Both the public statements and the actions of Canada’s federal government have served to undermine the independence and integrity of the ongoing review of the proposed Northern Gateway pipeline.
Neither government ministers nor the prime minister have been shy about asserting that the pipeline is to be built regardless of the concerns of local residents and aboriginal groups and regardless of how it would put their climate change targets even further out of reach.
The implementation bill for the latest federal budget would also give cabinet the authority to overrule the National Energy Board and build the pipeline regardless of what they decide.
In the short term, these government actions may seem to improve the odds that the pipeline will be built. One significant consideration, however, is how the courts will respond to this bullying. In the event that aboriginal opposition to the pipeline is ignored by the government, it seems virtually certain that First Nations groups will go to the court to seek an order to block construction. The more the government undermines the legitimacy of the environmental assessment process, the more likely it is that judges will rule that the government has behaved improperly and the higher the odds the pipeline will be blocked by judicial means.
Energy board review process under fire Giving cabinet the power to overturn any future NEB rulings undermines credibility of entire system, critics charge
The federal government’s insistence that cabinet should have final say over resource projects such as Enbridge Inc.’s Northern Gateway pipeline is stirring opposition that could undermine its effort to streamline environmental approvals.
First nations groups in British Columbia are poised to launch legal challenges if the government intervenes in the ongoing National Energy Board review of the Gateway project through legislation now before the House of Commons.
And critics say the Conservative government is politicizing the entire review process by giving cabinet the power to overturn any future NEB ruling that blocks a resource development on environmental grounds.
The overhaul could in fact create more challenges for companies looking for certainty in the environmental review process as opponents seek redress from the courts or turn to civil disobedience, said Judy Tanguay, a former director-general for oil and gas at the Indian Affairs and Northern Development.
“It’s important that at the end of it – whether you agree with the decision or not – you feel it has been a legitimate process with an impartial hearing of your views and concerns,” Ms. Tanguay said.
She added that the government has tainted the review of the proposed Gateway pipeline, which would carry 500,000 barrels per day of oil sands bitumen to Kitimat, B.C., to be exported by supertanker to Asia.
“The whole process has been delegitimized. We know what the decision will be; [Prime Minister Stephen] Harper has made it clear that he desperately wants this project to proceed.” The retired bureaucrat – who worked on the lengthy Mackenzie Gas Project – has written letters to federal Natural Resources Minister Joe Oliver, Alberta Premier Alison Redford and industry associations, condemning the loss of independence for the National Energy Board, while acknowledging the need to streamline an often cumbersome process.
A key element to achieve that end is a clear public policy framework that provides consistency and transparency. The absence of private and public sector leadership, however, is a serious impediment. …
To begin, however, the constitutional obligation to consult with first nations is not a corporate obligation. It is the federal government’s responsibility.
Second, the obligation to define an ocean management regime for terminals and shipping on the west coast is not a corporate responsibility. It is the federal government’s responsibility.
Finally, these issues cannot be resolved by regulatory fiat – they require negotiation. The real risk is not regulatory rejection but regulatory approval, undermined by subsequent legal challenges and the absence of “social license†to operate.