Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge’s Northern Gateway pipeline since at least 2009.

The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn’t fulfilling its duty to consult Aboriginal peoples as required under Section 35 of the Canadian Constitution.

An Environment Canada e-mail included in the documents contained a list of concerns regarding the consultation process, stating, “it is not clear that [the process] would meet the honour of the Crown duty.”

The e-mail also acknowledged “First Nations were not involved in the design of the consultation process” and that there was a “lack of clarity” concerning First Nations’ rights and title.

Haisla Nation Chief Councillor Ellis Ross said he received the trove of documents with “mixed emotions.”

“We’re very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title,” Ross said. “But it’s disappointing this information is in our hands now when we can’t do anything with it legally or politically.”

“But it does confirm what we’ve been saying all along about the process when it comes to rights and title is very inadequate. It doesn’t even follow case law.” 

Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a 'duty to consult' First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights. 

The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.

“Now we can see that Canada’s own environment ministry agreed with us,” Chief Fred Sam of Nak’azdli said.

“For years Nak’azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed,” he said.

Eight First Nations including the Haisla, the Nak’azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.

Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.

“At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues,” Tollefson told DeSmog Canada.

“The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged.”

When it comes to Section 35 of the Constitution, “the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory,” he said.

Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations — including BC Nature which he represents — against the Northern Gateway pipeline's approval in Vancouver this October.

Ellis Ross. Photo: Philip Chin

An additional Transport Canada e-mail released to the Haisla, dated August 31, 2009, also expressed doubt in the adequacy of the government’s approach saying “the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information.”

Both the Environment Canada and Transport Canada e-mails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.

Despite these doubts the federal government “charged ahead” with its consultation process, Chief Sam said.

“Now, many First Nations have been forced to go to court to challenge Canada’s Enbridge decision,” he said.

Gitxaala Nation Chief Clarence Innis said he’s “shocked” that, despite the apparent level of uncertainty about consultation, “Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations.”

“This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia’s Northwest Coast,” Innis said.

For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.

“We’re trying to follow the rules, and case law principles — the Haisla isn’t blocking roads or anything — we’re trying to follow the courts,” he said.

“But with Canada, it’s like the rules are there to be bent or broken.”

Environment Canada Sep 1 2009 Email Re Consultation Approach

Transport Canada Aug 31 2009 Email Re Consultation Approach

Image Credit: Ellis Ross by Philip Chin

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The Government of Canada approved the Enbridge Northern Gateway pipeline Tuesday, six months after the Joint Review Panel recommended the pipeline be built subject to 209 conditions.

Natural Resources Minister Greg Rickford said in a statement: “In December 2013, the Joint Review Panel found that construction and operation of the Northern Gateway Pipelines project is in the public interest, subject to 209 conditions being met by the proponent. After carefully reviewing the report, the Government accepts the independent Panel’s recommendation to impose 209 conditions on Northern Gateway Pipelines’ proposal.”

“Today constitutes another step in the process,” Rickford said, adding Enbridge committed to working with “aboriginal groups and local communities along the route.”

First Nations Reignite Opposition Across B.C.

First Nations are nearly unanimously opposed to the construction of the pipeline, however, and it is unclear how either Enbridge or the Harper government might address those concerns, steeped as they are within a constitutionally enshrined aboriginal rights framework.

In total, 130 First Nations have publicly rejected the project.

According to the Gitga’at Nation, the panel failed to legitimately consult First Nations during the review process, meaning the entire process did not meet the federal government’s legal duty to meaningfully consult aboriginal groups. How that conundrum can be remedied after the fact is anyone’s guess.

Upon announcement of the federal approval of the pipeline, a large group of First Nations, Councils and Assemblies launched a legal suit against the Government of Canada, saying “we will defend our territories whatever the costs may be.”

“This project, and the federal process to approve it, violated our right and our laws,” the groups stated in a press release. “We are uniting to defend our lands and waters of our respective territories. Our rights and laws compel us.” The groups include Gitxsan, Haisla, Heiltsuk, Tsleil-Waututh Nation, Wet'suwet'en First Nation, the B.C. Assembly of First Nations and Coastal First Nations among many others.

This Friday, the Gitga'at First Nation will string a colourful knit rope across the Douglas Channel, the export route of Northern Gateway tankers, in symbolic protest of the project.*

Legal Challenges Advance

In addition, the panel’s report was met with several legal challenges that addressed ongoing concerns with federal obligations to species at risk, such as caribou and the humpback whale (although, in what conservation groups saw as a brazen move, the federal government downgraded the status of the humpback whale).

The Environmental Law Centre (ELC) announced today it will file a suit challenging the pipeline’s approval on behalf of the Federation of B.C. Naturalists (B.C. Nature).

“Filing this lawsuit will ensure that the Federal Court of Appeal is able to hear and consider arguments relating to all of the various flaws and deficiencies associated with the Northern Gateway approval process,” Chris Tollefson, ELC executive director and B.C. Nature’s lawyer, said.

“We cannot stand by and allow Cabinet to approve this ill-conceived project on the basis of a JRP report that is so flawed and incomplete,” Kees Visser, President of B.C. Nature, said.

Majority of British Columbians May Have Final Say

British Columbians have also demonstrated on numerous occasions their majority opposition to the project. Most recently a Bloomberg-Nanos poll showed 67 per cent of British Columbians wanted the project either rejected or delayed for further review.

Yesterday at a press conference, the Dogwood Initiative, a democracy group in B.C., announced the project’s approval would be met with a citizen’s initiative – a province-wide vote that could oust the project by popular request. The Dogwood Initiative, along with several other environmental, First Nations, citizen and legal groups, will organize the vote, handing decision-making power once and for all to British Columbians.

The initiative, called “Let BC Vote,” already has 150,000 signatures.

