Today I watched what I know will be a part of a historically significant event – years of preparation have led to what will take place during the next week in downtown Vancouver.
Let me explain how we got here.
A Joint Review Panel (JRP) was constituted in 2010 to review the proposed Northern Gateway pipeline project, a twinned pipeline project that would carry diluted bitumen from Alberta’s oilsands to BC’s Coast and condensate (to dilute the bitumen) back to Alberta. After an extensive hearing process, the JRP produced a report in December 2013 that recommended approving the project, subject to 209 conditions. Federal Cabinet had six months to consider the recommendation and decide whether the project was “in the public interest.” In June 2014, they made an order approving the project with the conditions.
A number of groups are challenging the decision in the Federal Court of Appeal. In all, 18 separate actions have been joined together into the longest case the Court has ever heard. During the six full hearing days, each applicant, respondent and intervenor (a third party with an interest and useful information for the court) will make an argument, which supplements previously submitted written arguments. Applicants have a chance to reply at the end. No evidence is given (no witnesses, no new studies or documents provided to the court). The three-judge federal court panel will rely on evidence the decision-makers had in front of them at the time in their review of the decision being challenged. This means no dramatic cross-examination… though the judges had lots of questions that at times seemed to arrive in rapid-fire succession. But more on that in a minute… let me go chronologically through the day.
The Environmental Law Centre is representing BC Nature, a group of British Columbia Naturalists who have been involved since the beginning of the hearings. However, we’re not up until Monday morning… first up are the First Nation applicants.
The day started with an 8am press conference at UBC Robson Square held by the #UnitedAgainstEnbridge team (an initiative of Pull Together, which is a joint effort by Sierra Club BC and RAVEN Trust). First Nations leaders were drummed into the conference, which despite the early hour, was well attended by media and supporters. All the leaders expressed their Nation’s opposition to the project and their commitment to ensuring it does not go through as planned. A few comments about the project and the court challenge were particularly impactful:
“[This] is a big challenge, but it’s one we are going to win.”
“These areas [that would be impacted by the project] were entrusted to us by our Creator.”
“We have a responsibility to our children.”
The frequency with which future generations and their interests was brought up was particularly inspiring.
The Vancouver sessions of the Federal Court of Appeal are conducted in an office building downtown – not quite the grand courthouse one would expect for a case of this magnitude (or not what I expected anyway). We were ushered to elevators in large groups and went through full security before entering the “viewing room” (the actual courtroom was too small to even accommodate all of the applicants’ 39 lawyers). Despite viewing the proceedings on a projected screen, the room was silent and in full concentration. The magnitude of this case is lost on no one. The room was filled with many members of the applicant First Nations, including several Elders, and held a feeling of optimism and positive energy.
When the clerk announced the case and introduced the parties and their counsel, it was a who’s who of BC Aboriginal law and environmental lawyers – the years of experience and incredible knowledge of this collective group is remarkable.
First up was the Haisla Nation, represented by Jennifer Griffith. Her oral argument focused on fundamental Aboriginal law issues, including the Crown’s duty to consult First Nations when a contemplated Crown action may impact the Nation’s Aboriginal rights or title (in this case the approval of this project is the Crown action). She outlined why the Haisla are owed a high, or deep, level of consultation due to their strong claim to Aboriginal title. She asserted that there was inadequate consultation – that the consultation engaged in was largely procedural and failed to address the Haisla’s substantive concerns (relating to the risk of an oil spill on their traditional activities). She described the federal government’s deferral of consultation to a later stage (presumably at the stage of implementing the conditions of approval) as unacceptable. Ms. Griffith analogized the situation at hand with that in the Haida case, where the issuance of tree farm licenses on Haida territory was challenged – in that case, the Supreme Court of Canada (SCC) found that consultation should have occurred before the strategic decision (issuing the tree farm license) from which subsequent decisions would flow. She argued that the Haisla should not have to rely on future consultation when “momentum” has developed (like part of the pipeline already being built…)
Next was the Haida Nation, represented by Terri-Lynn Williams-Davidson, a citizen of the Haida and their General Counsel. She spoke of the Haida’s deep connection to the land and chronicled the agreements made between the Haida and the British Columbia and federal governments – and specifically the Archipelago Management Board (AMB), comprised of representatives from the federal government and the Haida and created to manage the operations of the Gwaii Haanas National Park Reserve (on the island of Haida Gwaii). She asserted that the AMB should have been included in the JRP’s hearing process, and despite requests from the Haida, was not. When asked if her Nation had heightened rights as compared with other First Nations (presumably due to these agreements), she responded with a resolute “yes.” Near the end of her submission, she told a very topical Haida story relating to greed and it leading to a lack of perspective. As a very short summary, a raven became greedy and took one eye from each of the people in a village. Ms. Williams-Davidson said the Haida recounted this story as evidence in the JRP hearings with a warning that they did not want to become “one-eyed people.”
A lunchtime rally, also organized by the #UnitedAgainstEnbridge team, was lively and well attended, and by the end of the lunch break had grown to approximately 400 people. It remained peaceful and positive and in part sought to express support for the First Nation applicants who have sacrificed so much to get to this point in the process.
Photo of the Rally, Vancouver, BC / Coast Salish territory — October 1, 2015
After the break, the Kitasoo Xai‘xaix and Heiltsuk were up and were represented by Lisa Fong. She focused on the lack of scientific evidence that was submitted during the hearing process, especially as it related to herring and herring stock – herring being a keystone cultural species for the Heiltsuk. She argued that a risk of an oil spill is sufficient to constitute infringement of her clients’ Aboriginal rights – and that the risk does not have to have materialized in order for it to be infringement. Though she said that Northern Gateway said the possibility of a spill is “vanishingly small,” Ms. Fong explained that if expressed in terms of probability, the risk of a spill is actually18%. She described the issue of at what point a potential large oil spill becomes an infringement on an Aboriginal group’s rights, and analogized it to a Supreme Court of Canada tort law case where it was found that prior to a medical procedure, a doctor has a duty to warn a patient of risks that are only a mere possibility, if those risks would be serious (Riebl v Hughes,  2 SCR 880). She explained that any infringement of an Aboriginal right must be justified, and that in this case, the Crown did not meet the legal test for justification.
This was my first time watching a court hearing at the federal level and I was struck by the engagement of the Bench: the judges asked many questions that indicated they were interested in the minute details of the applicants’ case. There was a focus on the possibility of ongoing consultation, and whether the Nations were “front-loading” all the constitutionally required consultation to the beginning of the process – specifically prior to the ultimate public interest determination by the GIC. The applicant counsel responded by citing the Haida case ( 3 S.C.R. 511). The judges also questioned whether the applicants were arguing for a “veto” over the project. They responded by re-asserting that there was inadequate consultation – no veto is required, but rather a good faith effort to consult and accommodate was necessary.
By the mid-afternoon, the audience in the overflow room was getting more comfortable – and judging by the chuckling at key points in the applicants’ submission (which may not have been intended to be humorous), most of the audience in the viewing room was there in support of the applicants.
At the end of Day 1, I’m feeling inspired and grateful. At the lunchtime rally, the Gitxaala Nation said: “We’re not just here for us, we’re here for everyone.”
In response to this powerful statement, I would like to say – thank you.
Erin Gray is an Articled Student at the Environmental Law Centre