Please see the new Press Release from the Council of the Haida Nation on Trudeau’s announcement.  According to CHN President Peter Lantin:

“There are many good reasons to oppose these projects and few to support them. The perceived

benefits in no way trump what we know we will lose. Our Nation has done its due diligence; we have spoken

to BC and Canada, we have looked at the environmental, social and legal impacts of these projects and are not

convinced that shipping LNG or oil from the west coast is a good idea. These projects will further pollute the

Earth and no good will come of them.”

To view the full press release, please see: CHN_LNG_ENB_Final

Dear family, friends, and allies:

As you may already know, the Pacific NorthWest LNG project proposed by Petronas has been under environmental review since 2013. On February 10th of this year, the Canadian Environmental Assessment Agency (CEAA) issued its draft report that states:

“The Agency concludes that the Pacific NorthWest LNG Project is likely to cause significant adverse environmental effects, taking into account the implementation of the recommended mitigation measures, on harbour porpoise and as a result of greenhouse gas emissions … With respect to all other valued components, the Agency concludes that the Project is not likely to cause significant adverse environmental effects taking into account the implementation of the key mitigation measures.”

Those of us who have fished this coast and enjoyed its wealth know that this project will cause immeasurable damage to our ocean and quality of life.

Indigenous knowledge and western science say the same thing: The Skeena Estuary is no place for industrial development. The Lax Kw’alaams community knows this – in May they voted to oppose Petronas’ project and rejected a $1.15 billion-dollar deal. For the past six months, the Lax U’u’la have been occupying Gitwilgyoots territory. They are asserting their Indigenous rights and defending their abundant wild salmon and way of life. In January, hereditary leaders from the Skeena Watershed, as well as northern MLAs and our MP, signed the Lelu Island Declaration stating that the estuary must be protected from industrial development.  A team of Russian scientists toured the northwest last month—they spoke of their experiences with an LNG plant on Sakhalin Island and cautioned that Petronas’ plant could decimate Skeena River salmon runs.

HERE ARE THE 2 THINGS THAT YOU CAN DO TO HELP DEFEND SKEENA SALMON TODAY: 

1. Email your comment to the Canadian Environmental Assessment Agency. Tell CEAA and Canadian Ministers why you oppose Petronas’ Pacific NorthWest LNG on Lelu Island.  There’s a form statement below that you can copy, paste, and personalize as you like.

Send to: [email protected]

CC: [email protected], [email protected], [email protected], [email protected]

2.  Send this to 3 friends and encourage them to write their letters of comment, too. This is the last opportunity for citizens to have their say in this review process. Every voice counts.

For the love of Skeena salmon,

Haida Gwaii CoASt

P.S. Here is a link to an online form that makes letter writing simple and quick brought to you by Friends of Wild Salmon.

DRAFT FORM STATEMENT – COPY – PASTE – PERSONALIZE – SEND

Dear Canadian Environmental Assessment Agency,

 I write to you from Haida Gwaii, a pristine and vibrant archipelago off the northwest coast, to express my deep concern for the health and well-being of my mainland neighbours. The Skeena Estuary is an incredibly important and rich ecosystem that provides our northern communities with wild salmon, halibut, shellfish and seaweed. We live off of these resources, and fishing helps to contribute to our economies and overall well-being. Flora Bank, adjacent to Lelu Island, is an essential eelgrass nursery that salmon and eulachon need to survive. Indigenous knowledge of this area states its unique importance, and independent science dating back to the 1970s verifies Flora Bank is critical to their survival.                                                                                                             

The adverse effects of the Pacific NorthWest LNG plant proposed on Lelu Island cannot be mitigated. Our communities and cultures throughout the entire Skeena watershed will be negatively impacted if the proposed plant is built. I implore you to reject this project.

