Federal Court of Appeal overturns Northern Gateway approval

The Federal Court of Appeal has quashed the decision by the Federal Cabinet to approve the Northern Gateway pipeline project on the basis that Canada failed to consult adequately with First Nations on the pipeline route.  With changes to the National Energy Board Act made by the previous government, pipeline projects like the Northern Gateway project are subject only to a review by the National Energy Board.  The NEB then makes a recommendation to the Federal Cabinet, which has the ultimate say in whether a project is approved.

The appeal court ruled that Canada failed in its approach to consultation with First Nations on the project, noting that the government carried out consultations in a "brief, hurried and inadequate" way.

Read the decision at: Federal Court of Appeal.

COTTFN files for leave to appeal to the Supreme Court in Enbridge Line 9B case

In October, I posted about the Federal Court of Appeal decision to deny an appeal by the Chippewas of the Thames First Nation ("COTTFN") from the decision of the National Energy Board ("NEB") approving the Enbridge Line 9B Reversal and Line 9 Capacity Expansion Project application.  COTTFN has now filed an application for leave to appeal the Federal Court of Appeal's decision to the Supreme Court of Canada.  Given that there was a dissenting opinion from one of the FCA judges and that the subject matter of the appeal concerns the role of administrative tribunals in relation to the Crown's duty to consult with and accommodate First Nations, there would seem to be a good chance that leave will be granted.

It looks like Enbridge is back in Court today looking to extend its injunction against Line 9 protesters

I have recently written about Enbridge Pipelines Inc.'s efforts to obtain injunctions against Line 9 protesters (click here).  It looks as if Enbridge is back in Court in London today in what is likely a motion for an extension of the injunction already obtained against protesters a few weeks ago.  If you're interested in observing the motion proceeding, the court docket says it will be heard by Madam Justice Gorman at 2:30 p.m. in Courtroom 14 on the 7th Floor of the London Courthouse at 80 Dundas Street.

Alberta Court of Appeal increases setback of sour gas pipeline from Native Reserve

Alberta's Energy Resources Conservation Board (ERCB) approved an application by Suncor to construct two pipelines, one of which would carry sour gas.  The lines were proposed to cross in the vicinity of the Stoney Nakoda/Eden Valley Reserve, which consists of 100 separate homes and approximately 650 residents.  The Stoney Indian Band appealed the ERCB decision to the Alberta Court of Appeal on the basis that the ERCB had erred in failing to characterize the Reserve as an "urban centre" (in which case the setback requirements would be more stringent).

Setback requirements for level three sour gas pipelines in Alberta are listed in Directive 056: Energy Development Applications and Schedules as follows:

0.1 km to an individual permanent dwelling up to eight dwellings per quarter section;

0.5 km to an unrestricted country development;

1.5 km to an urban centre or public facility.

Urban centre is defined as: “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling, or similar development the [Board] may designate as an urban centre”.

Before the hearing, in response to a request from Suncor, the ERCB staff found that the Reserve was not an urban centre. This was challenged at the hearing. The ERCB did not change the designation. It reaffirmed that the Reserve did not qualify as an urban centre because “the area of the [Reserve] nearest the trunk line has an estimated average residence density of five residences per quarter section, less than the residence density of eight residences per square section necessary to qualify for an urban centre designation.”

The Court found that the fact that the Board embarked on a “density analysis” was not in and of itself problematic as it may have served as a relevant factor to the Board’s analysis, given the Board’s statutory discretion.  However, it could not be the only relevant factor. Simply looking at the “density criteria” is incomplete and insufficient. The definition of urban centre in Directive 056 requires two considerations. First, is it a “city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling”, or, second, a “similar development”? In analyzing whether the Reserve was a “similar development”, the Board had to have recourse to the concepts of “city, town, new town, village, summer village, and hamlet”, which are not defined in Directive 056, but in the Municipal Government Act, RSA 2000, c. M-26.

A hamlet is defined in section 59 of the MGA as a community which “(a) consists of 5 or more buildings used as dwellings, a majority of which are on parcels of land smaller than 1850 square meters, (b) has a generally accepted boundary and name, and (c) contains parcels of land that are used for non-residential purposes.” The Reserve has more than 100 homes and houses schools, a church, band offices and a food bank.

The Court allowed the appeal and remitted the matter back to the ERCB for its consideration and redetermination in accordance with the Court of Appeal ruling.

Read the decision at: Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board).

NEB Participant Funding - What landowners can expect

The National Energy Board has recently released the report of its Funding Review Committee on the allocation of $175,000 made available for participants in the Vantage Pipeline Project hearing.  Six First Nations groups applied for more than $332,000 in funding based on budgets for participation in the approvals process.  In spite of that request, only $175,000 was made available by the Chief Operating Officer of the Board, Pradeep Khare. 

The NEB's Funding Review Committee (FRC) took the $175,000 and divided it up among the six applicants for funding, making a recommendation on the allocation to Khare.  The FRC addresses in its report the question of how the groups are to participate with less than was sought in their budgets - the answer from the NEB is that they will need to focus on specific issues and/or work together to minimize costs.

It will be interesting to see what happens when private landowners become involved in project funding applications as well.  Will additional funding be made available if there are more applicants?  Or will the pie simply be cut up into smaller pieces?  Clearly, the participant funding program created by the NEB and the federal government will not protect landowners from the costs associated with protecting their rights in pipeline and other project applications.  Despite the program, they will continue to bear the costs of energy projects on their lands.

Read the NEB's Funding Report at: Funding Review Committee’s Report.