The citizen’s initiative tool was successfully used in 2010 to oust the Harmonized Sales Tax (HST) pushed through by the Liberal government.

When it comes to gaining the approval of British Columbia, some of Premier Christy Clark's five conditions have yet to be met, including securing B.C.'s 'fair share' of benefits from the project. But perhaps more significantly, in April, residents of Kitimat, the proposed terminus of the pipeline and start of the export tanker route, voted 'no' to the project in a local plebiscite, showing even those who stand to gain the most don't support Enbridge in its ambitions.

209 Conditions Perhaps Most Significant Obstacle

As DeSmog Canada previously reported, the 209 conditions outlined by the National Energy Board (NEB) might ultimately represent the largest obstacle to the pipeline’s construction.

Changes to the NEB Act in 2012 (in the passing of the infamous Omnibus Budget Bill C-38 which saw the elimination of several environmental laws) made project conditions legally-binding, meaning they cannot be discarded by government as happened with the Mackenzie Gas Project. Although cabinet still holds the power to supplement or alter conditions in certain circumstances.

The 209 conditions fall into three phases: pre-construction, construction and pre-operation, and ongoing operations. To fulfill the 209 conditions, Enbridge will have to demonstrate to the NEB that the full requirements are being met throughout all phases of the project.

DeSmog Canada’s Heather Libby deconstructed the conditions in a previous post, outlining conditions specific to watercourse crossings, animal habitat, marine spill prevention and cleanup and shipping agreements.

Without all of the considerable legal challenges and technical difficulties and political uncertainties surrounding the project, construction could begin as early as seven months from now.

But with the hellfire sure to break loose, this approval means next to nothing about the project’s potential for actually being built.

* Correction: This article originally stated the Heiltsuk were stringing a knit rope across the Douglas Channel.

Image Credit: Kolson Kiera-Dawn, Crystal Lameman and Melina Laboucan-Massimo at Convergence 2014. Photo by Zack Embree.

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Today the internet is full of noise about the Enbridge Northern Gateway decision by the feds.

Take this poll!

Five other pipelines to watch!

Fun facts about Northern Gateway!

All the noise, ironically enough, makes me think about the silence of the Great Bear Rainforest — of the sea lion that popped up beside my row boat under the starriest sky I’ve ever seen while I sailed along the proposed oil tanker route three years ago.

I’m reminded of bobbing up and down on the water, thoughts coming in 60-second flashes between the breaths of a humpback whale feeding near our boat.

Now, like then, my mind moves away from all the hype to the only truth there is: clean air, clean water, wild salmon. That’s it.

My thoughts drift to the stoic face of Marven Robinson of the Gitga’at First Nation in Hartley Bay — to the people whose way of life depends on stopping this project.

And then my mind settles on the stillness and splendour of one of the world’s last untouched places … one of few places in the world that’s just as it was thousands of years ago. There's nothing like that thought to make you feel small in the scheme of things.

I’ve revisited that sailing trip in my mind more times than I can count in the past three years — when Joe Oliver called pipeline opponents foreign radicals, when I found out Canada’s spy agency was monitoring public hearings on the project, when the B.C. government called on the joint review panel to reject the project, when the town of Kitimat rejected the project in a plebiscite.

At times, the polarized debate on this issue has been all-consuming. But I’ve always found solace in going back to the heart of the matter: what kind of country do we want to live in? Are we the type of people who force the risk of catastrophe on communities that say no? Or do we know when to say enough is enough? 

Today pundits will write thousands of words about the political consequences of Prime Minister Stephen Harper’s decision. I'll try not to add to the noise.

But I will listen to the voices of First Nations who have rejected the pipeline and tankers on their lands and waters. And I will think of the two-thirds of British Columbians who want this project rejected or delayed. And I will be calm in knowing that thousands of groups and individuals are committed to preserving that long stillness and silence of the Great Bear Rainforest. And within that silence, the sound of opposition is deafening.

Photo: Jacob Scherr

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Major industrial power users in British Columbia fear that if the proposed Site C dam becomes a reality, rate hikes could put mills and mines out of business while saddling taxpayers with a costly white elephant and ballooning BC Hydro debt.

A decision on the $7.9 billion plan to build a third hydroelectric dam on the Peace River will be made by the federal and provincial governments this fall.

Economic questions about the mega-project were raised by last month’s joint review panel report, which noted the dam would likely be “the largest provincial public expenditure of the next 20 years.”

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The panel, which did not come out for or against the project, found that, based on cost comparisons provided by BC Hydro, Site C would be the most economical way to provide new power — but said it could not measure the true cost or need and recommended the B.C. Utilities Commission should look at it, an idea immediately dismissed by Energy Minister Bill Bennett. (The commission turned down the Site C project in the early ’80s.)

Strong opposition to Site C is now coming from the unlikely direction of the Association of Major Power Customers of B.C., an organization representing about 20 of the largest employers and industrial customers in the province.

“We have absolutely no confidence that this is the least cost plan,” association executive director Richard Stout told DeSmog Canada.

“It’s not the right project right now”

Major industrial power users in B.C. have seen a 50 per cent increase in rates over the last five years and are looking at another 50 per cent over the next five years, he said.

“It is unusual for us to criticize a government of this stripe, but BC Hydro has been out of control for a good 10 years,” Stout said, pointing to almost $5-billion in deferred accounts.

“Any other business would have been declared bankrupt by now,” he said.

Site C will take a decade to build and, with changing markets and a burgeoning natural gas industry causing a surplus of generating capacity in North America, it is almost impossible to accurately predict demand and prices, Stout said.

“All we know is the original load forecasts are going to be wrong,” he said. “It’s not the right project right now.”

Craig Thomson, energy and environment supervisor at Canfor Taylor pulp mill told DeSmog Canada that industry in B.C. was built with a foundation of low power rates, but in the last five years that has changed and Site C would be the final straw.

