Failure to Consult ruling results in further delays for pipeline development
Court makes 'huge' ruling on pipeline - Says Ottawa failed to consult Dene Tha
DAVID EBNER AND SHAWN MCCARTHY - Posted on 11/11/06 - The Globe and Mail
CALGARY, OTTAWA -- The beleaguered Mackenzie Valley natural gas pipeline was hit with yet another setback yesterday when the Federal Court ruled that Ottawa failed to consult with the Dene Tha First Nation.
The Dene Tha's home is in northern Alberta, at the terminus of the proposed 1,200-kilometre pipeline that would connect natural gas in the Mackenzie Delta with Canadian points to the south.
"The court's conclusion is that the [federal] ministers breached their duty to consult the Dene Tha in . . . the creation of the regulatory and environmental review process," Mr. Justice Michael Phelan of the Federal Court wrote in his decision.
The decision was called "huge" by the Sierra Club of Canada, but it is not immediately known what implications it has for the $7.5-billion Mackenzie project.
The court ruled that the joint review panel, which is assessing the project's social and environmental impacts, cannot file its final report until the court has another hearing to decide on remedies for the Dene Tha.
The remedies hearing is an unusual step and will be the forum for all sides to discuss what should be done. The court said it is a late stage to begin consultations, but added that a "chief consulting officer" could be appointed to work with the Dene Tha.
The court also ruled that the joint review panel couldn't consider any issues related to the Dene Tha until the case is concluded.
The court further suggested that the joint review panel process, which has been running since February, could be restarted, if necessary.
The Dene Tha had argued they were excluded from the creation of the joint review panel. Several Ottawa ministries were respondents in the case, including Indian and Northern Affairs.
The joint review panel is working until next April and had been expected to file a report several months thereafter to the National Energy Board.
Bob Freedman, counsel to the Dene Tha, said the ruling gives his clients "breathing room" to prepare for consultations with Ottawa.
"Our clients are thrilled with the decision and very much hope this will finally press the [federal] government to sit down and work with us, which is what we've been pushing for all along," said Mr. Freedman, a lawyer at Cook Roberts LLP in Victoria. "The court sent a very strong message."
Mr. Freedman said he expects a remedies hearing to occur fairly soon.
Imperial Oil Ltd., the project's main proponent, is also behind schedule, saying this week it won't have a revised cost estimate and plan for the pipeline until some time next year, rather than by the end of this year.
Imperial said it is assessing the ruling.
"We have to understand what the decision means and what the rationale was and what implications it could have for the regulatory process," said Pius Rolheiser, an Imperial spokesman.
A spokesman for Indian and Northern Affairs Minister Jim Prentice said yesterday the minister had not had an opportunity to review the ruling and would not comment.
Nicholas Girard, a spokesman for the Canadian Environmental Assessment Agency, said the government must review the ruling before commenting.
Ottawa could appeal and ask for a stay pending the appeal, but the cabinet has not yet determined a course of action.
The Dene Tha represent about 2,500 people in northern Alberta. They filed their suit in May, 2005, and Federal Court agreed to hear the case last December. The case was heard earlier this year.