Anyone who doubts Enbridge and the federal government face a tough battle ahead in the courts might want to read a decision handed down June 4 in B.C. Supreme Court.
The case pitted the Squamish Nation against Whistler and the provincial government, which approved the resort municipality’s Official Community Plan despite the First Nation’s concern its economic development aspirations there would be unreasonably constrained.
B.C. Supreme Court Justice Bruce Greyell quashed the approval and ordered the province to restart consultations.
The province, relying heavily on the municipality’s consultations with the Squamish, had cut off discussions with the aboriginal group so it could approve the OCP before the 2013 provincial election.
Not good enough, the court ruled, agreeing an arbitrary deadline should not have been imposed.
“While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions,” Greyell’s decision states.
It’s easy to imagine a similarly worded legal rebuke unravelling the work of either the National Energy Board in recommending approval of Northern Gateway, or of the federal government’s decision to give it the green light.
Particularly after the Tories passed various legislative changes to streamline the pipeline approval process – specifically limiting how long it can take.
The Squamish Nation decision isn’t an outlier.
There is a stack of rulings by courts high and low that have repeatedly concluded the Crown must meaningfully consult and accommodate aboriginals if a government decision may infringe their constitutionally protected rights and title.
“The case law says First Nations don’t have a veto, but equally it says the Crown has to be open to major changes or even not proceeding with the project in their consultations,” said Greg McDade, a lawyer who has led multiple aboriginal rights challenges and expects to represent bands against Enbridge.
McDade, who also represented the Squamish against Whistler and the province, will speak only in broad terms about the likely legal avenues of attack.
“It certainly does appear that the Harper government has a fixed agenda here regardless of the facts,” McDade said. “The closer the NEB process gets to being a sham or facade, or constrained by government rules, the less likely it is to be accepted as adequate.”
Despite the strong legal hand of First Nations, McDade doesn’t think it will take a judge to end Enbridge’s dream of an oil route to the Pacific.
“The bigger problem is not what the courts say about this, but social licence. I don’t think it’s feasible to build a pipeline in a remote area against the wishes of the First Nations who live there. I think that, more than the court process, is the end of this pipeline.”