GNWT, Indigenous governments intervene over Imperial assessment

Multiple Indigenous governments have filed paperwork telling a regulator it should proceed with an environmental assessment of Imperial Oil’s Norman Wells facility over Imperial’s objections.

The Tłı̨chǫ Government, Délı̨nę Got’ı̨nę Government and a committee of Fort Good Hope leaders said the ability to refer a project to environmental assessment – as the Sahtu Secretariat did with Imperial’s facility in September – is a treaty right that Imperial cannot contest.

The GNWT, however, said an environmental assessment referral was “premature.”

Imperial has asked regulator the Mackenzie Valley Review Board to reverse course and shut down the assessment process that the Sahtu Secretariat triggered.

The oil company argues that the Supreme Court of Canada has ruled environmental assessments are designed to study proposed developments, not existing operations like Norman Wells, which has been an oil field for a century.

Imperial and the Sahtu Secretariat, or SSI, disagree over the extent to which two regulatory filings from Imperial in the past year represent business as usual, or whether they would mean significant alterations.

The outcome of this process could affect how long the oil field operates, with economic and environmental consequences for Norman Wells and the Sahtu.

The oil field is expected to have five to 10 years of life left. The secretariat, which represents Sahtu Dene and Métis, has questioned whether continued operation of the oil field is worth the environmental risk at this point in its life cycle.

A second, separate environmental assessment is under way for a project known as Line 490 that would replace some pipelines connecting islands in the Mackenzie River and help Imperial access more oil in Norman Wells. Imperial has not challenged that assessment.

Treaty right ‘paramount’

Federal legislation gives the Sahtu Secretariat a broad right to refer developments to environmental assessment.

Imperial, however, argues that some of the same legislation means an assessment of the whole Norman Wells facility cannot happen.

Imperial says:

• Norman Wells isn’t a “proposal for a development” since it already exists, so an assessment shouldn’t happen;
• the environmental assessment process doesn’t apply to projects that held licences prior to 1984 unless a “significant alteration” is contemplated;
• an assessment would duplicate regulatory proceedings that were already happening; and
• Imperial wasn’t given any chance to make representations.

In regulatory filings that respond to Imperial, the Tłı̨chǫ Government said: “Even if it could be successfully argued that Imperial Oil’s proposal did not reach the threshold of a significant alteration to the project, the treaty right does not require that such a threshold be met.”

The Tłı̨chǫ Government said that treaty right is paramount and “takes precedence over legislation,” including in the field of how projects are treated “that would otherwise be exempt.”

The K’ahsho Got’ine Committee, representing Fort Good Hope, said it shared the Sahtu Secretariat’s view that “the ongoing operations constitute a significant alteration” at Norman Wells.

“The K’ahsho Got’ine Committee respectfully requests that the review board respect SSI’s referral authority, dismiss Imperial’s request for ruling and continue with the environmental assessment for the overall operations,” the committee wrote.

The Délı̨nę Got’ı̨nę Government argued in part that Imperial cannot complain about procedural fairness in a process where a treaty right is being exercised.

“It should not be open to a proponent to challenge the manner in which the Indigenous parties to a modern treaty exercise their treaty rights on the basis of procedural fairness owed to the applicant for a development proposal, particularly when the exercise of the right is in order to better protect their rights from the impacts of the proposed development, and in furtherance of the constitutionally protected duty to consult owed to Indigenous peoples,” the DGG wrote.

Assessment would be ‘premature’

The GNWT took a different position.

The territory government argued that some procedural steps need to take place before the Sahtu Secretariat can refer the whole facility to environmental assessment.

According to the GNWT’s interpretation of the law, regulators must first decide whether Imperial’s plans for the Norman Wells facility are exempt from preliminary screening – an initial step in the regulatory process.

The review board “should rule that SSI’s referral to environmental assessment is premature,” the territory concluded, and let other regulators do more work first.

The GNWT’s interpretation would allow the assessment to be picked up again at a later date depending on the outcome of preliminary screening.

What SSI says

The Sahtu Secretariat has filed a response of its own after Imperial challenged its referral.

The secretariat says the review board can’t go back on the decision it already made to start an assessment, and the secretariat’s treaty rights should prevail over other concerns.

SSI says it would be “unfair” and “unconstitutional” for the review board to go back and reconsider starting an assessment “where the issue has already been determined and where Imperial seeks to abridge SSI’s constitutional right.”

Finally, SSI accuses of Imperial of using a lawyer not properly registered in the NWT to file its documentation.

Imperial has said it is considering taking the Sahtu Secretariat’s environmental assessment referral to court if the review board doesn’t find in its favour and shut down the assessment.

The company is expected to file its own view of the GNWT and Indigenous government responses in the coming week.

The federal government is the other intervenor to have filed. In a one-page letter, Ottawa expressed no firm opinion.