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Lawyers charged Enbridge failed to adequately assess pipeline's impact on First Nations at Prince Rupert JRP

Enbridge is failing in its mandate to assess the impact of the Northern Gateway Pipeline on First Nations in British Columbia, lawyers say.

Gaps in the environmental assessment emerged during last week’s Joint Review Panel hearings in Prince Rupert, when lawyers representing a variety of groups who stand to be affected by the project questioned Enbridge’s panel of marine experts on their knowledge of traditional Aboriginal land use.

Responses raised concerns about whether Enbridge has fully considered the project’s impact on cultural and spiritual aspects of Aboriginal territory.

 “One thing that’s becoming more and more apparent is that the potential impact on Aboriginal rights, including Aboriginal title, haven’t been properly assessed,” said Jennifer Griffith, legal counsel for the Haisla  First Nation.

Griffith asked the panel last Thursday whether Aboriginal title rights factored into the determination of significance of the land at the terminal site in Kitimat, and Enbridge representative Jeffrey Green said they were not.

Legal counsel for Coastal First Nations asked whether specific sites, such as the Celestial Reef located west of Dundas Island, were evaluated for their impact on First Nations’ culture.

Panelists repeatedly answered no, adding that they hadn’t received the land use studies they requested from several groups. Dr. Tom Watson of Soleil Environmental Consultants, Ltd., told those in attendance that, while the baseline data regarding First Nations’ land use was incomplete, the assessment’s conclusions were still applicable.

He also said the panel welcomes any more information First Nations are willing to provide.

Throughout the five days of hearings, Enbridge experts defended the process, saying that if the assessment has determined that there will be no significant damage to marine systems, it stands to reason that there will be no adverse effects for the Aboriginal groups who use them.

Griffith disagreed.

“[Enbridge] has reached a conclusion where it thinks there are no significant adverse effect, there will as a result be no adverse impact on Aboriginal rights. One does not necessarily follow the other. Impacts to Aboriginal rights cannot be assessed strictly through the lens of the Canadian Environmental Assessment Act.” 

 She said the process was flawed from the beginning because First Nations rights were not taken into consideration when setting out the parameters of the panel hearings.  “The views of the First Nations have not been fully incorporated into the design of the process,” she said.

The Harper government has previously stated that it will rely on Enbridge for partial fulfillment of the Crown’s duty to consult with First Nations on the project, but will conduct its own consultation on issues that fall outside capacity of the Joint Review Panel. Griffith said the latest round of hearings has shown that the question of Aboriginal rights and title is beyond the scope of the Joint Review Panel.

 “That was confirmed in the testimony given by Northern Gateway that Aboriginal title hasn’t been considered for the project.”

The Haisla, one of the nations most directly affected by the proposed pipeline, are also concerned Enbridge is deferring parts of its assessment until after the application is approved, Griffith said.

“You’ll see that Northern Gateway is relying on some future programs to address issue that have clearly arisen in the context of the assessment.” Panelists described a three-year plan to continue evaluations and to test mitigation strategies if the project is approved.

Robert Jane, lawyer for he Gitxaala nation], said the proposed Fisheries Liaison Committee is the perfect example of this.

As part of plans to mitigate the pipeline’s impact on fisheries, Enbridge has suggested a committee made up of all interested parties, including commercial and recreational fishers, to convene regularly and address issues arising from the project.

But panelists have so far been unable to answer questions about specifics such as funding and transportation to meetings.

“It doesn’t say how anything is going to get resolved, who has to get out of the way if there is a problem,” Janes said.

“Maybe the tankers will be adjusted or maybe the Aboriginal people are just going to be going to a committee and told, here is our schedule. Adjust your fishing accordingly.”

He said the issue extends beyond Aboriginal rights and is something all Canadians should be aware of.

“So if the general public, even if they don’t even care about Aboriginal issues, they should be profoundly concerned about the fact that much of this involved mitigation is to be designed after the fact.”
Hearings will resume February 4 in Prince Rupert.

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