 Sincerely,

Recently the British Columbia Supreme Court (“Court”) released its reasons for judgment in Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34. The BC Environmental Assessment Office (the “EAO”) had entered into an equivalency agreement (the “Agreement”) with the National Energy Board (“NEB”). The Agreement allowed for the EAO to rely on an environmental assessment from the NEB related to Enbridge’s Northern Gateway project (the “Project”). The   Court found that the Province of British Columbia had abdicated its statutory duties and breached its duty to consult with the Coastal First Nations when it signed and failed to terminate the Agreement that provided the NEB with sole jurisdiction over the environmental assessment decision-making regarding the Project.

Background

British Columbia’s Environmental Assessment Act, SBC 2002, c 43 (the “EAA”) is the main legislative framework for the Province’s environmental assessment process for proposed major projects. In 2008 and again in 2010, the EAO and the NEB entered into equivalency agreements which were intended to avoid redundancy in the approval process and promote a coordinated approach. The equivalency agreements provided that the EAO accepted that any NEB assessment would constitute an equivalent assessment under the EAA. In doing so, the EAO abdicated its decision-making authority.

Coastal First Nations – Great Bear Initiative Society and Gitga’at First Nation (collectively “CFN”) sought, by way of judicial review, a series of declarations setting aside, in part, the Agreement for the Project.  CFN argued that while the EAA granted jurisdiction to the EAO to accept another jurisdiction’s assessment of the Project, the EAA did not authorize the EAO to abdicate its decision-making authority to grant an environmental assessment certificate (a “Certificate”) under the EAA. A Certificate is required prior to the approval of any project. In addition, CFN argued that they were owed a duty to consult prior to the Province entering into the Agreement and before the Province decided not to terminate the Agreement.

Decision

Statutory Interpretation

The Court first considered whether the EAA allowed the Province to abdicate its decision making. CFN argued that while the EAA provided authority for cooperation to avoid duplication of environmental assessments, the provisions of the EAA did not go so far as to allow for the abdication of the Province’s decision making.

In response, the Province argued the authority given to the Province and the exercise of that authority was an example of an effort by the Province to reconcile the overlap in jurisdiction between provincial and federal regulators with respect to environmental assessment.  Therefore the structure of the EAA allowed the EAO to exempt certain projects from obtaining a Certificate. The Northern Gateway project was one such project.

The Court acknowledged that the EAA granted the Province broad discretion to enter agreements with other jurisdictions to allow for equivalent environmental assessment processes. However, the Court concluded that the Province’s unique objectives, political and social goals, and legal obligations that led to the enactment of the EAA required an interpretation of the EAA that did not allow the Province to abdicate its decision-making authority. The Court stated the following:

…it cannot be the intention of the legislators to allow the voice of British Columbia to be removed in this process for an unknown number of projects, when the purpose behind the EAA is to promote economic interest in this province, and to protect its land and environment.

For these reasons, the Court held that despite the Agreement or other similar agreements, reviewable projects must obtain a Certificate under the EAA before projects began. Accordingly, the Court held that the Agreement was invalid to the extent that it purported to remove the need for reviewable projects to obtain a Certificate under the EAA. Finally, the Court declared that the Province must exercise its decision-making authority under the EAA in relation to the Project.

The Duty to Consult and Accommodate

The Court also considered whether there was a constitutional obligation on the Province to consult with First Nations before engaging in government action that may adversely affect First Nations’ rights. CFN argued that the Province had a duty to consult with First Nations before entering into the Agreement, as the Agreement allowed the Province to avoid its obligation to make a decision on the Project. Further, CFN argued that the Agreement provided for unilateral termination as it allowed the Province to terminate the Agreement at any time. Therefore the Province would not have been bound by the federal government’s decision if the Province terminated the Agreement prior to the federal government’s decision to approve the Project and completion of an environmental review process would be required.

