October 06, 2015 - 7:00 AM
VANCOUVER - A federal panel tasked with reviewing the Northern Gateway pipeline project failed to take into account the serious threat posed by oil spills and increased tanker traffic to humpback whales, says an environmental lawyer.
ForestEthics Advocacy, Living Oceans Society, Raincoast Conservation Foundation and B.C. Nature are part of a Federal Court of Appeal challenge arguing the government erred in granting approval to Calgary-based Enbridge (TSX:ENB) for the controversial, $7-billion megaproject.
Barry Robinson, a lawyer for three of the four environmental groups, told the court in Vancouver on Monday that the review panel's failure to consider Canada's official recovery strategy for humpback whales negated the federal government's approval.
"The final humpback whale recovery strategy was added to the Species At Risk public registry on Oct. 21, 2013," said Robinson — that was two months before the panel issued its recommendations. As of that date, the Joint Review Panel was required to take that document into consideration, he added.
"They seem not to have understood that obligation," Robinson said, referring to panel members.
"The panel failed to consider the humpback whale recovery strategy even after one of the interveners ... tried to bring the recovery strategy to their attention."
In late 2013, the Joint Review Panel — the independent body mandated by the National Energy Board to assess the environmental effects of the project — recommended that the pipeline project be approved with 209 conditions.
The federal government issued its approval six months later with the same conditions.
The proposed, 1,200-kilometre twin pipeline would carry bitumen between the Alberta oilsands to B.C.'s coast for export to foreign markets. Enbridge estimates the project would boost Canada's GDP by $300 billion over 30 years.
The Federal Appeal Court is considering a total of 18 legal challenges from First Nations, environmental organizations and a labour union during the hearing, which is set to conclude Oct. 8.
Raincoast's Misty MacDuffee said a bump in tanker traffic increases the likelihood of fatal collisions with whales and underwater noise seriously interferes with feeding and communication.
"The waters between Kitimat and Hecate Strait, where Enbridge wants to put its tankers, are critical feeding grounds," said MacDuffee, speaking outside the court building in Vancouver on Monday.
"As a (species at risk), Canada is obligated to protect habitat that is critical to the survival and recovery of humpback whales."
The push to have the court overturn the approval goes beyond opposition of this project and could set a pattern for all future pipelines, said lawyer Karen Campbell, co-counsel with Robinson for the environmental groups.
"If they continue with processes that are increasingly geared toward facilitating approval then we're going to see more and more cases in court," said Campbell. "We're hoping that we can stop that by getting a good precedent out of this case."
Joie Warnock with Unifor, which is expect to argue against the approval later in court, said the labour union does not oppose pipelines but takes issue with a faulty approval process that she describes as "rigged from the beginning."
"The playing field was never level between the powerful interests between foreign oil companies and those working Canadians who have concerns that need to be addressed," she said.
Eight First Nations argued in court last week that the federal government violated its duty to consult and accommodate aboriginal bands before approving the pipeline.
Ivan Giesbrecht, a spokesman for Northern Gateway, has said the firm accepts First Nations' traditional land-use rights and remains committed to working with aboriginal communities.
Lawyers for the federal government and Northern Gateway are expected to make legal arguments later this week.
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News from © The Canadian Press , 2015