Last year, Justice Abella of the Supreme Court of Canada gave a lecture at the University of Victoria. Wearing a suit and pink tie, she recounted stories and lessons from her 40 years at the Bar. She was funny, inspirational and made herself available to chat and take pictures with the law students who lined up to meet her.
I only heard about this talk – I did not attend it. I thought I was too busy and I went home instead and did my readings for the next day. As a result, I missed an invaluable chance to meet one of Canada’s most esteemed judges. So, when an opportunity arose to watch the final day of the challenge brought by eight first nations, four environmental groups, and one labour union against the approval Enbridge’s Northern Gateway Pipeline, I took it.
Because of the size of the hearings, a separate courtroom with a closed circuit television was converted into a viewing room. Despite being the last of six days of hearings, the room was packed to hear the final replies of both the applicants and respondents (you can find ELC Articling Student Erin Gray’s blogs on the earlier submissions here!). Although the viewing room was separated from the real action in the courtroom, it was still an exciting environment. Observers could chat, comment on the proceedings and even laugh without fear of reprimand.
First up was the Canadian Association of Petroleum Producers (CAPP), who were responsible for submitting on whether or not Northern Gateway is in the ‘public interest,’ as required for its approval. Counsel for CAPP began by noting that although CAPP’s mandate is to represent the oil and gas industry, their interests are not always on the side of pipeline development (causing many raised eyebrows in the observation room). Counsel for CAPP then went on to describe how every opportunity was made by the JRP to consider public input and evidence on the impacts of the project. This submission was followed by a second CAPP lawyer who noted that the determination of public interest was a subjective, not objective task, which had been fulfilled by the JRP. However, his submission was cut short by the bench because the lawyer had strayed too far from the topic on which the Court allowed CAPP to intervene in his hearing. His submissions did not address the issue of whether the public interest criterion was met – which CAPP had promised it would do.
After a brief submission by counsel for the National Energy Board (NEB), the applicants were given one hour to reply to arguments raised by the respondents over the course of the hearings. Robert Janes, counsel for Gixtaala First Nation, presented first.
Robert began by challenging an argument made by Northern Gateway that the pipeline represented a “national transportation infrastructure project” akin to the construction of the Canadian Pacific Railway. In response, he argued that the analogy to the Canadian Pacific Railway failed to appreciate the greatest lesson of the history of that project. In building the railway, Canada sought the consent of individual First Nations through the negotiation and signing of treaties. In British Columbia, the treaty process broke down and First Nations never gave consent to the taking up of their lands. Robert argued that it would be anomalous to accept Northern Gateway’s argument on the unfair burden of cancelling pipeline approval when First Nations in British Columbia have been waiting since 1846 for the recognition of their Aboriginal rights and title.
Next up, Barry Robinson, counsel for three environmental groups (ForestEthics Advocacy, Raincoast Conservation, and Living Oceans Society) responded to Northern Gateway’s claims that the Humpback Whale (listed under the Species At Risk Act, “SARA”) would be protected by their marine protection plan. Robinson argued that relying on Northern Gateway’s Marine Protection plan was insufficient to meet the statutory requirements under SARA.
Former ELC Executive Director Chris Tollefson, acting as counsel for BC Nature, argued that the JRP failed to apply mandatory terms of the Canadian Environmental Assessment Act, 2012 (CEAA 2012) regarding mitigation measures. In particular, he said that having found that a large oil spill would cause serious adverse environmental effects, it was incumbent on the JRP to identify potential mitigation measures and consider whether they were capable of reducing these effects below the significance threshold.
Chris also responded to Northern Gateway’s late arguments that BC Nature failed to meet the legal test for standing. He maintained that regardless of which test was applied, BC Nature met the requirements for standing. He said that BC Nature met the test for public interest standing and that it is “directly affected” because this Project may have negative impacts on BC Nature’s management of Important Bird Areas along the tanker route. He also argued that Northern Gateway should have raised its standing challenge earlier in the proceeding, prior to the order that consolidated BC Nature’s two lawsuits with another sixteen lawsuits brought by eight other parties. To raise such a challenge now, he said, was inefficient and would create serious and potentially unresolvable evidentiary and procedural complications given the manner in which the suits had been consolidated. He told the court that to erect new barriers to standing, as suggested by Northern Gateway, would limit the ability of public interest groups to engage in litigation, a critical element of the democratic process.
Justice Dawson then concluded the day by thanking all the lawyers for their professionalism and for aiding the efficiency of the hearings by collaborating together on their submissions.
As everyone flowed out of the courtrooms to the lobby of the Pacific Centre, the relief and excitement in the room was palpable. The completion of the hearings alone is something to celebrate. In their submissions to the Federal Court of Appeal, the applicants had a forum to demonstrate to the world and get on record the absence of social license in the approval of the Northern Gateway Pipeline and the disregard towards constitutionally protected Aboriginal rights and title. While it will likely be months before the judges make their decision, the commitment and passion shown by the applicants left me feeling optimistic.
Rachel Gutman is a 2nd year UVic Law student enrolled in the Environmental Law Centre Clinic Intensive Program (2015-16). She is also a Student Executive Board member of the ELC Society.
For more information on the Northern Gateway Hearings, including background of the case, summaries of the case and an explanation of some of the arguments, see:
- Northern Gateway Hearing, Day 1: An Articled Law Student’s Perspective.
- Northern Gateway Hearing, Day 2: An Articled Law Student’s Perspective
- Northern Gateway Hearing Day 3: Nature has its Say
- Northern Gateway Hearing Days 4-5: An Articled Law Student’s Perspective
- ELC appears in historic Northern Gateway Appeal