“I think the cost of hydro-electric dam construction is so astronomical that no one will ever do it again and we’re going to have this huge white elephant,” he said.

“Potentially it’s going to drive our industry out of business.”

B.C.’s natural gas hypocrisy

Doubts are growing about cost comparisons made by BC Hydro, which didn’t include the use of gas power because the 2010 Clean Energy Act demands that 93 per cent of the province’s energy needs be met by clean, renewable power.

The act effectively eliminated the use of gas turbines and sent the gas-fired Burrard Thermal generating station into early retirement.

But the province has now handed a Clean Energy Act exemption to the liquefied natural gas (LNG) industry, a move that allows gas plants to meet their massive power needs with natural gas. Meantime, BC Hydro is prevented from using natural gas even as a backup to renewables.

“It’s really hypocritical to allow them [LNG facilities] to burn gas,” Merran Smith at Clean Energy Canada told DeSmog Canada. “The carbon emissions, as well as the air pollution, are inconsistent with the province’s goals.”

“Gas is a fossil fuel. It may be cleaner than coal or oil, but it still has a heavy carbon footprint.”

Should gas turbines be allowed for backup power?

Like many others, Stout believes alternatives to Site C should be considered, including the use of gas turbines as an intermittent source of power — something that would first need the government to change the Clean Energy Act.

Thomson is looking at new technologies coming on stream and, in the meantime, Burrard Thermal, with a similar capacity to Site C, could provide sufficient intermittent power, he suggested.

“Electricity is 32 per cent of our operating cost and, if it goes up and up, someone is going to say the business is not viable and the doors will close,” he warned.

Energy economics expert Marvin Shaffer, adjunct professor at Simon Fraser University, believes Burrard Thermal should never have been eliminated as a source of backup energy.

“I’m not suggesting that an old, relatively inefficient plant like Burrard should be used as a base load facility. What Burrard can do is provide a very cost-effective backup to the hydro system as well as back-up peak capacity exactly where it might be required,” Shaffer said.

Burrard Thermal generating station was sent into early retirement with the introduction of the 2010 Clean Energy Act. Credit: Niall Williams via Flickr.

With Burrard in place, B.C. would have no shortfall of energy until 2033 and, even without Burrard, strategically placed gas thermal plants could supply low cost energy as needed, he said.

Faced with Site C as the alternative to intermittently using gas turbines, even Joe Foy of the Wilderness Committee comes down on the side of occasional gas use.

“It seems a better solution than drowning 100 kilometres of farmland when you don’t even need that power for 300 days of the year,” he said.

Oxford study: Dams routinely come in 90% over budget

Many also have concerns that, when costs such as transmission lines are factored in, Site C’s cost will soar above $7.9 billion.

Fears that costs will run amuck are backed by an Oxford University study of power dams that found construction costs of large dams are, on average, more than 90 per cent higher than their budgets.

Mark Winfield, associate professor in the environmental studies faculty at York University, sees parallels between Site C and costly nuclear power plant plans in Ontario.

“Large hydro projects like Site C and nuclear power plant construction or refurbishment reflect a focus on large, centralized, high-cost, high-risk, high-environmental impact, long-lived generating infrastructure,” he said.

That limits opportunities for the system to adapt to market changes and sets the focus on only one path, Winfield said.

“In both cases there are significant uncertainties about future demand and, therefore, substantial risk of making major investments in projects which may turn out not to be needed or which are overtaken by newer, better technologies,” he said.

Site C’s legacy: cheap power or wealth destruction?

Dan Potts, former executive director of the Association of Major Power Customers of B.C., believes the lasting legacy of Site C would be wealth destruction.

“The huge cost will rob the province of valuable resources that could be used to deliver other needed government services as well as burden the B.C. economy with debt and high electric power rates that will sap our competitiveness,” he said.

Times have changed from when previous dams were built on the Peace and Columbia Rivers, said Potts, who has calculated that gas prices would have to almost quadruple before power from Site C would be economically viable for export.

“B.C. Hydro has filed information that the cost of electric power from Site C will be in the range of $100 per megawatt hour. Current market prices are in the range of $30 per megawatt hour. If Site C were now operational, the market value of the power produced would be $350 million per year less than the cost,” Potts said.

Site C will lose $800 million in first four years: report

The possibility of exporting excess power to help fund the dam was discounted by the joint review panel, which predicted that, unless prices changed radically, B.C. Hydro operations would lose $800-million in the first four years of operations:

These losses would come home to B.C. ratepayers in one way or another. B.C. Hydro’s expectation is that it might sell Site C surpluses for only about one-third of costs, leaving B.C. ratepayers to pay for the rest.

But the panel also says that Site C, after an initial burst of expenditure, would lock in low rates for decades and produce fewer greenhouse gas emissions than other sources.

Ignoring the Clean Energy Act is not an option for BC Hydro and there is no doubt Site C compares favourably to other clean energy costs, said Hydro spokesman Dave Conway. In comparison to Site C power at $100 per megawatt hour, new generation from wind or micro-hydro comes in at $128 per megawatt hour, he said.

However, the panel noted that geothermal energy would cost about the same as Site C power — and as a firm source of power could present a viable alternative to the dam. Geothermal could be built incrementally to meet demand, eliminating the early-year losses of Site C, the panel noted.

Even without Site C, customers are looking at a 28 per cent increase in rates over the next five years, but British Columbians should bear in mind that they are paying one of the four lowest energy rates in North America, Conway said.

However, Foy would like all British Columbians to consider what else could be done with almost $8-billion.

“Maybe better education for kids or health care?” he asked.

“If we spend $8-billion on Site C, what community doesn’t get a health care facility?”

Image Credit: An area of the Peace River Valley threatened by Site C. Photo by tuchodi via Flickr.

