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Northern Enbridge Lawsuit: Caribou, Humpbacks May Legally Stand In Way Of Pipeline

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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 that the federal cabinet delay a final decision on the pipeline project until the Federal Court of Appeal can assess the complaints.

One of the suits, filed Friday by the Environmental Law Centre on behalf of B.C. Nature (the Federation of British Columbia Naturalists), requested the JRP'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 JRP 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 JRP'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 consider 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 JRP 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."

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