Aboriginal Enbridge foes have strong legal hand

A stack of rulings have said the Crown must meaningfully consult if decisions infringe on rights and title

Lawyer Greg McDade has handled high-profile aboriginal cases and expects to represent opponents of Northern Gateway pipeline.

Anyone who doubts Enbridge and the federal government face a tough battle ahead in the courts might want to read a decision handed down June 4 in B.C. Supreme Court.

The case pitted the Squamish Nation against Whistler and the provincial government, which approved the resort municipality’s Official Community Plan despite the First Nation’s concern its economic development aspirations there would be unreasonably constrained.

B.C. Supreme Court Justice Bruce Greyell quashed the approval and ordered the province to restart consultations.

The province, relying heavily on the municipality’s consultations with the Squamish, had cut off discussions with the aboriginal group so it could approve the OCP before the 2013 provincial election.

Not good enough, the court ruled, agreeing an arbitrary deadline should not have been imposed.

“While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions,” Greyell’s decision states.

It’s easy to imagine a similarly worded legal rebuke unravelling the work of either the National Energy Board in recommending approval of Northern Gateway, or of the federal government’s decision to give it the green light.

Particularly after the Tories passed various legislative changes to streamline the pipeline approval process – specifically limiting how long it can take.

The Squamish Nation decision isn’t an outlier.

There is a stack of rulings by courts high and low that have repeatedly concluded the Crown must meaningfully consult and accommodate aboriginals if a government decision may infringe their constitutionally protected rights and title.

“The case law says First Nations don’t have a veto, but equally it says the Crown has to be open to major changes or even not proceeding with the project in their consultations,” said Greg McDade, a lawyer who has led multiple aboriginal rights challenges and expects to represent bands against Enbridge.

McDade, who also represented the Squamish against Whistler and the province, will speak only in broad terms about the likely legal avenues of attack.

“It certainly does appear that the Harper government has a fixed agenda here regardless of the facts,” McDade said. “The closer the NEB process gets to being a sham or facade, or constrained by government rules, the less likely it is to be accepted as adequate.”

Despite the strong legal hand of First Nations, McDade doesn’t think it will take a judge to end Enbridge’s dream of an oil route to the Pacific.

“The bigger problem is not what the courts say about this, but social licence. I don’t think it’s feasible to build a pipeline in a remote area against the wishes of the First Nations who live there. I think that, more than the court process, is the end of this pipeline.”

 

Just Posted

Cache Creek landfill extension set for September completion

Project has been delayed due to wildfires and floods over past two years

Drag races set to return for Graffiti Days weekend

Annual event features old favourites like the smoke show, and new events like a drive-in movie

Bonaparte River fishway, Thompson steelhead among projects awarded grant funding

More than $9 million will help 170 fish and wildlife projects around B.C.

Wellness clinics provide free, drop-in health information

New service in Clinton helps patients manage their health care and stay out of hospital

New airline regulations bring compensation for tarmac delays, over-bookings

Some of the new regulations will roll out in July, while others are expected for December.

Scheer says it would take Conservatives five years to balance budget

Scheeraccused the Liberal government of spending $79.5 billion of previously unbudgeted funds

B.C. man, 30, arrested for driving his parents’ cars while impaired twice in one day

The Vancouver-area man was arrested after officers caught him driving impaired twice in one day

More than half of Canadians support ban on handguns, assault rifles: study

Divide between rural and urban respondents in latest Angus Reid Institute public opinion study

Spring rain needed as B.C. sees one of the lowest snowpack levels in 40 years

Snowpack levels in B.C. recorded on May 15 were similar to those in 2015 and 2016

Theresa May to quit as party leader June 7, sparking race for new PM

The new Conservative leader will become prime minister without the need for a general election

B.C. man who fell off cliff returns there to rescue eagle from vulture attack

Nanaimo’s James Farkas, who broke his hip in a fall, saves eagle on same beach months later

Raptors beat Bucks 105-99 to move within 1 game of NBA Finals

Leonard scores 35 as Toronto takes 3-2 series lead over Milwaukee

Municipalities protest after B.C. declares marijuana crops ‘farm use’

UBCM president seeks answers in letter to John Horgan government

Most Read