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The proposed Site C dam on the Peace River is the best alternative for providing B.C. with reliable cheap power, but BC Hydro has not proved that the power is needed in the immediate future, says a much-anticipated report by the federal Joint Review Panel.

The report does not give a definitive yes or no answer to the planned 1,100 megawatt dam, which will flood about 5,500 hectares of land, but includes 50 recommendations on issues such as threats to endangered wildlife, health effects for those living in the area and destruction of First Nations heritage sites.

If approved, project construction would begin in 2015 with completion projected for 2023.

The ambivalent report says B.C. will need new energy and new capacity at some point and “Site C would be the least expensive of the alternatives and its cost advantages would increase with the passing decades as inflation makes alternatives more costly.”

However, “the panel cannot conclude that the power of Site C is needed on the schedule presented.”

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There are also important environmental, social, economic, health and heritage costs, panel members concluded.

Risks to fish and wildlife include harmful and irreversible effects on migratory birds and species such as the western toad and short-eared owl.

“Justification must rest on an unambiguous need for the power and analyses showing its financial costs being sufficiently attractive as to make tolerable the bearing of substantial environmental, social and other costs,” it says.

High costs yet alternatives not considered

The report notes that BC Hydro has not looked closely enough at alternatives such as geothermal energy.

“The panel concludes that a failure to pursue research over the last 30 years into B.C.’s geothermal resources has left B.C Hydro without information about a resource that BC Hydro thinks may offer up to 700 megawatts of form, economic power with low environmental costs,” it says

The estimated $7.9 billion cost raised questions, but panel members said they do not have the information, time or resources to look at the accuracy of cost estimates and recommended that, if the project proceeds, costs should be examined in detail by the province’s independent regulator, the B.C. Utilities Commission (BCUC).

The Liberal government previously exempted Site C from BCUC scrutiny and, although the recommendation was applauded by groups such as the Peace Valley Environment Association, Energy Minister Bill Bennett immediately threw cold water on the idea.

“This project has been poked, prodded and analyzed for the last 35 years,” he said

“I think subjecting it to another review after all the years it has been studied, is not a good use of public money.”

Bennett believes BC Hydro will keep to its budget, despite reports showing mega-dams around the world often run 50 per cent over budget.

BC Hydro has included $1.52 billion for inflation and contingencies, he said.

“Of course with large projects like these, there’s no guarantees, but with such a large contingency fund and such a large fund for inflation and all the work that BC Hydro has done, I think we can have confidence in that final number,” he said.

The proposal must gain the approval of the federal and provincial governments and Bennett said he will take a recommendation to cabinet this fall after further environmental and First Nations consultations.

Indecisiveness not all around

Bennett, who said he views the Joint Panel review as “mostly positive,” emphasized that he has not yet made up his mind about the dam, which, if approved, would be the most expensive project built in the province.

“I am right square in the middle of this,” he said.

NDP leader John Horgan said the report shows the Liberal approach to Site C has been reckless and does not have a foundation in the realities of the North American energy market.

“The challenge ratepayers have is they are facing 28 per cent rate increases over the next five years and we have a government proposing to spend $8 billion on power that we may not need, at a time we don’t have the money to spend,” he said.

Former BCUC chair Mark Jaccard, professor in the school of resource and environmental management at Simon Fraser University, said he is impressed the panel tried to address big questions such as climate impact.

“But I was a bit frustrated that the panel waffled so much. I think I wanted them to say yeah or nay,” he said.

It is a difficult decision, because there are compelling arguments on both sides, and politicians will ultimately have to take a stand, but it would have been good to have a definitive opinion from experts who listened to presentations at the hearings, Jaccard said.

“They are trying to say all the things for all the people,” he said.

Signs of optimism

In the Peace Valley, the report is generating some optimism and Andrea Morison, Peace Valley Environment Association coordinator, applauded recommendations that show the panel has significant concerns about impacts.

“It shows the proponent has not fully demonstrated the need for the project and that there are other sources they should be looking at. Another key point is they can’t conclude the accuracy of the cost estimate,” she said.

Morison believes that once Bennett has studied the report he will decide to follow the key recommendation of referring it to BCUC for a cost review.

“One thing we can count on with politicians is that they do change their minds and it’s not solely his decision,” she said.

Hudson’s Hope Mayor Gwen Johansson also wants Bennett to pass the project to BCUC for scrutiny.

“It would be disappointing if he did not follow that recommendation,” she said.

Treaty 8 First Nations Tribal Chief Liz Logan said the core message to government is why build a project that is not needed. Alternative solutions such as wind power or smaller hydro projects must be considered instead, Logan said.

“We are still going to be vocal about it,” said Logan, who hopes British Columbians throughout the province will put pressure on the province.

“This project doesn’t just affect us on the ground, it’s going to affect the pocketbook of every British Columbian,” she said, adding she wants the project’s cumulative effects studied.

Those living in the area that will be affected by the dam see the report as validation of their belief that the adverse effects outweigh any benefits.

Spring is finally coming to the valley, said Ross Peck, a retired guide outfitter whose family has lived in the area since 1924.The grass is greening up, the leaves are about to pop and the valley is full of animals. I saw the first osprey today he said.

If the dam goes ahead, part of his property will be flooded, roads will cut close to his home and Peck believes he would have to leave.

“I don’t think we could sit on our deck and watch them clearcutting for the reservoir,” he said.

Esther Pederson, who would lose part of her farmland and her home to the dam, has little faith in any consultation process.

“The consultation so far has been ‘do you want to sell your farm now or later,’ ” she said.

Armed with the concerns raised in the report, it should be possible to stall approval at least until the next election, Pederson said.

“It could be dragged out forever and the First Nations people are lined up to take the government to court,” she said.

Photo: Peace Valley courtesy of Andrea Morison and Don Hoffmann.

