Important victory in ongoing Northern Gateway struggle

The BC government must now make its own decision about a proposed pipeline project that it has publicly claimed to oppose.

In a significant victory for Indigenous rights, the BC Supreme Court ruled yesterday that the provincial government “abdicated” its Constitutional obligations by giving up provincial authority to impose conditions on the proposed Northern Gateway pipeline. Without such authority the province could not meaningfully accommodate the rights of affected First Nations, even on issues that the BC itself had conceded were serious concerns.

The court ruled that BC must now consult with First Nations about the potential impacts of Northern Gateway “on areas of provincial jurisdiction”  and “how those impacts are to be addressed in a manner consistent with the honour of the Crown and reconciliation.”

The decision does not affect the project approval granted by the federal government – which is the subject of a separate as yet unresolved legal challenge.

And it leaves unanswered the question of what kinds of conditions the province could potentially impose on the project – and whether it could block the project entirely – without overstepping its own jurisdiction.

During the environmental assessment of Northern Gateway, the provincial government said that it was opposed to the pipeline because of concerns about oil spills in the coastal waterways and the capacity to respond to such spills. By that point, however, the province had already entered into an agreement giving the National Energy Board exclusive decision-making power over a number of proposed inter-provincial pipelines, including Northern Gateway, knowing that the federal government was stronglyh in favour of such projects.

The BC Supreme Court decision struck down parts of that agreement, so that the province must now make its own decision on Northern Gateway, after first consulting and accommodating First Nations.

The successful legal challenge was initiated by the Gitga’at First Nation and the Coastal First Nations, an alliance of First Nations on the north and central coast of BC and Haida Gwaii, who were concerned about the potential for tanker spills, among other harmful impacts of the proposed oil sands pipeline.

In a public statement issued in response to the ruling, Chief Marilyn Slett, President of the Coastal First Nations called the decision “an important victory for our communities” and “ another hurdle  to the Enbridge Northern Gateway pipeline.” She said. “It means the province must now sit down with First Nation communities across BC and find ways to address the severe and irreversible impacts of this project.”

Amnesty International has opposed the Northern Gateway pipeline because international human rights standard require the free, prior and informed consent for Indigenous peoples for any project that poses such serious risks to their cultures, identities and livelihoods. Free, prior and informed consent is an expression both of Indigenous peoples’ own jurisdiction over their own lands and waters and basic safeguard responding to the long history of violation of Indigenous peoples’ rights. Such consent clearly does not exist in this case.