Legal errors in could send Enbridge review back to drawing board

Legal errors could send Enbridge review back to drawing board

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Legal errors in could send Enbridge review back to drawing board
The 3-member Joint Review Panel for the proposed Enbridge Northern Gateway pipeline

Not even a month has pass since the federally-appointed Joint Review Panel (JRP) released its official report recommending approval of the Northern Gateway Pipeline, pending the fulfillment of 209 conditions. Yet already two separate suits have been filed against the integrity of the report, with groups requesting Cabinet delay a final decision on the pipeline project until the federal court of appeals can assess the complaints.

One of the suits, filed Friday by the Environmental Law Centre on behalf of B.C. Nature (the Federation of British Columbia Naturalists), requested the JRP’s report be declared invalid and that Cabinet halt its decision on the pipeline project until the court challenge is heard. The second suit, filed by Ecojustice on behalf of several environmental groups claims the JRP report is based on insufficient evidence and therefore fails to constitute a full environmental assessment under the law.

Chris Tollefson, B.C. Nature’s lawyer and executive director of the Environmental Law Centre at the University of Victoria, says “we have asked that the federal court make an order that no further steps be taken by any federal regulator or by Cabinet until this request is adjudicated.”

[quote]We’re confident that the federal court will make that order because we’ve raised some serious issues with the legality of the report and if the report is flawed then it can’t go to Cabinet, and it shouldn’t go to Cabinet.[/quote]

Legal errors in Enbridge review prompt challenge

B.C. Nature has identified almost a dozen legal errors that bring the legitimacy of the JRP’s recommendation into question.

“The two [errors] that we think are the most serious among those are the finding with respect to justification of serious harm to caribou and grizzly and the ruling with respect to a potential major oil spill and its consequences. We say that in both of those areas there is a glaring error that’s occurred that has to be addressed by the federal court of appeal,” Tollefson said.

A federal recovery strategy for humpack whales on the B.C. coast released in October cited potential increased oil tanker traffic as a danger to dwindling populations. The recovery strategy, released after a five-year delay, also noted the danger toxic spills posed to critical habitat.

A federal caribou recovery strategy is expected by the end of the month.

“Both those federal strategies have to be consider by the Cabinet when it ultimately rules on this [project]… For caribou this pipeline has some serious consequences and it will be interesting to see what happens when the federal strategy comes down.”

JRP hearing a “failure”

For Tollefson, the inadequacy of the official JRP report points to a failure of the Northern Gateway hearing process.

“It’s disappointing for everybody involved on the intervenor side, how this has unfolded,” he said.

[quote]The report is not only legally flawed in relation to the specific issues that we’ve raised but I think there’s a more general flaw, which is that it’s failed the test of transparency, it fails test of intelligibility. It basically doesn’t grapple with the evidence.[/quote]

The report reaches its conclusions “without setting out its analysis,” Tollefson says, “without discussing the evidence that forms the basis for those conclusions.”

“So we think there’s a basic rule of law issue here: does this report even conform with the basic requirements in terms of intelligibility and transparency that we expect from tribunals?”

“And we say that it doesn’t.”

Tollefson anticipates that the request will delay Cabinet’s 180 decision period, saying it would be “very difficult” for Cabinet to address and respond to B.C. Nature’s complaints within that timeframe.

For Tollefson a delay in Cabinet’s decision isn’t only foreseeable, it’s appropriate.

“Cabinet after all has to make its decision based upon the findings and the recommendations that arise out of this report.” Without a reliable report, what kind of decision can British Columbians expect?

The errors in the report could send the JRP back to the drawing board.

“If we’re upheld on any of our arguments, that report will have to be sent back to the JRP, redone, and we’ll basically be starting, potentially, back where we were in June. In those circumstances, it makes little sense for Cabinet to make a decision given that level of uncertainty around the future of the report.”

 This article originally appeared on DeSmog Canada.

