Newsletter: Ksi Lisims LNG files project details

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The Ksi Lisims LNG project, led by the Nisga’a First Nation, has filed its initial project description with federal and BC regulatory authorities.

Among the points made:

  • At full build-out, the floating project will produce up to 12 million tonnes per annum of LNG, with an expected life of at least 30 years.
  • “The proponents are designing the project to be one of the lowest carbon-emitting LNG export projects in the world, targeting to be Net Zero within three years of operations start-up.”
  • “The project will be an important component in the Nisga’a Nation’s social development strategy, providing extensive opportunities for jobs, training, and new businesses to be formed, both during construction and operation.”
  • “Many other Indigenous communities in the region and across the interior of BC will benefit from the economic development of the Project and the associated pipeline. In addition, the Project is working to develop opportunities for Indigenous community equity participation in the pipeline.”
  • “In Asia, coal and oil currently supply over 70% of primary energy demand. Replacing coal with LNG exported from the Project results in a reduction of global carbon emissions by over 45 million tonnes per year, or 1.3 gigatonnes over a 30-year period, which is equivalent to offsetting nearly two years’ worth of total carbon emissions from Canada.”
  • “At a provincial level, the Project will generate significant revenue and direct and indirect jobs and businesses opportunities. Combined property, carbon and other non-income tax payments will generate approximately $3 billion over a 30-year period. The direct and indirect economic impact from the Project is estimated to generate an additional $35 billion over the same period.”

Here’s the full project description document

Video: interview with Nisga’a President Eva Clayton

 Blueberry River case: legal perspectives

The big court win on treaty rights by the Blueberry River First Nations in BC, Yahey v. British Columbia, was so important that lawyers across Canada took a special interest in it.

The Toronto-based Torys LLP law firm, for one, noted: “This precedent-setting decision marks the first time a Canadian court has found an infringement of Indigenous Treaty rights, as the result of the cumulative effects of various government policies and permitted projects over decades, rather than as a result of a specific action or project.”

Torys added: “This is the first case where a Court has found infringement of section 35 (of the Constitution Act, 1982) rights on the basis of cumulative effects. It has potentially significant implications, including on future cumulative-effects litigation and the discharge of the duty to consult.”

The national law firm of McCarthy Tétrault LLP wrote: ‘The decision underscores the need for governments to ensure that there are robust frameworks for addressing cumulative impacts on Aboriginal and treaty rights, which is not something that can be adequately addressed in individual project reviews.’

And it added: “The BC Supreme Court’s ruling will inevitably draw the attention of Indigenous groups, governments, and industries across the country to the opportunities and risks of ‘cumulative effects’ claims, which may create further uncertainty for project approvals in Canada. Many will be closely watching as the appeal deadline of July 29th approaches, and how the province responds to the significant criticisms raised with respect to its current approach to addressing cumulative impact issues.”

From the MLT Aikins Indigenous practice group lawyers in Western Canada:  “The failure of project-specific consultation and the related regulatory regimes to grapple with the cumulative impacts on Treaty and Aboriginal (rights) has long been a sore point for Indigenous rights-holders. This case is one of the few to provide guidance on this question and will no doubt have reverberations across the country.”

Blake, Cassels & Graydon LLP, with offices in Canada, New York and London, said in a special bulletin: “The evidence also demonstrated that the Province had been aware of Blueberry’s concerns with respect to cumulative effects since at least 2012 and had made no meaningful attempt to address Blueberry’s concerns. In fact, the Court found ‘a persistent pattern of redirection on the part of government officials’ in response to these concerns.”

First Peoples Law LLP:Yahey stands as a sharp reprimand to provincial governments. The court confirmed that the provinces do not have an unfettered right to take up treaty lands and that treaty infringement lies on a spectrum. Consequently, governments may be liable for treaty infringement when they authorize development that significantly diminishes the First Nation’s ability to exercise a treaty right and long before the “no meaningful right” threshold is reached.”

The Blueberry win was, according to the count kept by lawyer Bill Gallagher, the 315th court victory by First Nations on land and treaty rights. (No. 316 came a week later, when the Supreme Court of Canada ruled that $30 million was not enough compensation for flooded reserve land of the Lac Seul Nation in Ontario.)

Outreach event July 28

Our next Outreach event is on Wednesday July 28, noon to 1:15pm PDT. Please join us then for an online discussion on governments and reconciliation. It’s free, and open to all. Info/register  (This is the event that had to be postponed from July 18.)

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