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

Young Langley family plagued by angry cab customers

A couple rents a house formerly used by a cab firm, and unwelcome visitors knocking.

Woman groped on Langley’s 208th Street

Police are asking for tips to identify the man responsible.

PHOTOS: Family Day a success at Aldergrove Telephone Museum

A record number of people visited the Telephone Museum on Monday to tour the historic exhibits.

Fort jazz fest on the search for young talent

Fort Langley Jazz & Arts Festival is looking for their first “Rising Young Star.”

VIDEO: Langley wrestler takes gold at high school games

Victory felt like a comeback for D.W. Poppy student Parm Sidhu

VIDEO: Massive elk herd runs across Washington State highway

Elk have been making an appearance in the Pacific Northwest

Winter storm freezes U.S., halts air travel

Storm dumps snow or heavy rain, snarls travel in much of U.S.

Gwyneth Paltrow: Skier sued me to exploit my fame, wealth

The incident happened in Deer Valley Resort in Park City, Utah

Highway one will be closed tomorrow for avalanche control near Golden

The closure is expected to last for two hours

B.C. Seniors Advocate questions labour shortage in care homes

Are there really no workers, or are care aide wages too low?

B.C. business groups worry about looming economic decline in wake of NDP budget

The party’s second government budget focused on plenty of spending, business advocates say

Man injured in police shooting near Nelson has died: B.C. police watchdog

The death follows an incident in Bonnington on Feb. 13

Former NHL star Fleury in Surrey for conference on child abuse

At Surrey City Hall, two-day event hosted by Sophie’s Place Child and Youth Advocacy Centre

Experts urge caution after 10 human-triggered avalanches across B.C.

One man is still stuck after avalanche on south coast

Most Read