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Opponents of the proposed Site C dam are hoping a report from the Canadian Environmental Assessment Agency panel, to be released Thursday, will emphasize potential environmental damage from the massive dam and persuade the federal and provincial governments that the project should be scrapped.

The report from the Joint Review Panel into BC Hydro’s $8-billion plan to build a dam that would flood 83 kilometres of the Peace River, putting 14,000 hectares of farmland under water, was submitted May 1 to federal Environment Minister Leona Aglukkaq and the B.C. Environmental Assessment Office, but there was no obligation to release it to the public for 45 days.

“The fact that they decided to share it just after they got it themselves is a little bit surprising, but we are feeling optimistic and hoping for the best,” said Andrea Morison of the Peace Valley Environment Association.

The panel’s recommendations, put together after 26 days of hearings, are not binding on government, but are likely to outline issues and possible solutions as well as indicating whether some environmental problems are insurmountable.

“There’s nothing binding, but I think it holds a considerable amount of weight,” Morison said.

The report will be posted on the Canadian Environmental Assessment Agency’s website Thursday. The provincial and federal governments must make their own decisions within 174 days, or six months, of the report being issued.

“The province has been very clear from the get-go that they support Site C,” said Joe Foy, Wilderness Committee’s national campaign director.

However, if the federal government decides it can’t support the project, Site C would probably die, Foy speculated.

“It’s clearly a matter that would require the federal OK. There are massive impacts that are clearly in the federal arena,” he said.

In February, the federal government rejected the New Prosperity Mine near Williams Lake, despite it having provincial support, after concluding the mine would have environmental effects that could not be mitigated.

There is speculation that even within the B.C. Liberal party there are doubts about whether Site C is necessary, although Premier Christy Clark has made it clear she is a supporter and much of the last election campaign was built on proceeding with Site C as a key building block of developing a liquefied natural gas (LNG) industry.

However, Energy and Mines Minister Bill Bennett has consistently been more cautious and said shortly after the election, when revelations were made about BC Hydro’s new capital costs and construction cost overruns, that he wanted to make sure that government would not be facing cost overruns with Site C. Because BC Hydro is a Crown corporation, cost overruns would be borne by taxpayers.

“Bill Bennett frequently seems to be keeping the door open on Site C,” Foy said.

“He told us in January that he had a team of researchers looking at alternatives to Site C.”

Bennett also recently told the Globe and Mail that there could be another level of screening on Site C costs. Government previously decided to circumvent the Crown corporation’s regulator, the B.C. Utilities Commission, which would have looked at financial issues. The environmental review is not expected to look closely at cost, necessity or practicality.

Questions have also been raised about whether LNG plants would find hydro power too expensive and would be more likely to use gas to feed their massive electricity needs.

Paul Kariya, executive director of Clean Energy BC — an industry trade association that represents independent power producers, including gas generators — recently told DeSmog Canada that the major LNG companies are looking at powering their plants via natural gas.

“Times have changed. We’ve been through an era of building big dams,” Kariya said. “When you build a dam, you get this one massive lump of power and that’s not the way that energy is planned for anymore.”

Kariya says independent power producers offer a more incremental approach to meeting demand.

However, even with a report from the World Convention on Dams — which says that projects routinely come in at 50 per cent more than estimated — and mounting evidence that the power produced by Site C is not needed and is likely to be sold at a loss, it is doubtful that the province will back down, said retired federal economist Erik Andersen.

“They are addicted to big photo-op projects,” he said.

“Over the course of the past four decades, the need for a Site C generation facility has been part of the larger and exaggerated demand narrative that BC Hydro has been telling.”

Site C — which gets its moniker from being the third dam proposed for the Peace River — has been on the books since the ’70s. It was first turned down by the independent B.C. Utilities Commission in the early '80s, which said BC Hydro hadn't demonstrated that the power was needed or that the dam was preferable to all other sources of power. In the ’90s, BC Hydro suspended the project again because the need for power was still considered insufficient.

Morison is hoping that, with release of the panel’s report, Site C will start catching the attention of people throughout the province, especially if they learn their Hydro bills are likely to rise beyond the 28 per cent increase already expected over the next five years.

“They need to realize that this is going to cost them,” she said.

— With files from Emma Gilchrist

Photo: The Peace River Valley Near the Halfway River by Tuchodi via Flickr.

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According to a recent poll commissioned by four environmental groups, nearly two-thirds (64 per cent) of residents in British Columbia oppose Enbridge's plan to transport crude oil through B.C. using the proposed Northern Gateway pipeline and oil tankers.

The hybrid telephone-online poll, conducted by Justason Market Intelligence, found that 50 per cent of B.C. residents strongly oppose the Enbridge proposal, compared to 12 per cent who strongly support it.

The poll was commissioned by Dogwood Initiative, ForestEthics Advocacy, Northwest Institute for Bioregional Research and West Coast Environmental Law. Six hundred adult British Columbians were surveyed from January 13 to January 19, 2014 through random telephone sampling and Justason's online panel.

"When British Columbians actually get the facts about oil tanker and pipeline proposals, their opposition is overwhelming," said Will Horter, executive director of Dogwood Initiative. "Other polls in the past few months have only talked about pipelines, with no mention of the crude oil supertankers that would inevitably come with them."

Image: Oil Tanker Traffic in B.C.: The B.C. Outlook Omnibus / Justason Market Intelligence

This is the first poll released about Enbridge's oil tanker and pipeline proposal since the National Review Board's controversial joint review panel (JRP) report recommended conditional approval of the project in December.

When asked whether they trust the review process, 51 per cent of B.C. residents said they distrust the process, 32 per cent said they trust it, and 17 per cent were unsure.

"These polling results bring home why the Enbridge tanker and pipeline proposal is going nowhere fast — despite the JRP recommendation," said Jessica Clogg of the West Coast Environmental Law Association. "Residents of B.C. continue to withhold 'social licence' for the project, while multiple First Nations lawsuits threaten to derail it and the government of B.C. formally opposed the Enbridge project."

