Canada’s Federal Court of Appeal has given a British Columbia First Nation permission to apply for court review of the federal government’s approval of the Northern Gateway pipeline project.
The decision allowing the Gitxaala Nation to apply for judicial review of the federal cabinet’s decision in favour of the project proposed by Enbridge Inc. means only that the court has agreed to hear the band’s legal argument.
Due to the many lawsuits filed, it’s unlikely the court will hear arguments for several months, a spokesperson for the Gitxaala said in a September 26 press release. In the meantime, several parties are expected to file documents with the court, seeking guidance on how the lawsuits should proceed. The court could also choose to combine the cases.
Only a few weeks ago, the acting chief of the Gitxaala called for a process of reconciliation between First Nations and governments, underscoring, however, that it should not come through litigation.
“A courtroom is not where reconciliation should begin,” Clarence Innis said in a press release issued by the band, whose members live at Kitkatla, on the north side of Dolphin Island, just off the B.C. coast. The island lies roughly 45 kilometres southwest of Prince Rupert, B.C.
Supporters of the Kitimat LNG project, the Gitxaala have never endorsed the Northern Gateway project, in part because they believe crude oil tankers plying West Coast waters would pose a greater threat to the seas around Dolphin Island than LNG vessels.
In its recent press release, the Gitxaala claim the federal government relied on “an unlawful and unreasonable Joint Review Panel (JRP) report” in approving Northern Gateway. Among many other failings, the First Nation claims Canada “failed to provide reasonable accommodation and consultation regarding Gitxaala’s aboriginal rights and title.”
“We played by Canada’s rules, but all of our concerns were ignored,” said acting chief Innis in the same press release. According to Rosanne Kyle, the Gitxaala’s lawyer, the federal court’s granting of leave to apply for judicial review is significant.
“The issues raised by Gitxaala are so important to the [band’s] cultural and economic existence … that it is critical that their challenge to the project’s approval be given a full judicial review,” she said in the press release.
The evidence the Gitxaala put before the JRP showed that if the project were permitted, it would interfere with the Gitxaala’s rights in numerous ways, including: jurisdiction, governance as well as Aboriginal title; and economic, cultural and spiritual way of life, she said.
The Gitxaala have also argued that, if the pipeline were to proceed, huge oil tankers would travel through the band’s traditional harvesting territory, which provides 80% of its food.
“Canada has violated its own constitution,” said Innis. “Section 35 of the Constitution says the federal government has a duty to consult with First Nations, and they haven’t done that.” He said the Gitxaala have occupied their territory for thousands of years and will strongly defend their rights and title. “We’re in it for the long haul,” he added.
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