Aboriginal Enbridge foes have strong legal hand

A stack of rulings have said the Crown must meaningfully consult if decisions infringe on rights and title

Lawyer Greg McDade has handled high-profile aboriginal cases and expects to represent opponents of Northern Gateway pipeline.

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.”

 

Just Posted

How many volunteers does it take to run a hockey team?

Meet the momma bears who make the Revelstoke Grizzlies’ games happen

Niedermayer jersey retirement ceremony a dream come true

Penticton minor hockey players bring home memories of a lifetime from Niedermayer jersey retirement

B.C. Interior free from measles

Vancouver measles outbreak hasn’t spread to the B.C. Interior

UPDATE: Tractor trailer overturned on Highway 3A near Yellow Lake

Drivers may be wise to plan an alternate route as crews will need to recover the truck

Highway one will be closed tomorrow for avalanche control near Golden

The closure is expected to last for two hours

Branching out: learning to ski at Revelstoke Mountain Resort

It’s the first time at the hill for the editor of Revelstoke Review

Ontario man accused of killing 11-year-old daughter dies in hospital, police say

Roopesh Rajkumar had been hospitalized with what police described as a self-inflicted gunshot wound

Larch Hills junior skiers top Teck BC Midget Championships

Multiple top-five finishes contribute to aggregate team trophy

Manitoba ‘pauses’ link with ex-B.C. premier Gordon Campbell after allegations

Campbell had been hired to review two major hydro projects

Heritage minute features Japanese-Canadian baseball team, internment

The Vancouver Asahi baseball team won various championships across the Pacific Northwest

UPDATE: Woman, off-duty cop in critical condition after stabbing outside B.C. elementary school

The officer was interceding in an alleged assault when he and the woman were stabbed

Pool plans disappoint Shuswap swim clubs

Salmon Arm mayor assures options for city rec centre only preliminary

Vehicle fire on Coquihalla near Kamloops

A large plume of smoke could be seen rising into the sky over Highway 5

$10-a-day child care not in 2019 budget, but advocate not irked

Sharon Gregson with the Coalition of Child Care Advocates of B.C. says NDP on track to deliver promise

Most Read