Preferred outcome – Enbridge invalid

Photo courtesy of Lalaxaaygans (Terri-Lynn Williams-Davidson)

ENB

The next hurdle in the ongoing effort to defend the lands and waters around Haida Gwaii and across the north from supertankers and oil pipelines is just around the corner.

This October the Haida, Gitga’at, Gitxaala, Heiltsuk and Kitasoo/Xai’Xais nations, along with the Nadleh Whut’en, Nak’azdli Whut’en, BC Nature, Forest Ethics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation and Unifor will be taking Canada to court.

Over three days, the Federal Court of Appeal will hear arguments challenging the federal cabinet’s acceptance of the Joint Review Panel’s (JRP) approval of Enbridge’s Northern Gateway project – the respondents will have the following three days to present their arguments. 

There is no deadline for the court to render its decision following these hearings, although it is assumed there will be a determination in early 2016. 

The applicants are presenting arguments that include: infringement of aboriginal title and rights; breaches of the duty to consult and accommodate; effects on wildlife; inadequate evaluation of the public interest, and; inadequate evaluation and response to risks and impacts.

Following the hearing the court will either decide in favour of the applicants and declare cabinet’s approval ‘invalid’, or, it will decide that federal cabinet’s acceptance of the Northern Gateway JRP approval is ‘valid’. 

If the court decides that the cabinet’s approval was ‘invalid’, it will provide remedies that are enforceable by the court. 

If the court decides the cabinet’s approval was ‘valid’, the applicants can apply to appeal the decision and if that application is accepted, that case will go to the Supreme Court of Canada. 

The best possible outcome will be that the JRP decision and/or the cabinet’s approval is considered ‘invalid’ and the court provides remedies that uphold the applicants’ arguments. This ruling will send Canada and Enbridge back to the drawing board, seriously delaying the project, possibly making it unviable.

West Coast Environmental Law has a paper summarizing the arguments presented in this case. The summary is available online at wcel.org

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