According to the poll, a significant majority of British Columbians (79 per cent) feel that decisions about projects like the Enbridge Northern Gateway proposal should be made with public participation, while only 13 per cent feel that such decisions should be made solely by government.

"British Columbians simply do not accept closed door decision-making and know they deserve a say. Any politicians thinking of cutting a backroom deal do so at their peril," Horter said.

A March 2012 Justason Market Intelligence poll had nearly identical results with 66 per cent of B.C. residents opposing the Enbridge proposal, and 50 per cent strongly opposed.

"For all the millions of dollars Enbridge has spent in advertising over the past two years, opposition to this proposal hasn't budged," said Sven Biggs of ForestEthics Advocacy.

Image Credit: Travis Blanston / Flickr

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After Northern Gateway’s lengthy, contentious joint review process, putting any faith in the ability of the National Energy Board to hold Enbridge accountable may feel foolish. And yet, the National Energy Board (NEB) may be the closest thing to an ally in government this project provides.

Right now, the Northern Gateway oil tanker and pipeline project is in a holding pattern while the federal cabinet reviews the recommendations from the NEB's Joint Review Panel. Barring delays or injunctions from any of the pending legal challenges, cabinet will announce its decision sometime in the next five months.

While there are, of course, all number of other legitimate hurdles, including ongoing First Nations legal challenges and the possibility the province could deny necessary permits, as of right now, cabinet approval and the 209 conditions recommended by the NEB are the only federal government-mandated steps standing in the way of bitumen-loaded tankers and Douglas Channel. Isn't it time they deserved a closer look?

Attaching conditions to approval of an energy project is common practice for the NEB. In theory, they allow the board to hold companies accountable for what they promise to do, while providing strict timelines (and, ideally, penalties) to ensure they comply. In practice, governments have been able to pick and choose the conditions to suit their tastes, as happened with the Mackenzie Gas Project.

However, the changes to the NEB Act in the spring of 2012 weren't all bad. A change in that piece of legislation means government can no longer discard the conditions attached to the recommendation.

In the case of Northern Gateway, conditions run the gamut from recommendations on spill prevention, pipeline coatings and valve placement; to habitat preservation for marine mammals, woodland caribou and freshwater fish; and proof of adequate consultation procedures with potentially affected First Nations.

All of them are grouped into three phases: pre-construction, construction and pre-operation and ongoing operations. Each phase has its own set of conditions, with some requiring an additional level of approval before the NEB will consider it ‘met.’ For Northern Gateway they breakdown as follows:

• 130 conditions to be met before construction can begin; – 55 of which require additional approvals from the NEB or other government bodies.  
• 60 additional conditions to be met before the pipeline or marine terminal could start operating; – 18 of which require additional approval from the NEB or other government bodies.  
• 17 ongoing conditions required during the life of the pipeline project, – 2 of which require additional high-level approvals from the NEB.

While the NEB Act enshrines conditions recommended by a panel, if a government body strongly opposes certain conditions, it can refer them back to the NEB for reconsideration. At that time, the NEB can decide to make a change to the conditions, but is under no legal obligation to do so.

For most (but not all) of the recommended conditions for Northern Gateway, this is the case. However, the passage of Omnibus Bill C-38 gives the federal cabinet additional powers to alter or supplement certain recommended conditions if they fit within the scope of the Canadian Environmental Assessment Act (or CEAA).

For those who didn’t closely follow the steady dismantling of Canada’s ecological protections in the summer of 2012, a weakened CEAA reduced the number of federally protected navigable waterways in Canada from several million to 162 and limited the scope of environmental assessments to only studying effects of infrastructure development on “fish, aquatic species at risk, migratory birds and federal lands.” Should the federal cabinet choose to use the powers it gave itself through the CEAA, it could alter or reduce some of the specific conditions that seek to protect these areas.

Not all of the conditions set for the Northern Gateway pipeline are worthy of study. Most are fairly procedural: requiring regular filings of safety reports, providing lists of company stakeholders and supplying schedules for construction/maintenance and safety testing. Others are more complex. They include:

Consultation with Aboriginal Groups: Throughout the joint review process, Enbridge was regularly criticized for its lack of consultation with First Nations, particularly when it came to traditional land use. As such, it is not surprising that the NEB included these concerns among its conditions.

To meet pre-construction conditions, Enbridge must prove it consulted adequately with all potentially affected First Nations, that it has achievable plans in place to mitigate and repair the damage its construction and operation will cause to these traditional lands and that it has a clear plan in place for ongoing bilateral communication and consultation. According to conditions 53 to 56, all of this needs to happen (and be approved by the NEB) at least a year before Enbridge can begin construction on lands traditionally belonging to First Nations. Any changes must be filed at least six months before construction begins, with a second filing required 90 days prior to starting construction on traditional lands (conditions 89 to 92).

It is worth noting that lack of faith in both Enbridge and the Joint Review Panel’s commitment to listening to concerns from Aboriginal groups forms the basis for the legal challenge tabled last week by the Gitga’at First Nation.

Due Diligence for Watercourse Crossings: The National Energy Board defines watercourses as “permanent or temporary structures that are or will be constructed in, on, under, over, through or across a water body,” saying “these particular locations merit focus because of the associated environmental sensitivities, and complex design and installation activities.”

Each crossing — and the Northern Gateway pipelines have plenty of them — requires extensive documentation, including proof of consultation with Fisheries and Oceans Canada, Environment Canada, the B.C. Ministry of Environment, Alberta Environment and Aboriginal groups. To quote conditions 125 and 126:

“Northern Gateway must not commence construction of a watercourse crossing until all pre-construction conditions have been satisfied for the construction spread, region, or work area in which the crossing is located.”

