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A case arguing that Bay du Nord, Canada’s first deepwater offshore oil project, was unlawfully approved was dismissed by the Federal Court last week.

While the decision comes as a disappointment to opponents of the project, national programs director at Sierra Club Canada Gretchen Fitzgerald said recent news that Bay du Nord has been put on hold for up to three years partly due to cost increases proves that the project is economically risky.

“After the last few weeks of climate fires across the country, we are more determined than ever that this project should not proceed. With every new barrel of oil we pump up and burn, the effects of exceeding safe climate limits — like forest fires and heat waves — get worse. We know we have a few short years to cut climate pollution,” she said.

“The courts have failed us this round, but we and our members and allies plan to use the precious months ahead to protect our ocean and climate from this terrible project.”

The financial and market risks “will not go away,” added Colleen Thorpe, executive director of Équiterre.

In March, 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 Environment and Climate Change Minister Steven 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, which happen when the oil is burned, and the potential effects marine shipping activity could have on the environment and Mi'kmaq rights.

In the decision, issued by Justice Russel Zinn, he said it isn’t the court’s job to decide if approving Bay du Nord “was wise or in keeping with Canadian policy objectives.” Rather, he said the court looked at if the decision was reasonable, “not whether it is the right decision.”

The groups leading the case said they are “exploring whether to appeal this decision to ensure the impact of Bay du Nord will be properly scrutinized before this project can move forward.”

In March, 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.

Even with the dismissal, Dean Vicaire, executive director of Mi'gmawe'l Tplu'taqnn Incorporated, said: "The government needs to know that they have to do better consulting with Indigenous Communities." #BayDuNord

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.

Even with the dismissal, Dean Vicaire, executive director of MTI, said the group doesn’t regret joining the court case.

“The government needs to know that they have to do better consulting with Indigenous communities. We still have concerns with the Bay du Nord development and will watch this project closely,” he said.

“We will do what we can to protect the Atlantic salmon from any effects this project may have on their migration and numbers.”

In response to the decision, Ola Morten Aanestad, spokesperson for Equinor, said they welcome the ruling.

"Bay du Nord is an important project in Equinor’s portfolio and our current focus is to optimize the development following a recent internal postponement decision," said Aanestad in an email.

Canada's National Observer reached out to Environment and Climate Change Canada for a statement – the department said it is not commenting on the judgment.

Updates and corrections

| Corrections policy
June 21, 2023, 08:40 pm

This article has been updated to include comments from Equinor.

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