Opponents tell court Bay du Nord was unlawfully approved

Opponents of Canada’s first deepwater oil project are urging the Federal Court of Appeal to overturn its approval, claiming it was unlawfully sanctioned and sets a harmful precedent for future offshore projects.

On Monday, lawyers on behalf of Sierra Club Canada and Mi'gmawe'l Tplu'taqnn Incorporated (MTI) — a group representing eight Mi’gmaq communities in New Brunswick – argued that the federal government’s approval of the Bay du Nord project failed to consider marine traffic caused by transporting oil, and Indigenous communities were not adequately consulted. Their initial case was dismissed in 2023, but Ecojustice staff lawyer Anna McIntosh says the groups believe the judge “reached the wrong conclusion.”

Having poor consultation and leaving marine shipping out of the decision-making process is concerning in the context of Newfoundland and Labrador’s lofty goal of doubling offshore oil production by the end of the decade, explained McIntosh. The groups say the federal government should reassess Bay du Nord after more thorough consultation and consideration of the concerns raised by MTI around the project’s potential impact on species such as Atlantic salmon, and the effect the approximately 78 annual oil tanker trips will have on the marine ecosystem.

Environment and Climate Change Minister Steven Guilbeault approved Bay du Nord in April 2022, determining the project “is not likely to cause significant adverse environmental effects.” Guilbeault based his decision on assessment information the project owner, Equinor, created outlining the potential impacts. That information, however, was later deemed complete by the federal Impact Assessment Agency.

In 2023, Equinor announced that Bay du Nord was being put on hold for up to three years partly due to cost increases, but last week, the company said it remains optimistic the project will move forward. 

Marine shipping is a key part of the proposed Bay du Nord project but wasn’t included in the assessment process, explained McIntosh. Without it, opponents argue that Guilbeault didn’t have the full picture when issuing his approval: oil will need to be transported from the facility, and with that comes considerable risks to marine life and the environment.

In court, Equinor lawyer Sean Sutherland stressed opponents had multiple missed opportunities to request that marine shipping be included in the assessment process and the currently uncertain destination of the oil from Bay du Nord “makes it impossible to assess marine shipping.” He also stressed that while Equinor has power over its oil platform, “once you've loaded oil onto somebody else's ship, this is not Equinor that is controlling things.”

McIntosh says the oil is set to go to one of two places — either directly to international markets or to a shipment facility in Placentia Bay on the coast of N.L. — and more information about routes would be available if marine shipping was included in the assessment process.

The impact of marine shipping blurs into concerns around Indigenous consultation, specifically with MTI. The group wasn’t aware marine shipping was excluded from the assessment process until 2020, and then they began commenting on it specifically, said McIntosh.

She points to a 2018 Federal Court of Appeal ruling which overturned approval of the Trans Mountain pipeline expansion because the National Energy Board's review of the proposal didn’t include the project’s impact on marine shipping. The court also concluded the government failed in its duty to consult with the Tsleil-Waututh Nation.

Addressing the case in court, Sutherland noted the Trans Mountain pipeline expansion is “right in the backyard of the Tsleil-Waututh Nation with a marine terminal…that is being increased in size and scale, that will lead to a certain class of tanker increasing by seven-fold,” while Bay du Nord is “500 kilometres from the shores of Newfoundland in international waters beyond Canada's exclusive economic zone.”

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. The Mi’gmaq communities represented by MTI stressed these risks threaten their constitutionally protected fishing rights.

In March 2023, 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, arguing “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 and get information on how marine shipping could impact the environment, specifically the endangered wild Atlantic salmon population that migrates between the Bay of Fundy and the Bay du Nord area.

“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,” Chief George Ginnish of Natoaganeg, co-chair of MTI, said before the initial hearing. “The federal government talks about having a comprehensive consultation process, but their actions on this file tell another story.”

In an email, the Impact Assessment Agency of Canada said 42 Indigenous groups, including MTI, were consulted during the federal assessment process. The agency said Guilbeault’s approval has legally binding conditions, which “include measures to protect air quality and human health, fish and fish habitat, migratory birds, species at risk and Indigenous peoples’ use of resources.” 

Agency spokesperson Curtis Lu said the assessment report produced by the agency was “based on scientific evidence and Indigenous and public consultation.”

As N.L. eyes more expansion of the offshore oil industry, it’s concerning for Indigenous communities to be excluded from the decision-making process based on not being near the project site, McIntosh explained. 

The project is notable in both its depth and distance from shore: Bay du Nord is set to be constructed about 500 kilometres east of St. John’s, Newfoundland, and drill to depths of about 1200 metres. In comparison, the province’s current offshore projects are in waters of 90 to 120 metres deep and Hibernia, which has been producing oil since 1997, is about 300 kilometres off the coast.