Grounds are being staked out for appeals to the courts even before the National Energy Board (NEB) finishes its forthcoming decision on Canada's arctic natural gas production and pipeline project.
In legal fighting words, foreshadowing a claim that due process rights have been denied, a small but famously vigorous aboriginal community has filed a formal request for the NEB to reopen hearings on the C$16 billion (US$15.8 billion) Mackenzie Gas Project (MGP).
At the same time an equally lively environmental group -- Ottawa-based Nature Canada, a 71-year-old green pillar that was originally the Audubon Society of Canada -- has warmed up for a fight by sending a formal protest to NEB Chairman Gaetan Caron.
The fresh resistance activity, widely expected to be only the beginning of new protests against the imminent NEB ruling, is an early reaction against dismissive official responses to the report of the MGP's parallel and separate environmental and socioeconomic Joint Review Panel (JRP) representing a dozen northern agencies including aboriginal authorities.
The federal and Northwest Territories governments only endorsed 11 of 176 JRP recommendations for project conditions. All the shelved proposals were either rejected outright as beyond the panel's mandate or set aside with promises to accept their intent and eventually take unspecified actions on the topics at future dates to be determined by unforeseeable circumstances. The JRP report is an elaborate agenda for future governance of "sustainable" northern development, in arenas ranging from resource revenue sharing to health, education, welfare and cultural preservation programs.
The Sambaa K'e Dene say aboriginal rights, guaranteed by Canada's constitution, are violated by the governments' claims to have fulfilled their duties to consult native communities by talking to them before writing a formal response to the JRP that sets aside almost all of their wish lists.
The community's new formal protest insists that "in the interest of procedural fairness...the NEB must reopen the evidentiary record on adequacy of consultation such that Sambaa K'e can also file new evidence." The tangled northern Canadian regulatory process is "procedurally unfair" and "inadequate on matters of substance," the protest says.
The Sambaa K'e home town of Trout Lake, in remote woods near the territorial boundary with northeastern British Columbia, only has 110 residents. Rather than gas, the principal industry is guiding fishermen and hunters who pay small fortunes for charter flights to an airstrip and hunting lodge.
But small, isolated native communities have financial resources provided by the federal government as their legal trustee, vigorous lawyers, and a long history of mounting politically popular David-and-Goliath challenges against industrial projects and especially regulatory approvals.
Nature Canada, which claims 40,000 supporters and alliances with 350 other environmental organizations, likewise has a record of determined green resistance. The group had a hand in a years-long fight that held up a 1,600-well gas drilling program near a wildlife refuge in the Suffield region of southeastern Alberta, and in a green campaign that held up a major coal mining project in the Rocky Mountains foothills east of the provincial capital of Edmonton.
In a protest letter fired off directly to the NEB's chairman rather than into the board's library-sized northern pipeline and production project file, Nature Canada says the official responses to the arctic gas JRP report are misleading. "The governments' claim to accept the intent of recommendations while declining to make commitments and accept deadlines amounts to rejecting the recommendations," the green group says. "Crucially, the governments are refusing to set sustainability at the center of the project."
Except to indicate that it is working on its ruling, the NEB remains silent on the JRP report, the government responses and the emerging new protest wave. While a last-minute procedural duel between the governments and the panel forced the NEB to break a promise to hand down its MGP ruling in September, federal cabinet officials say they still hope to receive the decision this fall and plan a brisk, businesslike final review and ratification.
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