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About Carol Linnitt

Carol Linnitt is Site Manager and Director of Research for DeSmog Canada. She joined DeSmog in June 2010 as a researcher, focusing much of her time on the natural gas industry and hydraulic fracturing. Her research focuses mostly on industry public relations, misinformation campaigns and energy development. Her work also led to the DeSmog micro-documentary CRY WOLF: An Unethical Oil Story and the Cry Wolf investigative series. Carol has a Master's in English Literature from York University where she studied political theory, natural resource conflicts, and Aboriginal rights. She is a doctoral candidate at the University of Victoria in the English and Cultural, Social and Political Thought programs.

7 thoughts on “Legal errors could send Enbridge review back to drawing board

  1. How cavalier can the Conservatives get? It their own estimation, as much as they want because they won a mandate from the “majority” of Canadians. But Steve the stud will be stretching his impotence soon’s he encounters hurdles outside the purview of the PMO. Oh, sure, he can tear up the track riding roughshod over the branches of government he can control— ministries, commissions, tribunals, boards, port authorities—even the good offices of the Governor General (re: inappropriate prorogation when Steve was still in parliamentary short pants) but he hadn’t ventured very far out of the sandbox before his looney “supremacy of parliament” bubble got burst. In Conservative theology there’s no fairy tales so true believers are practically enraptured by all those rocking horses lined up in muster before the Great Continental Divide. Cervantes would have recognized the delusion: all the obstacles to Northern Gateway Sir Steve mistakenly presumes his inferiors—the Constitution, the Supreme Court of Canada, BC First Nations and a majority of BC voters—are merely infidels to be swept away by his mighty lance. But this diorama is yet to be tested.

    Steve should remind himself the apocryphal Book of St. Steve is really a self-serving partisan piece of propaganda and that the cover illustration of him standing heroically, foot up on the slain Liberal dragon’s actually a photoshopped selfie he took after his indomitable rival had passed out from self-inflicted wounds. The fabled political acumen he’s said to possess has, in reality, abandoned him Merlin-like many times while he practiced his mettle in the relative safety of the parliamentary majority tourney— yet it certainly didn’t shine on Insite…or medical pot…or prostitution…or Robocalls…or political patronage appointees…or parliamentary contempt…or electoral fraud conviction…or Attawapiskat…windmills all, none, in retrospect, worth the tilting.

    In minority, the Conservatives had the lowest legislative productivity on record, the safest way of keeping a lid on some of their more embarrassing caucus members—the jet-setters who accidentally leave classified documents at their moll’s flat, the babysitter jumpers who accuse partisan rivals of being child pornographers, the low-brow heli-fishermen whose only qualification for cabinet is duplicity, to name but a few. Once in power, though, it was time to get busy with omnibus bills, gutting services, destroying scientific info they disagree with and generally employing knee-to-groin tactics—all stuff not very endearing to the electorate—which seems kinda counterintuitive when you think of all the shit Harper’s record will dump on the Conservatives’ re-election chances only a bit more than a year hence—not to mention the circumstantial disadvantages of not being able to repeat a default win now that Iggy’s gone—and not being able to cheat with impunity like last time.

    I suspect the reason for this is the timeliness factor: the first minority was intended to lull voters but the second was supposed to be a majority with which to ram through unpopular stuff like Northern Gateway; having to wait for a third mandate served only to accumulate baggage all long-reining parties inevitably do—Harper’s being somewhat more perfidious that others—and resulted in delays of major consequence.

    Thus the Don Quixote of the neo-right looks west from the summit of the Rockies, over a sea of countless peaks stretching into the distant sunset, each representing a potential lawsuit and more, the vanquishing of which will take more time than the mandate, probably his last, has remaining.

    Take another selfie, Steve—the real, tough part’s just beginning.

    1. I totally agree with your comments here Mr. Godfrey!! I am not dropping the ball on this issue for one moment! Way too much at stake here!!

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