In response, the Province asserted that no duty to consult arose in relation to entering into or terminating the Agreement for. The Province argued that pursuant to the Agreement the duty is assumed by the federal Crown. Generally, however, the Province took the position that the duty to consult does not arise until “actual foreseeable adverse impacts on an identified treaty or Aboriginal right or claim must flow from the impugned Crown conduct.” The Province’s position was that there must be a direct link between the adverse impacts and the impugned Crown conduct. If adverse impacts are not possible until after a later-in-time, independent decision, then it is that later decision that triggers the duty to consult.
The Court rejected the Province’s argument that the Agreement shifted sole responsibility for the duty to consult and accommodate to Canada, noting that both the federal and provincial Crown owe “specific responsibilities to consult First Nations as their respective legislative powers intersect”. However, the Court held that the Province did not owe a duty to consult prior to entering into the Agreement because there was little possibility that CFN’s rights would be adversely impacted by the Agreement as the Province retained the ability to unilaterally terminate the Agreement.  Nonetheless, the Province did owe CFN a duty to consult and accommodate on the Project and the duty to consult if the Agreement was not terminated.

By way of remedy, the Court ordered the Province to consult with CFN about the potential impacts of the Project on areas of provincial jurisdiction and how such impacts may affect CFN Aboriginal rights and should be addressed.

Implications

While it is unclear whether this decision will be appealed, it does raise a number of interesting questions with respect to the extent that provinces and the federal government may cooperate in EA processes. This decision makes it clear that the province cannot abdicate its duty to consult to the federal Crown in respect of projects that require both federal and provincial approval. As the Northern Gateway Pipeline Process and the Trans Mountain Process are subject to the same equivalency agreement, it is clear that the Province may adopt the NEB’s assessment.  However, it must consult First Nations about the impacts of the project before the Trans Mountain Pipeline can be approved.

The federal government has recently proposed a suite of new requirements for pipelines, including enhanced environmental requirements and First Nation Consultation. These new requirements provide for robust changes to the NEB’s review process and will likely affect the Northern Gateway Pipeline Process and the Trans Mountain Process. BLG will continue to monitor any appeal and follow the federal pipeline regulatory changes.

Federal Court of Appeal
October 1 – 2 and 5 – 8, 2015
Vancouver, BC
Open to the public.

From the Council of the Haida Nation:

The next milestone in the ongoing effort to defend northern BC from oil pipelines and supertankers is just around the corner. Please see attached PDF: CHN Legal Challenge Overview 2015.8.12

Some highlights from the document:

Check it out on Youtube:

Thanks to all the volunteers from the community who have been helping make this happen.  Looking forward to seeing the whole production up in time to respond to the Harper government’s blessing of another destructive mega-project…

The new animation will feature music from Alida Kinnie Starr with Jason Alsop from the Haida Hippies.  Haida Raid 3: Save Our Waters takes aim at the proposed Enbridge Northern Gateway Pipeline project with a style unique to Haida Gwaii (In Haida Raid 2, Raven flew in and hacked the Enbridge mainframe!).

Please check out and support the Haida Raid 3 Indiegogo campaign and help K’alts’idaa K’ah and the producers meet their goal:

https://www.indiegogo.com/projects/haida-raid-3-save-our-waters

Gwaai will also make a gold pendant for as a higher level reward if someone goes for that level of support!

Haida Raid 3 needs your support!  This stop motion animation project is a home-grown Haida and non-Haida production — Puppet Activism that takes on Harper and his cronies on the Northern Gateway Pipeline and the expansion of oil tanker traffic on the Northwest Coast.  A collaboration between K’alts’idaa K’ah (Laughing Crow) Productions, a storytelling society founded by the Haida carvers Jaalen and Gwaai Edenshaw and Dr. Ken Leslie, an educator and neuroscientist, Haida Raid 3 will feature music from Juno winning musician Alida Kinnie Starr.  This year’s theme, “Save Our Waters” is a song from Kinnie that brings into focus what’s at stake in this new round of threats to our ocean from large-scale industrial development.

The collaborators in Haida Raid 3 have launched an Indiegogo campaign to support their work and we invite you to check it out.  It has many different levels of rewards for your contributions, including bronze, silver, and gold castings of the characters in the production to Haida prints and stickers. Please help raise funds to make this project a success and send a clear message to the government that we want a healthy coastal economy not an industrial disaster waiting to happen!

Check out the Haida Raid 3 Save Our Waters Indiegogo campaign at:

https://www.indiegogo.com/projects/haida-raid-3-save-our-waters