Federal Court of Appeal Quashes Northern Gateway Pipeline Certificates for Failure to Consult Aboriginal Peoples

The Federal Court of Appeal quashed two Certificates of Public Convenience and Necessity issued for the Enbridge Northern Gateway Pipeline in a 2-1 decision delivered on June 23, 2016. The Certificates are required under the National Energy Board Act for Northern Gateway to begin construction of the pipeline.

The proposed pipeline would run approximately 1,177 km delivering an average of 525,000 barrels of oil per day from Bruderheim, Alberta across northern British Columbia to the deep-water port of Kitimat. The National Energy Board (NEB) originally issued Certificates approving the pipeline project in June 2014 following the decision of the Governor in Council. However, several coastal First Nations groups and non-profit environmental organizations promptly brought applications challenging the decision.

Justices Dawson and Stratas, writing for the majority, found that the federal government failed in its constitutional duty to consult Aboriginal peoples before the Governor in Council directed the NEB to issue the Certificates. The court found that the federal government offered only a "brief, hurried and inadequate" opportunity to exchange and discuss information and dialogue after the Report of the Joint Review Panel was issued prior to the Governor in Council's decision.

The court ordered that the decision be remitted back to the Governor in Council for redetermination, and that new Certificates not be issued on such redetermination until the federal government fulfills its duty to consult with Aboriginal peoples. The court advised that the required consultation remaining "need not take long" if it is "well-organized and well-executed."

Whether or not the current federal government will undertake such a process is uncertain. The Globe and Mail reported that Prime Minister Trudeau is "[opposed] to running an oil pipeline through British Columbia's Great Bear Rainforest - which is the route proposed for Northern Gateway - and has promised to impose a ban on crude tanker traffic in coastal waters that would provide access to the proposed export terminal in Kitimat, B.C."

Justice Ryer dissented from the majority's decision on the basis that Canada did fulfil its duty to consult in the circumstances of the case.

Northern Gateway has until August 22, 2016 to apply for leave to appeal to the Supreme Court of Cananda. However, on June 30, 2016, in a press release responding to the judgment, Northern Gateway gave no indication of its intention to appeal the decision. Instead, Northern Gateway expressed its commitment to building the pipeline while at the same time "protecting the environment and the traditional way of life of First Nations and Métis peoples and communities along the project route." As mentioned in a previous post, Northern Gateway was already in the process of requesting a three-year extension of the original Certificates from the NEB, which were set to expire on December 31, 2016.