Nathan Cullen is right that the Canadian environmental assessment process needs to be fixed, but not for the reasons he says it should.
The Skeena-Bulkley Valley NDP MP argues that the joint review panel looking into the proposed Northern Gateway pipeline didn't properly consider the interests of First Nations before recommending the federal government approve the pipeline, so long as pipeline developer Enbridge meets more than 200 conditons.
Cullen's criticism is not of the review process itself but of the conclusion this specific panel reached. First Nations and environmental groups celebrated the negative findings of the environmental assessment into the proposed New Prosperity mine near Williams Lake, while mine developer Taseko Mines and supporters like Dick Harris, who sits with the governing Conservatives on the other side of the House of Commons from Cullen, questioned the legitimacy of the review.
Like the environmental groups and First Nations who have applied to the federal court for a judicial review of the Northern Gateway report, Taseko has filed its own application demanding a legal review.
Two different rulings but the losing side has reacted in the exact same way and has made the exact same argument.
The process is flawed, the review didn't look at this piece of evidence, it failed to take this other evidence in consideration, it didn't consult enough with this group or that group, blahblahblah.
It's guaranteed that Enbridge would have filed a legal motion for a review if the joint review panel had recommended against building Northern Gateway and the Tsilhqot'in National Government would have got its lawyer busy if the New Prosperity panel had recommended approval of the mine.
It's clear that opposing sides of these environmental reviews only want the process fixed when the decision goes against their stance.
The real problem with the federal environmental review process is the legal uncertainty that surrounds the recommendations it makes to the environment minister. Government bureaucrats hold community open houses all the time to seek input on various issues and then prepare reports, making recommendations to their political masters. Those reports are not challenged but the final decision made by the politicians can be taken to court on a variety of technicalities.
Removing the lawyers would go a long way to removing most of the politics out of the environmental assessments. The federal court will hopefully throw out all of the review applications, on the grounds that since the recommendations from these reports are non-binding on government, they are not legal findings and are therefore immune from legal challenge.
It is already the case that any law government passes or any decision government makes can be challenged in court. Meanwhile, governments have used reports to justify their support of resource development projects, but they have also rejected similar reports and reached their own conclusions, as is their right. In other words, the recommendations of any environmental review are as important as the government of the day decides they are.
Allowing legal challenges of the recommendations to government adds an unwanted level of legal complexity and interference to the environmental review process. The buck shouldn't stop with appointed bureaucrats charged with examining a development project but with elected officials, in this case, the federal environment minister and her cabinet colleagues, including Prime Minister Stephen Harper.
The Carrier Sekani Tribal Council recognized this right from the beginning. It refused to take part in the joint review process and chief Terry Teegee has been unequivocal in his statements that approval by the federal government for the construction of Northern Gateway in any form will be immediately challenged in court.
That's where the real battle will be fought and the final fate of Northern Gateway will be decided. These requests for a judicial review of the assessment reports are simply a waste of time, money and energy.