Unfortunately for the waterways, the federal cabinet has the power under the CEAA to dilute the conditions. It is entirely possible that once cabinet completes its review and approval process, these conditions will no longer exist in their current form.

Protecting Animal Habitats: As above, this is another area where the federal cabinet has given itself power to adapt recommended conditions. A portion of Northern Gateway’s inland route runs through habitats of endangered woodland caribou. Its watercourse crossings will impact freshwater fish and the land mammals who feed on them. Its Kitimat Terminal in Douglas Channel risks displacing extensive marine life, including humpback whales and marine birds. At least 17 conditions are devoted to steps Enbridge must take to identify, preserve and remediate these habitats — 15 of them requiring an additional level of board approval and consultation with external bodies at different stages of the project.

Fortunately, the potential impacts of the Northern Gateway project on these animals are the basis for at least twolegal challenges from environmental groups. If successful, these challenges could temporarily delay the project or force the Joint Review Panel process to reopen its investigation.

Marine Spill Preparation and Cleanup: In its advertisements, the Northern Gateway partnership assures the public its marine spill planning and prevention is world-class. Conditions 167 to 169 and 187 require proof those statements are based in reality. At least three years prior to starting operation of Northern Gateway, Enbridge must file proof of its plans for:

• Marine spill modelling and predictions including, but not limited to six previously requested scenarios.
• Studying how heavy oil disperses in freshwater and marine bodies and in different types of weather or seasons (particularly important given the new report from Environment  Canada confirming the tendency of bitumen to sink in water when mixed with sediment).
• A research program studying “varying physical and chemical properties of the oil intended to be shipped from the Kitimat Terminal, product weathering, dispersion and oil/sediment interactions, product submergence, product behaviour and cleanup following in-situ burning, and cleanup and remediation options for sediments and shoreline.”

External bodies that will need to sign off on this work include the National Energy Board, Environment Canada, Transport Canada, the Canadian Coast Guard, the Province of British Columbia, a Scientific Advisory Committee, First Nations and any other consulted stakeholders.

Then, nine months before it can apply to open its terminal, Enbridge must prove it has the financial resources and secured funds for all spills or accidents, including:

• $950 million for the costs of liabilities for, without limitation, cleanup, remediation and other damages caused by the project during the operations phase. This includes the following components and minimum coverage levels:
• Ready cash: Within 10 business days after a large spill from any project component, Northern Gateway must have unfettered access to at least $100 million to cover costs, including compensation to third parties for losses and damages in the near term, while insurance claims are being processed. Once used, this source of cash must be replenished immediately to cover the costs of a potential future spill. (emphasis added)
• Core coverage: At least $600 million that includes third party, stand-alone liability insurance and other financial assurance instruments that comply with the criteria.
• Financial backstopping for costs that exceed the payout of all other components in the plan (including parental and other third-party guarantees and no-fault insurance): must be in place at all times for a minimum amount of $250 million.

These conditions require access to more funds than any other pipeline project in Canadian history and are somehow still less than the estimated $1 billion US (and counting) Enbridge has spent to date on cleanup efforts for its 2010 bitumen spill in Kalamazoo, Michigan.

Shipping agreements: Above all, this pipeline can’t exist without long-term purchasing agreements from companies willing to buy its bitumen and condensate. At least six months before starting construction, Enbridge must provide proof it has secured buyers for at least 60 per cent of the bitumen or condensate that could be shipped per day in its pipelines. (Conditions 20 and 21) Enbridge is also restricted from holding any more than 10 per cent of its capacity in reserve for non-contract sales. If this pipeline is going to operate, it needs the bulk of its shipping to be on behalf of companies willing to commit to long-term contracts at fixed prices.

At the moment, Enbridge has limited partnerships with ten companies who, according to their final JRP filing, have “among other things, the option to acquire transportation capacity on each pipeline (FP Option Volume) at discounted tolls and to become an equity investor-owner in the project.” None of these companies have agreed to become shipping partners.

Conversely, the Kinder Morgan Trans Mountain Pipeline has binding agreements with 13 shipping companies, all of whom have signed on for increased capacity should the twinning project go forward.

If, as expected, the federal cabinet approves the Northern Gateway project in mid-2014, the National Energy Board could immediately issue its certificate with the final conditions.

Then, if on that same day, Enbridge submits all of its spreads, regions and work areas for the project to the National Energy Board, they would still be a minimum of 210 days (7 months) from breaking ground on Northern Gateway (condition 8b) and a minimum of a year away from technically (not practically) being able to begin construction on First Nations land, which comprises much of the pipeline route and the Kitimat marine terminal.

Even if the NEB decides to relax requirements on condition 8b, another 13 conditions must be met a minimum of six months (180 days) before construction could begin. At the earliest, those looking for opportunities for civil disobedience will need to wait until early 2015 for the chance to chain themselves to the first bulldozer.

Once started, construction of Northern Gateway is projected to take three years. Should every one of the ten pending legal challenges facing the pipeline project fail and if the potential citizen's initiative does not go forward, the absolute earliest a bitumen-laden tanker could leave Douglas Channel for Asia is early 2018 — after the next federal election in 2015.

For those opposing oilsands expansion, putting faith in the NEB’s oversight feels far from ideal. As Forest Ethics Advocacy tar sands campaigner Ben West told DeSmog Canada: “It is hard to believe the conditions, as weak as they are, would ever be enforced.” Dave Shannon of Douglas Channel Watch was equally blunt, saying: “I pick up that report and sometimes I am tempted to throw it against the wall.”

It is true that the National Energy Board has never before stopped construction of a pipeline project when a company did not meet conditions. But it is also true that before 2012 and the changes to the NEB act, no conditions applied to a project were binding. In many ways, Northern Gateway and its 209 conditions are the first of their kind. Through them, there exists in principle a public pathway to holding Enbridge accountable for its actions and the National Energy Board to task for its enforcement. But more importantly (and perhaps unintentionally), these conditions have opened up the monitoring of this project to the one other body even more invested in ensuring Enbridge never builds Northern Gateway: the majority of British Columbians who oppose it.

