The federal government’s approval of the $36-billion Pacific Northwest liquefied natural gas (LNG) export terminal proposed for Flora Bank near Prince Rupert, B.C. violates First Nations rights and was based on flawed information, according to three separate legal challenges filed Thursday at the Federal Court of Canada in Vancouver.
Representatives from the Gitwilgyoots and Gitanyow First Nations as well as SkeenaWild Conservation Trust filed court actions requesting judicial reviews of the project’s approval which granted majority Malaysian-owned Petronas permission to build an industrial export facility atop sensitive eelgrass beds at the mouth of the Skeena River in a region scientists have identified as a ‘salmon superhighway.’
“It’s important to bring this forward in a court of law so that a spotlight can be shone on not only the deficiencies in the law, but deficiencies in the way the law was applied here,” Chris Tollefson, legal counsel for SkeenaWild, told DeSmog Canada.
Tollefson said the Canadian Environmental Assessment Agency’s assessment of the LNG project did not properly consider the impacts of the facility on fish and fish habitat.
Flora Banks provides a unique resting ground for millions of juvenile salmon transiting from the Skeena River, one of the largest salmon rivers in North America, to the Pacific Ocean.
In its project application Petronas proposed to compensate for destroyed salmon habitat by recreating similar habitat in another location.
Tollefson said such there is no certainty this offset plan will work.
“Where offsets are being relied upon in that kind of setting, there has to be a high level of confidence that they can replace what they are destroying. We say the evidence simply doesn’t meet that requirement.”
Tollefson said the agency designed conditions for Petronas should the offsets fail to adequately compensate for destroyed fish habitat.
“SkeenaWild says that is going be too late. Once we realize they didn’t work, it may be too late. There may be irreversible harm.”
“These stocks, their fate hangs in the balance.”
The project was approved subject to 190 conditions last month by cabinet. Catherine McKenna, minister of environment and climate change, told Postmedia the federal government stands "behind the science in this decision.”
“If legal action is taken we’ll certainly consider what next steps need to be taken," she said.
Gitwilgyoots Chief Yahann, also known as Donnie Wesley, said Ottawa’s approval of the LNG plant gave him no alternative to legal action.
“Once again, we are forced to ask courts to do what our politicians seem unable to do — to honour Canada’s obligations to its Indigenous communities, and to protect our environment from catastrophic harm,” he said.
The Pacific Northwest LNG project approval disappointed many environmental and Indigenous rights advocates who hoped Prime Minister Justin Trudeau’s promise to restore nation-to-nation relations with Canada’s Indigenous peoples as well as evidence-based decision making would prevent a industrial project of this nature from going forward.
“Despite repeated requests, the federal government has failed to properly consult with our people,” Chief Malii, Chief Negotiator for the Gitanyow said. “Justin Trudeau promised a new relationship with Indigenous communities. Instead, he added insult to injury by ignoring us, and giving the green light to a project that will destroy our way of life,” Malii, also known as Glen Williams, said.
Chief Yahann pointed to a recent federal court decision that found the federal government failed to adequately consult with First Nations in regards to the Enbridge Northern Gateway pipeline project.
“As with Enbridge, and despite repeated requests that they consult with us, Petronas and the federal government failed in their duty to listen to the ancestral owners of Lelu Island,” Yahaan said. “We have never been opposed to development. But we have always opposed industrial development on top of the most important salmon habitat we have on our coast.”
— DeSmog Canada (@DeSmogCanada) October 27, 2016
In addition to causing irreparable harm to unique salmon habitat, the Canadian Environmental Assessment Agency acknowledged the LNG terminal will be one of Canada’s largest sources of greenhouse gas emissions.
“It will be one of the very largest single point source emitters of greenhouse gas emissions in the country if it goes ahead for the forseeable future, potentially for as long as 30 years, which is the life of the project,” Tollefson said.
The Canadian Environmental Assessment Agency did not conduct a cumulative assessment of those emissions in light of Canada’s commitments under the Paris Agreement.
That larger, cumulative picture was never presented to cabinet, Tollefson said.
“We say that cabinet couldn’t therefore properly conclude that this project was justified under the circumstances,” Tollefson said.
“The outcome of this case will speak volumes about how our environmental laws respond to scientific uncertainty and the spectre of irreversible harm — and, more directly, how much our laws value one of the world’s most magnificent and abundant remaining salmon watersheds, and the livelihoods of the people who depend on it. “
Image: Federal ministers and Premier Christy Clark annouce the approval of the Pacific Northwest LNG terminal in September. Photo: B.C. Government via Flickr (CC BY-NC-ND 2.0)
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