What does the B.C. government’s rejection of the Northern Gateway Project mean?

What does the B.C. government’s rejection of the Northern Gateway Project mean?

In recent days, there has been extensive media coverage on the rejection of the Northern Gateway Project by the B.C. government.  What exactly does this mean?  Does it mean that the Northern Gateway Project will not proceed?

Let’s step back and take a look at the ongoing process considering the Northern Gateway Project (the “Project”).  We provided an explanation of the Joint Review Panel process in our April 2012 issue of Newsbrief.   The Project hearing is being conducted by the National Energy Board (the “NEB”) and is a combination of several distinct processes.  First, the NEB is considering an application under the National Energy Board Act for a Certificate of Public Convenience and Necessity.  Secondly, the NEB has been appointed as a Joint Review Panel under the Canadian Environmental Assessment Act (the “CEAA”). Finally, the government is relying upon the consultation effort of the proponent and the Joint Review Panel to discharge its duty to consult with Aboriginal groups.

Since our original article in the decision-making power of the NEB has been changed with the passage of the federal omnibus budget bill in mid-2012.  Prior to the passage of the federal omnibus budget bill, the NEB could either refuse to grant a certificate of Public Convenience and Necessity or, if the NEB determined that such a certificate ought to be granted, make a recommendation to the federal Cabinet for issuance of the certificate. After amendment by the federal omnibus budget bill, the NEB no longer has the power to refuse a certificate of public convenience and necessity.  All final decisions, whether to refuse or grant a certificate, will be made by the federal Cabinet.

So…. what does the B.C. government’s rejection of the Northern Gateway Project mean?  It means that the B.C. government has made a strong political statement on its position.  It has raised concerns with respect to the potential for spills from the pipeline and tankers.  As well, the B.C. government has raised concerns with respect to spill response planning by the project proponent.  However, the B.C. government is not the decision-maker in this case.

The NEB, as a pipeline regulator and a Joint Review Panel under CEAA, will present its conclusions and recommendations to the federal Cabinet.  Ultimately, the decision to allow or not allow the Northern Gateway Project rests with the federal Cabinet.

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5 Comments
  • Cabinet approves the Northern Gateway project | Environmental Law Centre (Alberta)
    Posted at 08:50h, 24 June Reply

    […] its rejection of this project unless Enbridge can meet five conditions set by the province (see our previous post). This may impact on Enbridge’s ability to obtain the necessary permits and approvals from the […]

  • Cindy Chiasson
    Posted at 09:35h, 18 June Reply

    For a BC organization’s perspective on the BC government’s Northern Gateway position, see West Coast Environmental Law’s blog post “On how to say no, clearly and loudly”: http://wcel.org/resources/environmental-law-alert/how-say-no-clearly-and-loudly

  • environmentallawcentre
    Posted at 08:39h, 12 June Reply

    Diane Saxe has weighed in on the issue of opposition from aboriginal groups being the real challenge to Northern Gateway. “Northern Gateway pipeline doomed by BC and aboriginal opposition?” http://envirolaw.com/northern-gateway-pipeline-doomed-bc-aboriginal-opposition/?utm_source=feedly

  • Laura
    Posted at 04:58h, 07 June Reply

    I think it is clear that the NEB/CEAA process is federal. However, I would have thought this would include some analysis of whether any BC approvals might apply, BC’s current agreements with Ottawa and whether they will be continued, and also whether there is a constitutional problem if BC passed legislation that would prohibit the pipeline. Perhaps in a follow up article?

    • Brenda Heelan Powell
      Posted at 13:17h, 10 June Reply

      Thanks for your comment Laura.

      This particular post was meant to provide some clarity on the role of the B.C. government within the current Northern Gateway process from the perspective of an Alberta-based organization. For a perspective from an organization directly involved in the process, check out the Ecojustice website for its updates on the Northern Gateway Project.

      Your comment suggests that, in the event that the Project is approved, the B.C. government might pass legislation prohibiting construction of the Northern Gateway Project. Given that the Northern Gateway Project is an interprovincial work, the federal government has strong constitutional authority over the fate of this project. While this does not mean that the B.C. government would be precluded from legislating within the same area (constitutional law does allow both federal and provincial governments to legislate concurrently), the doctrine of paramountcy means that in the case of conflict federal legislation prevails. The B.C. government would have to tread carefully to avoid overstepping its jurisdictional authority.

      At this point, consideration of “roadblocks” that the B.C. government might attempt to put up against the Northern Gateway Project is very speculative. Aside from regulatory and legislative considerations, over-arching political considerations (such as province/province and province/federal relationships) will likely play a role in the ultimate fate of the Northern Gateway Project.

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