Case against Bay du Nord approval kicks off in Federal Court

Opponents of Bay du Nord, Canada’s first deepwater oil project, urged the Federal Court on Wednesday to overturn the approval of the project.

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.”

However, 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. The case states the project could harm the environment, was unlawfully approved and should be overturned.

Guilbeault based his decision on assessment information Equinor created outlining the potential impacts of Bay du Nord, which was then deemed complete by the federal Impact Assessment Agency. Opponents argue the company’s document is insufficient because it failed to consider the environmental impact of downstream emissions, which occur when oil is burned. They also say there was no consideration given to how marine shipping activity could impact the ecosystem.

In Ottawa, lawyers representing the environmental groups said the First Nations had voiced concerns about the project threatening Atlantic salmon, which are listed as “endangered” under Canada's Species at Risk Act. Oil produced at Bay du Nord would be transported by tankers through salmon migration routes and no modelling was done to chart the potential harm to wildlife or what the possibility of a spill could mean for the population, they said. They stressed these risks threaten their fishing rights, which are constitutionally protected.

“They limited a consultation process to suit their needs and the needs of the proponent but have failed to address how this project could negatively affect our rights. The federal government talks about having a comprehensive consultation process, but their actions on this file tell another story,” said Chief George Ginnish of Natoaganeg, co-chair of MTI, before the hearing.

The other core argument was emissions. Guilbeault’s statement about the environmental decision was posted with conditions, including a requirement that the project would be net-zero emissions by 2050. Lawyer Joshua Ginsberg said the government has a duty to consider the full impact of the project, and since downstream emissions are when the majority of greenhouse gases are released, they should have been included. Not doing so breaches the Canada Environmental Assessment Act, he argued.

Although the opponents are pushing for the approval to be overturned, Ginsberg clarified that a new assessment could be done with updated information on marine vessels, downstream emissions, and with proper consultation, but that the majority of Equinor’s environmental statement could remain and be reassessed.

Equinor’s lawyer Sean Sutherland wrapped up the day and requested the court dismiss the case. He said there were several opportunities to bring up concerns around shipping and downstream emissions.

In court documents from the opponents, they note “the review timelines and funding were inadequate” during the environmental assessment process and that “MTI did not have sufficient funding or engagement to review the project under its Mi’gmaq Rights Impact Assessment Framework.”

Equinor will continue arguing for dismissal on Thursday, and the Attorney General of Canada will present its arguments.