The first legal salvo has been fired in what could be a long court process surrounding the proposed Northern Gateway pipeline.
At least three different applications to have the federal court examine last month's Joint Review Panel report were filed in federal court by Friday's statutory deadline. Each one identifies errors the interest groups believe the panel made when it recommended the federal government approve the northern Alberta to Kitmat pipeline and export facility with 209 conditions attached.
"We're asking the court to declare that the work of the panel is incomplete and therefore the government cannot make a decision until that work is completed," Ecojustice staff lawyer Karen Campbell said. "Government can't make a decision on an incomplete environmental assessment and an incomplete review."
Ecojustice, which represents the Raincoast Conservation Foundation, ForestEthics Advocacy and the Living Oceans Society, is arguing that the panel failed to take into account evidence surrounding the fate of diluted bitumen if spilled in the marine environment and a recovery strategy for humpback whales when it gave its favourable recommendation.
BC Nature has filed its own judicial review application after finding what it believes is a nearly dozen errors in law including the finding that the pipeline project could have a significant adverse impact on caribou, but that the impact was justified.
"The possible elimination of a caribou herd and the real threat this project poses to the marine environment are just not acceptable," BC Nature president John Neville said in a news release.
The Haisla Nation, whose traditional territory sits at the terminus of the proposed pipeline, has also filed an application to have the findings reviewed by the court based on the conclusions the panel reached around the impact the project would have on aboriginal rights.
While the panel recommended the $6.5 billion project proceed, the federal cabinet has the final decision-making authority. It has a 180-day window to make a decision starting from when the panel released its report on Dec. 18.
Northern Gateway spokesman Ivan Giesbrecht said the judicial review applications were expected but the company believes they're premature since cabinet has yet to rule.
"Northern Gateway is confident in the integrity of the Joint Review Panel process and report," Giesbrecht said. "Its recommendations and conditions are based on science and the input of experts."
Just what happens next is unclear because changes to federal environmental assessment legislation made in 2012 have yet to be significantly challenged in court.
"There's some procedural uncertainties because we've had so many changes in the laws as a result of the omnibus bill in 2012," Campbell said. "There's also some uncertainties in terms of what the next steps of the process are going to be, so all of that is going to have to be determined by the court at this point."
Northern Gateway and the federal government will have time to file their responses and, depending on how the court plans to proceed, there could a chance for cross-examination of evidence, but that would occur outside of a courtroom and the transcripts would be submitted as evidence.
It's not known how long the process will take to complete, but Giesbrecht said Northern Gateway doesn't expect it will delay the approval process.
If grounds for appeal are found, the cases could eventually work their way through to the Federal Court of Appeal and the Supreme Court of Canada.
At least one other high profile case is working its way through the same process as Taseko Mines filed a judicial review of the findings of a different review panel's findings on the proposed New Prosperity mine near Williams Lake.
Each judicial review application regarding the pipeline touches on different areas, but they are all asking the court to take some sort of action before cabinet makes its decision.
In Ecojustice's case, the environmental groups are asking the court to force the panel to go back and consider evidence omitted in its final report.
"We looked at what the panel said, we looked at the requirements of the legislation and in our view there are some things that are lacking and that were not done or not done completely," Campbell said.
Other First Nations groups have pledged to launch legal action on constitutional grounds should the federal government approve the pipeline.
"I think this is probably the beginning of a long line of lawsuits that will be filed on this project," Campbell said.