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British Columbia's Gitxaala Nation filed a lawsuit on January 17 claiming the federal Joint Review Panel's (JRP) report that recommended approval of the Northern Gateway pipeline was flawed and unlawful.

The B.C. First Nation's lawsuit is one of many filed in response to the report, including one filed by the Environmental Law Centre on behalf of B.C. Nature and another filed by Ecojustice on behalf of three different environmental groups.

Rosanne Kyle, lawyer for the Gitxaala Nation, said that the "Gitxaala were given the opportunity to speak, but were not heard."

The Gitxaala Nation's lawyers said that the review panel did not properly consider Aboriginal rights and title or weigh the public interest against the pipeline's economic benefits to the Alberta oilsands.

The band participated in the hearings, expending significant resources in submitting more than 7,500 pages of documentary evidence, providing nine expert witnesses and including a 320-page submission detailing the adverse effects of having as many as 230 supertankers moving through Gitxaala Nation territory annually.

The band claims tanker traffic in traditional waters violate their Aboriginal rights and title, noting the potential catastrophic effects an oil spill in the region's narrow coastal channels may have on Gitxaala way of life and the ecosystems they've harvested from for centuries.

The suit observes that the review panel had a mandate to consider the band's constitutionally protected rights in a meaningful way, and chose to ignore it.

"The Gitxaala played by the rules," said Clarence Innis, acting chief of the Gitxaala Nation. "The JRP had a responsibility to take our concerns seriously but it didn't."

Kyle also said that a series of recent government reports support the Gitxaala's concerns but were released too late to be considered by the panel for their report.

Ivan Giesbrecht, spokesman for Northern Gateway Pipelines, said in an e-mail that "Northern Gateway does not believe this will necessarily delay the review by the federal government of the (Joint Review Panel's) report," reports CTV News.

Despite the multiple lawsuits questioning the report's decision, Giesbrecht added that the JRP's recommendations were "based on science and the input of experts," and that the evidence presented was the "most thorough and comprehensive proceeding in Canadian history."

Cabinet has 180 days from the time it received the report, released in December, to make a final decision on the pipeline, adhering to the 209 conditions laid out in the report.

Image: Jennifer Castro / Flickr

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Not even a month has passed since the federally appointed Joint Review Panel (JRP) released its official report recommending approval of the Northern Gateway pipeline, pending the fulfillment of 209 conditions. Yet already two separate suits have been filed against the integrity of the report, with groups requesting cabinet delay a final decision on the pipeline project until the federal court of appeals can assess the complaints.

One of the suits, filed today by the Environmental Law Centre on behalf of B.C. Nature (the Federation of British Columbia Naturalists), requested the panel’s report be declared invalid and that cabinet halt its decision on the pipeline project until the court challenge is heard. The second suit, filed by Ecojustice on behalf of several environmental groups claims the panel's report is based on insufficient evidence and therefore fails to constitute a full environmental assessment under the law.

Chris Tollefson, B.C. Nature’s lawyer and executive director of the Environmental Law Centre at the University of Victoria, says “we have asked that the federal court make an order that no further steps be taken by any federal regulator or by Cabinet until this request is adjudicated.”

“We’re confident that the federal court will make that order because we’ve raised some serious issues with the legality of the report and if the report is flawed then it can’t go to cabinet, and it shouldn’t go to cabinet,” he said.

B.C. Nature has identified almost a dozen legal errors that bring the legitimacy of the panel’s recommendation into question.

“The two [errors] that we think are the most serious among those are the finding with respect to justification of serious harm to caribou and grizzly and the ruling with respect to a potential major oil spill and its consequences. We say that in both of those areas there is a glaring error that’s occurred that has to be addressed by the federal court of appeal,” Tollefson said.

A federal recovery strategy for humpack whales on the B.C. coast released in October cited potential increased oil tanker traffic as a danger to dwindling populations. The recovery strategy, released after a five-year delay, also noted the danger toxic spills posed to critical habitat. 

A federal caribou recovery strategy is expected by the end of the month.

“Both those federal strategies have to be considered by the cabinet when it ultimately rules on this [project]… For caribou this pipeline has some serious consequences and it will be interesting to see what happens when the federal strategy comes down.”

For Tollefson, the inadequacy of the official JRP report points to a failure of the Northern Gateway hearing process.

“It’s disappointing for everybody involved on the intervenor side, how this has unfolded. The report is not only legally flawed in relation to the specific issues that we’ve raised but I think there’s a more general flaw, which is that it’s failed the test of transparency, it fails test of intelligibility. It basically doesn’t grapple with the evidence,” he said.

The report reaches its conclusions “without setting out its analysis,” Tollefson says, “without discussing the evidence that forms the basis for those conclusions.”

“So we think there’s a basic rule of law issue here: does this report even conform with the basic requirements in terms of intelligibility and transparency that we expect from tribunals?”

“And we say that it doesn’t.”

Tollefson anticipates that the request will delay cabinet’s 180-day decision period, saying it would be “very difficult” for cabinet to address and respond to B.C. Nature’s complaints within that timeframe.

For Tollefson a delay in cabinet’s decision isn’t only foreseeable, it’s appropriate.

“Cabinet after all has to make its decision based upon the findings and the recommendations that arise out of this report.” Without a reliable report, what kind of decision can British Columbians expect?

The errors in the report could send the federal panel back to the drawing board.

“If we’re upheld on any of our arguments, that report will have to be sent back to the JRP, redone, and we’ll basically be starting, potentially, back where we were in June. In those circumstances, it makes little sense for cabinet to make a decision given that level of uncertainty around the future of the report.”

Image Credit: Mike Baird via flickr

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Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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