First Nations and environmental groups filed for a number of judicial reviews of Pacific NorthWest LNG on Thursday, but the federal government says it stands firms behind its decision to approve the project.
Hereditary chiefs for the Gitanyow and Gitwilgyoots were in federal court to file for judicial reviews of the Canadian Environmental Assessment Agency’s (CEAA) approval of the project, which includes an $11 billion LNG plant on Lelu Island near Prince Rupert.
The Gitwilgyoots tribe claims they were not properly consulted. They also say the elected band council for the Lax Kw’alaams, which represents nine tribes, including the Gitwilgyoots, have no authority to support the project.
Meanwhile, the Skeena Wild Conservation group also filed for a judicial review that challenges the CEAA and Department of Fisheries and Oceans conclusions that the plant can be built with minimal impact on fish habitat.
One of the court’s first order of business may be deciding if the hereditary chiefs are the proper representatives of their people.
The Gitwilgyoots, which claims Lelu Island as their traditional territory. The elected Lax Kw’alaams band council originally rejected the project, along with a $1.1 billion benefits package.
But after a change in leadership, the Lax Kw’alaams changed its position somewhat. In a letter to the federal environment minister, the elected council said it could support the project, provided certain conditions were met.
Chief Yahaan (Don Wesley), a hereditary chief of the Gitwilgyoots, said at a press conference outside Federal Court that the Lax Kw’alaams elected band council has no authority over Lelu Island.
“The new council, they deemed that they could go out and take tribal territory and use the territory at their own discretion for oil and gas,” he said. “Our elected band council, their only jurisdiction is on reserves. Outside that jurisdiction belongs to the tribes. So we’re knocking heads with our local council.”
Greg Knox, executive director for Skeena Wild, said the federal environment minister’s approval of the project was flawed. He added the environmental review failed to do a cumulative climate change impact assessment.
“We have evidence to show that the Canadian Environmental Assessment Agency failed to provide solid information to both the minister of environment and to the federal cabinet to make an informed decision on this project,” he said.
In a statement to CBC, the federal environment ministry said the project went through a rigorous, three-year assessment process, and noted the government placed more than 190 conditions to minimize environmental impacts.
"The government's decision shows that the environment and the economy go hand in hand with over 190 conditions to protect the environment, including the first ever cap on emissions for a project," the statement reads.
"Indigenous groups were part of the environmental assessment technical working group that reviewed the project and will be part of the first ever monitoring committee along with the federal and provincial governments."
Tessa Gill, head of external affairs for Pacific NorthWest LNG, told the Alaska Highway News the company would review the applications once they were filed and received.
"Pacific NorthWest LNG has been meeting with local First Nations regarding our proposed project since 2012," Gill said.
"We are continuing to work collaboratively with area First Nations as we move through the various stages of the project, and look forward to building on the constructive relationships that have been established between the Project and local communities, including First Nations, to date.”
Hereditary authority vs. band council authority
Robin Junger, a lawyer specializing in First Nations and environmental law, agrees that, generally speaking, elected band council authority extends only to land and governance issues with respect to Indian reserves, not traditional territory, most of which in B.C. is unceded.
“The entity that represents aboriginal groups on rights and title is determined by the collectivity itself. It’s not based on the Indian Act," Junger said.
Should the courts not side with the hereditary chiefs, Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs, suggested there could be direct action by First Nations. He cited the blockades that have taken place at Standing Rock in North Dakota, where the Sioux are protesting a pipeline, as an example.
“If we cannot rely the courts to defend our land and indigenous rights, then we will have to do that ourselves,” he said. “We cannot allow this project to proceed.”
The total cost of building the Pacific NorthWest LNG plant and associated pipelines has been estimated at around $18 billion to $19 billion. That’s in addition to the roughly $8 billion it has already spent in upstream natural gas assets.
Whether the court case will add delays to the project remains to be seen. A number of natural gas and LNG analysts say a final investment decision on makor LNG projects around the world are not likely to be taken now until 2019, at the earliest.
-- with Alaska Highway News files