Photographer: Brett Gundlock/Bloomberg

Supreme Court of Canada Dismisses Challenge on Enbridge Line 9

  • Enbridge consultation was ‘manifestly adequate,’ court finds
  • In separate case, seismic testing project halted in Nunavut

Canada’s Supreme Court rejected a challenge of Enbridge Inc.’s Line 9 pipeline modification, saying a government energy tribunal carried out proper consultation with an indigenous community.

In a pair of unanimous decisions Wednesday from Ottawa, the court ruled the National Energy Board has the power to handle the consultation on the government’s behalf -- and that it did so in one case and insufficiently in another. In the Enbridge case, it found consultation with the Chippewas of the Thames First Nation was “manifestly adequate.”

The cases are the latest flash-point in decades of legal battles over how much control indigenous communities have over their traditional lands, and over time courts have said Canada has a growing obligation to consult in cases where property rights are unclear. The issue affects hundreds of billions of dollars of resource projects often located in remote northern and western communities where there are fewer clear-cut treaties with the people who inhabited what became Canada after European settlement.

Enbridge won regulatory approval in 2014 to reverse and expand a portion of its Line 9 system, allowing for more shipments of western crude oil to refineries in Quebec.

Calgary-based Enbridge said it “appreciates and respects the Supreme Court of Canada’s decision” in a statement on its website, adding the company is committed to a stronger relationship with the Chippewas.

Prime Minister Justin Trudeau has already ordered changes to the National Energy Board to incorporate more aboriginal concerns and said he wants to make reconciliation a priority of his government. Before the ruling he said he would take a serious look at whatever the court decided.

Fell Short

A decision Tuesday by Petroliam Nasional Bhd. to abandon its proposed liquefied natural gas project on Canada’s west coast is the latest global departure from the country’s energy sector.

In a separate ruling Wednesday, the Supreme Court backed the Hamlet of Clyde River’s request to halt an approved seismic testing project by Petroleum Geo-Services Inc., Multi Klient Invest As and TGS-Nopec Geophysical Company ASA in Nunavut. That case made a similar argument about the National Energy Board and consultation.

The court, in essence, ruled that consultation was adequate for the Enbridge proposal while falling well short in the Nunavut case, where respondents weren’t given answers to simple questions -- such as what impact the testing would have on marine mammals fundamental to their community -- until what the court found was a 3,926-page “document dump” that was “practically inaccessible.”

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