stephen Harper’s government appears ready to bless the $7.9-billion project despite fierce resistance from aboriginals and environmental groups.
The pipeline would carry 525,000 barrels of crude a day from Alberta’s landlocked oil sands to the Pacific Coast for export. While its capacity would represent a fraction of the 2.5 million barrels that flow each day to Canada’s largest customer, the United States, Ottawa sees market diversification as crucial to the industry’s long-term health and Canada’s economic future.
But Harper may not have the final say. Approval will set the stage for a flood of lawsuits by opponents intent on stopping what they view as an environmental disaster in the making. A wave of protest marches and road blockages is also likely.
“We’ve been putting together a number of legal strategies,” said Art Sterritt, head of the Coastal First Nations, an alliance of aboriginal groups in British Columbia. “The federal government will get a lesson in democracy if they try to bully their way through this province.”
Litigation could hold up development for years, frustrating efforts by Canada’s energy industry to ease its reliance on the United States, where a second pipeline project, Keystone XL, is also in jeopardy.
Even so, experts say lawsuits alone are unlikely to kill the project. As a best-case scenario, litigants may buy more time.
“With the challenges we are likely to see . . . the best-case outcome for the First Nation litigants is having the matter sent back for further consultation and accommodation, essentially a delay of the project,” said Gordon Christie, an aboriginal law expert at the University of British Columbia.
Politics in B.C. could also hold up Northern Gateway, especially if opponents manage to put a referendum on the ballot. Such a vote, while nonbinding, could expose a lack of public support, making it politically difficult for the provincial government to allow the project to proceed.
Late last year, a federal regulatory panel recommended the Canadian government approve Northern Gateway despite a massive effort by First Nations and environmentalists to persuade the committee to take their side.
The recommendation resulted in five lawsuits, which the courts have put on hold until after the federal government’s final decision, in order to allow for more potential claims. Opponents will likely file injunctions to halt work on the project until all legal actions are resolved.
While Canada’s final decision is still pending, Greg Rickford, the federal resources minister, praised the regulator on Monday, saying the government is proud of its work. “Their decisions are driven by science and facts,” he said.
After the government ruling, any new claimants will have to file within 15 to 30 days. The Federal Court of Appeal will then decide how to proceed with the cases, and the timetable for those hearings will depend on the number of cases and the complexity of each, said Karen Campbell, a lawyer at EcoJustice, whose clients are behind one of the existing lawsuits.
Experts say the process is likely to take at least a year, and some cases could end up at the Supreme Court of Canada, further delaying the outcome.
The five existing lawsuits, which seek to quash the regulatory panel’s recommendation, focus on the shortcomings of documents studied by the panel and what the plaintiffs say is a lack of meaningful consultation with aboriginals.
Future cases will likely argue that the panel’s report was deficient, making it illegal for the federal cabinet to approve the project, experts say.
If the court agrees with that argument, it could send the project back to the panel to reconsider the evidence and demand further consultation with aboriginal communities whose territory is in the pipeline’s proposed path.
“In general, meaningful consultation means entering in the process with the expectation that you may have to change your project,” said Julie Abouchar, a partner at Willms & Shier, an environmental law firm in Toronto.
B.C., which stands to derive just a fraction of the economic benefit of the pipeline while assuming much of the environmental risk, could also play a role in stalling the project by refusing to issue certain construction permits.
The province is officially opposed to Northern Gateway and Premier Christy Clark has set out five conditions that all oil pipelines in the province must meet, including world-class spill response and a bigger slice of economic benefits. There are about 60 permits the province must issue for construction, giving it some leeway to control the project.
Experts say Clark is unlikely to go back on her word, despite pressure from Alberta and the federal government. Still, opponents are readying a ballot initiative. In a similar, nonbinding vote held in the coastal town of Kitimat, which would be Northern Gateway’s terminus, 58.4 per cent of residents said “no” to the pipeline and 41.6 per cent said “yes.”
