First Nations win court challenge against B.C. over Enbridge pipeline

The B.C. Supreme Court has ruled the B.C. government breached its duty to consult the Gitga'at and neighbouring First Nations on the Enbridge Northern Gateway pipeline. The decision, announced Wednesday, is seen as a major victory for First Nations that could have an impact on future oil pipeline projects.

Coastal First Nations took the B.C. government to court in January 2015 in a bid to strike down an agreement that gave Ottawa decision-making authority over the Enbridge Northern Gateway pipeline project. In June 2010, the B.C. Liberals signed an "equivalency agreement" with Ottawa, which effectively gave the federal National Energy Board final say over the environmental assessment process for five projects including the Enbridge Northern Gateway and Kinder Morgan Trans Mountain pipeline expansion.

"I don't think we could be happier. This is a landmark decision," said former Coastal First Nations executive director Art Sterritt, who said he and others were "pretty confident" about the odds of winning the case.

"Coastal First Nations brought this to the attention of the province before Northern Gateway was approved by the National Energy Board. We said, 'hold on here, you can't make a decision that affects our lives without talking to us first.'... So basically Northern Gateway is back where they started 10 years ago."

Coastal First Nations lawyer Joseph Arvay said the ruling effectively nullified the federal government's initial approval of the Enbridge Northern Gateway pipeline.

"What it means is, Enbridge now has to come back and get the (environmental) certificate from British Columbia," he said. "The ruling said the B.C. government abdicated its duty to conduct an environmental assessment, and its duty to consult with and accommodate First Nations."

As for whether the B.C. government could appeal the decision, he said the Clark government should be "loathe to appeal," because the decision actually confirms British Columbia's legal right and constitutional power to weigh in on major energy projects.

"The Court held that the Equivalency Agreement is invalid to the extent that British Columbia relies on the decision of the National Energy Board in relation to the Northern Gateway project," B.C. Justice Minister Suzanne Anton said in a statement. “My officials will need to take time to review the decision and government will have more to say in due course."

"I find that there has been a breach of the Province's duty to consult, and thus the honour of the Crown, by the failure of the Province to consult with the petitioners prior to June 2014," wrote Justice Koenigsberg in her ruling, noting that despite the B.C. government's argument that it had "given up nothing that impacts adversely upon the petitioners' exercise of their Aboriginal rights," its submission contained fundamental flaws. She wrote that the equivalency agreement was "invalid" to the extent it removes the need for ministers to exercise their discretion relating to the B.C. Environmental Assessment Act.

"This is a huge victory and has major implications for Kinder Morgan's Trans Mountain pipeline expansion," ForestEthics' Sven Biggs said. "Clearly, the message is that the province can't cede its decision-making powers and consultation of First Nations to the federal government. And why did the province cede its decision making powers (in 2010) for the rest of British Columbians? I'd be interested to see what this means for Kinder Morgan, because the equivalency agreement was also used for that project as well."

Judge Koenigsberg Re Coastal First Nations v British Columbia (Environment) 01-13