VANCOUVER - Two First Nations in British Columbia have launched a court challenge against the province, saying it shirked its responsibility to make a decision on the Northern Gateway project and gave that power to the federal government.
The Gitga'at First Nation and the Coastal First Nations say B.C. violated their constitutional rights by failing to consult with them on a proposed pipeline when it signed an agreement to partner with the National Energy Board.
They filed a petition in B.C. Supreme Court on Tuesday, seeking to have the 2010 deal declared invalid.
The groups said in a court document that the agreement "purports to remove the need for an environmental assessment" by the province to determine if the project should proceed and if so, under what conditions.
The First Nations, which represent bands on the province's north and central coasts, said the project proposed by Calgary-based Enbridge Inc. (TSX:ENB) would put their communities at risk of potential oil spills.
The groups said about 600 kilometres of land, including around 850 streams and rivers, could be threatened by the pipeline that would connect Alberta oilsands to a tanker port in B.C. for export to Asian markets.
Art Sterritt, executive director of the Coastal First Nations, said the province was obligated to make its own decision on the $6-billion Northern Gateway pipeline.
"They passed that decision on to the federal government," he said.
"They didn't consult with us and they have a legal obligation to do that, not just for First Nations, but for British Columbians. They don't think this is a safe project."
Sterritt said the federal government could still have done its own environmental assessment but the province needed to take the lead and not delegate that responsibility to Ottawa, especially when it argued against approval of the project.
"We think they erred in that and they need to correct that."
"Hopefully, the court sees it the way that we see it," said Cam Hill, an elected councillor with the Gitga'at First Nation, located on the north coast, with its main village at Hartley Bay.
"The Gitga'at was not consulted and at the heart of this matter is our way of life. And we will not back down in any way shape or form to protect that which is ours, from the beginning of time," he said.
British Columbia argued against the pipeline at hearings before a joint review panel, saying the evidence did not support Northern Gateway's contention that it would have a world-class spill response in place.
In its submissions, the province said the terrain the pipeline would cross is remote and difficult to access, the impact of spills into pristine environments would be profound and a 'trust me' attitude "is not good enough."
In July 2012, B.C. Premier Christy Clark announced her government will not support Northern Gateway or any other oil pipeline project unless five conditions are met, including world-leading oil-spill response and clean-up systems.
The two First Nations said the province could have gone a step further by conducting its own environmental assessment.
Environment Minister Mary Polak did not comment Tuesday on the court challenge. A spokesman for the ministry said the government had not yet received the First Nations' petition.
The joint review panel issued a report recommending approval of the project in December 2013, subject to 209 conditions, after finding that a large oil spill would not cause permanent damage.
In January 2014, the Gitga'at filed a court action challenging that recommendation, bringing to 10 the number of applications filed in Federal Court against the project by First Nations and environmental groups.
Joe Arvay, a lawyer representing both First Nations, said the case filed Tuesday is the first one to challenge the province's involvement in the pipeline.
Arvay said B.C.'s jurisdiction over its environment calls on the province to impose conditions on the proposed pipeline.
"The province asked that the federal government impose those conditions and the federal government didn't impose those conditions," he said.
"Instead of the province appearing as an intervener before the joint review panel and making submissions it could have exercised its decision-making power to actually impose the conditions. It's sort of the difference between being a supplicant and being a sovereign.
"The implication of doing that is what we now see — which is the federal government assumed total control of the project."