FILE – Marching down Highway 16 in February 2019 in Smithers. B.C., chiefs gather in Smithers to support Wet’suwet’en hereditary chiefs’ position on Unist’ot’en camp and opposition to Coastal GasLink natural gas pipeline. (Chris Gareau photo)

Wet’suwet’en hereditary chiefs take Canada’s environmental assessment system to court

Hereditary chiefs want Parliament to give itself the power to shut down oil and gas projects

Two Wet’suwet’en hereditary chiefs are suing the federal government to pass legislation that will allow government to shut down oil and gas projects after they have already been approved.

Attorney Richard Overstall filed the suit in Federal Court in Vancouver Feb. 10 on behalf of Lho’imggin (Alphonse Gagnon) and Smogilhgim (Warner Naziel) and their Likhts’amisyu Clan houses.

Overstall said the key item the plaintiffs are seeking is for the court to order the federal government to give itself the power to shut down projects such as the Coastal GasLink (CGL) LNG pipeline if Canada does not meet, or is in danger of not meeting its international commitment to reduce greenhouse gas (GHG) emissions under the Paris agreement, which seeks to keep global average temperatures below 2 C above pre-industrial levels.

Overstall said the claim wasn’t asking the court to order the government to shut down [projects],” but rather to change the environmental assessment act that approves projects like the $6.6 billion pipeline.

In essence, Overstall said, the chiefs want government to have the ability to take back an approval.”

“Right now once an approval is given to an oil sands project or an LNG project, there is no ability for the government to close it down,” he said.

Overstall said the suit is not specifically a prelude to a future claim to shut down the CGL project, but that it would open that door, if ordered.

“It would give anybody that ability to lobby the government,” he said. “I’m sure the fossil fuel industry would lobby the government not to use that power, but that’s the idea.”

The statement of claim relies on section 91 of the Constitution and Sections 1, 7 and 15 of the Charter of Rights and Freedoms as a legal basis.

Section 91 requires Parliament to “make Laws for the Peace, Order, and good Government of Canada.”

The claim states the government has breached that duty “by making laws that allow it to approve the construction and operation of high GHG-emitting projects and that allow such projects to continue operating through future decades with the result that Canada will be unable to comply with its constitutional duty to protect the plaintiffs and all Canadian citizens from the effects of global warming and will be unable to meet its international commitments to keep global warming to non-catastrophic levels.”

Citing Section 7 of the Charter, the claim said the government “has deprived the plaintiffs of their right to life, liberty and security of person by making laws that allow high GHG-emitting projects to operate now and into the future in breach of Canada’s fair contribution to keep global warming to non-catastrophic levels.”

Under 15(1) of the Charter it says the government “has deprived the plaintiffs of their right to equal protection and equal benefit of the law based on the age of the plaintiffs’ younger members and future generations by making laws that allow high GHG-emitting projects to operate now and into the future in breach of Canada’s fair contribution to keep global warming to non-catastrophic levels.”

Overstall said young people are especially at risk because fossil fuel projects have export licences for 40 years “which, as we say in the statement of claim, blasts it way through the various deadlines, 2030, 2050, that are in the Paris agreement and into the very dangerous, I would say catastrophic, climate effects in the latter half of the 21st century.”

Finally, the claim says that the infringement of Charter rights under Sections 7 and 15 cannot be justified by Section 1 which states Charter rights and freedoms are guaranteed “subject only to such reasonable limits prescribed by law as can be justified in a free and democratic society.”

The plaintiffs are are also looking for an order that the government completes independent annual audits of Canada’s cumulative greenhouse gas emissions “essentially warning the government and warning other Canadians when Canada’s share of the reductions is insufficient to meet the Paris agreement commitment,” Overstall said.

He added the chiefs feel it is their responsibility to take action on climate change.

“What they said to me was… these projects are going through our territories, we don’t like them for all kinds of environmental reasons, protecting our territories… we have a responsibility because anything that happens on our territory is our responsibility.” he said. “Under the Wet’suwet’en Indigenous law that’s always been a rule, that a house is responsible for what happens on its territories.”

The government has 30 days to respond to the claim. None of the claims have been proven in court.

Overstall expects the process to continue throughout the spring and summer and possible beyond.

CGL has not said yet whether it will seek intervenor status.

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