Northern Gateway Hearing Day 3: Nature has its Say


ELC lawyers Chris Tollefson and Anthony Ho Vancouver, BC / Coast Salish territory – Oct 5, 2015

ELC lawyers Chris Tollefson and Anthony Ho Vancouver, BC / Coast Salish territory – Oct 5, 2015

After two days of First Nations submissions, nature groups had their say at the Northern Gateway hearings. On Day 3, the Court heard submissions from ELC lawyer Chris Tollefson on behalf of Federation of British Columbia Naturalists (BC Nature), Ecojustice lawyer Barry Robinson on behalf of an environmental coalition that includes Living Oceans Society, Raincoast Conservation Foundation and ForestEthics Advocacy; and Steven Shrybman, who made submissions for Unifor, Canada’s largest private sector union.

First up was BC Nature. As a small membership-based organization of naturalists (primarily birders), with one paid staff and a host of volunteers, BC Nature had never gone to court prior to the Northern Gateway judicial review. In his submission, Chris focused on the absence of modeling and evidence relating to a large oil spill. He argued that the Joint Review Panel combined its duty to study the likelihood of significant adverse environmental effects with its separate duty to study effects of accidents and malfunctions that may occur. Northern Gateway had argued that since a large oil spill was highly unlikely, further study of potential spills was unnecessary. Chris emphasized that even if proponents and government officials think they are unlikely, accidents do occur. Allowing proponents to skip thorough spill assessment has serious, potentially catastrophic consequences. As an example, the British Petroleum Deep Water Horizon project in the US resulted in the largest oil spill in North American history and absolute devastation that continues in the Gulf of Mexico today. Chris cautioned against the precedent that would come with a ruling in favour of Northern Gateway on this point.

He also argued that the Panel report lacked reasons or logic in arriving at the conclusion that environmental damage from a large oil spill could be properly mitigated. He questioned whether measures that simply reduce the likelihood of an accident could be considered “mitigation measures” when the Canadian Environmental Assessment Act (2012) says those measures must mitigate or lessen the actual environmental effects. Also, the Panel did not identify what the mitigation measures actually were, which is also a requirement of the statute.

Chris said the Court should be guided by previous cases where the purpose of the federal environmental assessment act was considered and the precautionary principle used as a guiding purpose and requirement. Although the argument was technical, it is hugely important both in this case and as a precedent for future environmental cases.

He went on to note there was a unique opportunity for the Court to determine how accidents are malfunctions are dealt with under the law and that, given the inadequate large oil spill response planning, the Court should declare the Panel erred in law in approving the application and that the subsequent Cabinet decision should be set aside.

Next up, Barry Robinson argued that the Panel failed to consider the Recovery Strategy for the humpback whale, which is a requirement under the Species at Risk Act (SARA), and the draft Recovery Strategy was actually never before the Panel. He then outlined how the Panel considered upstream economic benefits from the proposed project, which actually comprise 35% of the predicted economic benefits, but didn’t consider upstream environmental impacts, such as the damage caused by oilsands extraction. This lopsided balancing resulted in a flawed assessment of whether the project is in the public’s interest, which is a requirement of the Cabinet’s approval. Barry also focused on whether diluted bitumen would sink or float when spilled in the marine environment – something that is still unclear given current scientific knowledge. Despite this uncertainty, the Panel proceeded as if spilled diluted bitumen would not sink – the best-case scenario rather than the most cautious. In response to questions from the bench, Barry outlined the sorts of errors in the Panel’s report that could make the Cabinet decision invalid.

Submissions for the applicants concluded with Steven Shrybman, counsel for Unifor. He argued that the Panel came to an unreasonable conclusion when it stated that “well-functioning markets” produce outcomes in the public interest. He argued that the Panel equated Northern Gateway’s private interests to the overall public interest. He said the Panel erred in considering the benefits of upstream oilsands extraction but not considering the environmental effects of the proposed project, including its expected greenhouse gas emissions.

Late in the day, Laura Estep for Northern Gateway argued a procedural matter and challenged the standing or the right of the environmental groups to be allowed in court on this issue. When asked by the Judge why the argument was not brought earlier, she replied they did not want to bring the motion too early.

Erin Gray is an Articled Student at the Environmental Law Centre

For more information on the Northern Gateway Hearings, including background of the case, summaries of the case and an explanation of some of the arguments, see: