Feds, Equinor push back in court clash over Bay du Nord
Lawyers representing Equinor and the federal government on Thursday pushed back against arguments that Canada’s first deepwater offshore oil project was unlawfully approved.
In April 2022, Environment and Climate Change Minister Steven Guilbeault approved Bay du Nord, stating it was environmentally sound. He determined the project, about 500 kilometres east of St. John’s in Newfoundland, “is not likely to cause significant adverse environmental effects.” Opponents were quick to condemn the approval, noting the significant emissions that would come from the project and the risk it poses to marine life.
In Ottawa on Wednesday, lawyers on behalf of Sierra Club Canada, Equiterre and Mi'gmawe'l Tplu'taqnn Incorporated (MTI) — a group representing eight Mi’gmaq communities in New Brunswick — said Guilbeault didn’t have the full picture when considering the project’s environmental effects. Notably missing from the environmental assessment he based his approval on, they argued, were downstream emissions (when the oil is burned) and the potential effects marine shipping activity could have on the environment and Mi'kmaq rights.
On Thursday, Equinor lawyer Sean Sutherland confirmed that while assessing the project, the Impact Assessment Agency of Canada didn’t include downstream emissions, but said the groups had ample opportunities to request that those issues be addressed during the public consultation process.
Regarding downstream emissions, he said it is common practice for them not to be included in environmental assessments.
“Indeed, in a project EA, it is impossible to identify ultimate downstream uses, the regulations that may apply to those emissions, mitigation measures, and justification,” reads court documents.
He also dismissed the idea that marine shipping was omitted from the assessment, saying there was a reasonable inclusion of potential effects from marine tankers. Sutherland noted Equinor doesn’t know where any of this oil will be shipped yet, and some products might go straight to international markets from the production site, making it difficult to describe the full picture of tanker activity.
He focused heavily on arguments around Equinor’s openness to engage with environmental groups and First Nations, and what he said were numerous examples of the opponents weighing in on the project, and that they didn’t focus on marine shipping or downstream emissions.
Dayna Anderson, a lawyer for the Attorney General of Canada, said consultations with First Nations, specifically those represented by MTI, were thorough. During the process, the government deemed the duty to consult with the group as “low” because of the project’s distance from land and “therefore impacts to MTI’s rights would be minimal,” court documents read.
MTI never agreed to that designation and maintained it was not given enough time and resources to weigh in on and get information on how marine shipping could impact the environment, specifically the endangered Atlantic salmon population that migrates between the Bay of Fundy and the Bay du Nord area.
Ultimately, environmental lawyer Joshua Ginsberg said MTI’s participation was “incomplete,” and that the group’s requests for more information and communication were not met. He said groups not only weighed in during the official process, but they sent letters to Guilbeault and spent significant resources speaking to media and raising concerns specifically around emissions and the transport of oil.
Even though Bay du Nord, if financed and completed, will be hundreds of kilometres from land, Ginsberg said its effects would be felt far beyond the project area. The planet-warming greenhouse gas emissions from the project will know no borders, and if a spill were to occur, it would inevitably harm marine life. Ginsberg argues it is necessary to assess the impacts of marine shipping and what downstream emissions could mean for Canada’s climate goals.
There is no specific date set for a decision, but Federal Court Justice Russel W. Zinn noted “it may take some time” based on the volume of information.
Cloe Logan/ Local Journalism Initiative / Canada’s National Observer
Cloe Logan, Local Journalism Initiative Reporter, Canada's National Observer