Part one of two
If Prime Minister Stephen Harper and Enbridge had their way, Tuesday would be the end, not the beginning, of opposition to the proposed Northern Gateway pipeline.
In their world, approval from the federal government to begin construction of the pipeline across Northern B.C. to link the Alberta oil sands to the Pacific Ocean and Asian markets would have meant the time for talk was over and the time for building was here.
Instead, the time for building is still months, if not years away, and the time for talk is now actually worth something. Before Tuesday, the talk was from pipeline opponents and proponents so irrevocably divided that they aren't even speaking the same language. Going forward, the lawyers will now do the talking and those billable hours will add up to millions of dollars before it's all over.
Since the pipeline proposal was made in 2006, opponents have argued against the project for numerous reasons, including the risk of environmental damage, both on land and sea, the infringement on the jurisdiction of First Nations and the low level of economic benefit for B.C. Slowing the development of the oil sands and devoting more effort to alternative, non-fossil fuel energy sources has also been on the agenda.
All of those will still be on the table as pipeline opponents ramp up their protests, both online and on the streets. They will be nowhere to be seen, however, on the real battleground in the court rooms.
Once there, the opposition tact will come from two main directions. The lawyers hired by aboriginal groups will argue that B.C. First Nations have the right to reject development on their traditional territories that have the potential for irreparable damage to their way of life. In case that argument doesn't fly, the lawyers will also insist that Enbridge and the federal government did not adequately consult B.C. First Nations about this project. In other words, their legal argument will make little mention of the strengths and weaknesses of Northern Gateway.
The legal waters on both of these fronts are murky at best. While previous court decisions have made it clear that First Nations don't have veto power on resource development proposals in their traditional territories, the courts also said significant efforts have to be made by government and the private sector to seek the approval of affected First Nations.
Meanwhile, the lawyers hired by the environmental groups will leave the rhetoric to the people paying the bills. Their applications to the court will hinge on the validity of the joint review panel's findings, with the core argument being that because there are mistakes and omissions in the final report, the federal cabinet made a decision based on faulty, incomplete data. In other words, they're hoping a judge will order the federal cabinet to go back and reconsider its decision.
Note that neither the First Nations nor the environmentalists will be asking a judge to throw out the decision in its entirety. That power is outside the jurisdiction of the court but the law, as the Harper Conservatives have found out on several recent occasions, can introduce technicalities that can stop a government decision in its tracks.
The end game for the pipeline opponents is simple. In sports terms, they hope to run out the clock. They will try to delay the legal go-ahead for Enbridge to build and operate its pipeline for so long that it simply isn't worth it for the company and its partners to proceed because changing market conditions have taken away the prospect of significant profits.
Pipeline opponents didn't win their arguments before the joint review panel, nor did they win their arguments to the federal government. They don't have to win in the courts, either, just so long as they can endlessly delay development.
And even if the legal challenges are exhausted and the project can go ahead, all is not lost for pipeline opponents, because Premier Christy Clark still has some cards to play.
More on that tomorrow.
