“The issues that First Nations communities want to have addressed simply aren’t being addressed in the way business is being conducted at present,” said Mr. Eyford, the Canadian government’s special representative on West Coast Energy Infrastructure. “From the perspective of First Nations communities, their view is that the essential, upfront conversation just isn’t happening because Canada is saying ‘We’re going to discharge our obligation through the regulatory process.’”
Mr. Eyford made the comments in an interview with The Hill Times ahead of yesterday’s release of the Northern Gateway Joint Review Panel’s conditional recommendation that the federal government approve Enbridge’s $6.5-billion mega-project.
In its final report released on Dec. 19, the joint review panel issued 209 conditions for the project to go forward, including requirements for wildlife and biodiversity protection, spill response, emergency management, and benefit sharing. It also recommends that Enbridge front nearly $1-billion in liability insurance. The report concludes that the project will produce more than 550 permanent jobs and generate billions in annual revenue for the federal, British Columbia and Alberta governments.
The 1,177 km twin pipeline would have the capacity to deliver 525,000 barrels of oil sands crude daily from the outskirts of Edmonton, Alta., to port facilities in Kitimat, B.C., and import up to 193,000 barrels per day of condensate.
Prime Minister Stephen Harper’s (Calgary Southwest, Alta.) Cabinet now has six months to approve the project under new, controversial rules that were established in the 2012 budget implementation bill. The federal government has cast the pipeline as a project of national interest that would help Canada diversify trade away from the United States and towards Asia, particularly China.
The project is vociferously opposed by environmental groups and aboriginal communities throughout the B.C. interior and along the Pacific province’s coastline. Opponents of the pipeline fear that oil spills either from the line or from Asia-bound tankers will cause irreparable damage to the environment.
Mr. Eyford said that dispute is only made worse by the fact that regulatory processes like the Northern Gateway Joint Review Panel “have the unintended impact of creating adversaries” between First Nations and industry and government. “First Nations communities who wanted to have input into that project were required to attend a hearing where their evidence was taken under oath, witnesses were subjected to cross examination, and they were also expected to address the issues being raised by the project proponent and others through an adversarial process,” said Mr. Eyford.
In March, Natural Resources Minister Joe Oliver (Eglinton-Lawrence, Ont.) asked Mr. Eyford, a lawyer with the Vancouver-based firm Eyford, Macaulay, Shaw, and Padmanabhan, to engage with aboriginal communities in British Columbia and Alberta on the issue of energy megaprojects like Enbridge’s Northern Gateway and the doubling of Kinder Morgan’s existing TransMountain pipeline.
Mr. Eyford held 289 meetings with 48 First Nations communities and 28 aboriginal organizations, as well as 16 industry stakeholders and 29 departments and agencies at the municipal, provincial, and federal level over eight months. He delivered his final report to the federal government on Dec. 5. The 58-page document provides a thorough analysis of the state of play between the federal government and aboriginal groups over energy projects. An underlying theme to the report is that successive governments have failed to maintain sustained relationships with First Nations and aboriginal communities.
Since 2007 the federal government has essentially made regulatory processes the de facto setting for Crown-First Nations consultations on resource development, and while the courts have cleared the approach, Mr. Eyford says that it’s done little to improve federal relations with First Nations and aboriginal communities.
“What that’s meant is that Ottawa hasn’t engaged in the essential task of relationship building. ... Ottawa’s nowhere to be seen sometimes for several months, if not years, after a project proponent has gone out to discuss a project with First Nations,” he told The Hill Times.
Although First Nations do not have the ability to veto the project, they do have the ability to challenge it in court.
“They don’t have the ability in law to say, ‘No, you can’t build this project,’ but there are circumstances I could foresee where if there’s a collective opposition by several groups that are impacted by a project, then it is going to have an impact on the final investment decision,” Mr. Eyford said.
He added that the review panel’s approval was unlikely to clear the way for Northern Gateway.
“It’s going to be difficult. There’s a lot of work that will have to be done and I think there’s going to have to be a lot of patience exercised by the parties in terms of having some of the discussions that haven’t occurred yet,” he said.
Following the panel’s Dec. 19 announcement, Natural Resources Minister Oliver issued a press release saying that the government planned to consult further with aboriginal communities affected by the project.
“Now that we have received the report, we will thoroughly review it, consult with affected Aboriginal groups and then make our decision. We also encourage everyone with an interest to take the time and review the report,” Mr. Oliver said.
Some 45 aboriginal communities would be directly affected by the project as it’s currently planned, and the federal government and Enbridge say that 26 of the communities have signed equity agreements.
It’s unlikely that the project will go forward uncontested however. Many of the opponents of the project during the joint review panel process plan to redouble their efforts if Northern Gateway goes ahead.
In November, Art Sterritt, executive director of Coastal First Nations, an umbrella organization representing indigenous communities along the British Columbia coast and on the Haida Gwaii islands, told The Hill Times that First Nations were willing to “go to the wall” with Enbridge and the federal government over the project. “We fully expect that we’re going to have to fight this on all fronts at the end of the day,” Mr. Sterritt said.
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