Pacific Northwest LNG is dead — what happens to court challenges now?

Last Tuesday, the chairman of the Pacific NorthWest LNG board, Anuar Taib, announced the cancellation of the PNW LNG development project. For those against the project, this news marks the end of a long battle. But for Richard Wright, a Gitxsan member involved in launching a court challenge against the project, the fight isn’t over yet.

Earlier this year, Charlie Wright, who considers himself the hereditary chief for the Gitxsan’s Luutkudziiwus wilp (house group), was among those who filed the court challenge. It’s against PNW LNG Limited, the Canadian Environmental Assessment Agency, the Minister of Environment and Climate Change, Her Majesty the Queen in Right of Canada and the Attorney General of Canada. They argue that the government “breached its constitutional obligations to consult” and that the environmental risks of the project were too great. Since the project is no longer happening, they’re now working on their next move.

“[PNW LNG’s legal counsel is] asking us to voluntarily withdraw our litigation because they’re saying the project isn’t going ahead any longer,” says Richard Wright, who serves as the spokesperson for the Luutkudziiwus. “We are saying: ‘No, no, no. The process has been flawed all the way through and we are here to address the flaws and that whole process.’”

However, in an email to Discourse Media, a spokesperson for PNW LNG wrote: “The decision to withdraw is up to the applicants. One of PNW LNG’s major accomplishments was the degree of cooperation reached with all of the area First Nations. The company holds the relationships it built with the area First Nations in high esteem and valued their feedback and suggestions throughout the project’s development.”

It’s difficult to know exactly what will happen to the court challenge now that the project is defunct. Wright hopes to overturn the order of approval that the federal government originally granted PNW LNG.

“The terminal site and the pipeline are still approved and [PNW LNG] could change their mind on an investment decision, or they would be able to sell it. So we certainly want to close that door,” explains Wright. PNW LNG did not respond to Wright’s claim.

Government agencies did not respond to requests for comment.

Courts will have final say

According to Dwight Newman, a University of Saskatchewan Professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law, many possible outcomes exist for Wright and the other cases related to PNW LNG.

“If the parties are seeking to proceed, then the court could still make a decision over whether or not it’s going to hear the case,” says Newman.

One likely possibility is that the courts could decide that, because the PNW LNG development is defunct, ongoing cases are moot. This would mean that the courts no longer believe a legal controversy exists, so it no longer matters if PNW LNG was authorized without adequate consent.

“Sometimes a court might decide that they’re still going to rule on the legal issues, even though there is no longer a live legal controversy,” explains Newman. “Or [the courts] could end up hearing [the case], but then end up writing a judgement that says they’re not going to decide the issue.”

“That would be worse for everyone — it would waste everyone’s time if they did that,” he adds.

Wright is hoping that, at the very least, the judge will demand that the defendants reimburse some of Luutkudziiwus’s legal fees.

“We would have stood to gain a big settlement from all of this litigation and now, at minimum, we’re going to be fighting in the court system just to recover the majority of our legal costs that we’ve already put out,” explains Wright.

Newman says that when legal cases conclude, it’s standard practice in Canada for losing parties to pay at least a portion of the winning group’s legal fees. But, if the courts decide to throw away cases regarding PNW LNG, it will also be up to them to determine whether any parties involved deserve to have legal fees reimbursed.

“And court might decide that the legal issue should still be adjudicated, even if they don’t have a practical result right now,” adds Newman. “If so, then it might be that it wouldn’t have any effect on a cost order.”

As far as next steps go, Wright says that his team is “definitely tied to litigation”; they are rejecting requests to voluntarily withdraw their court case.

“It’s been three years of our time and energy. Look at the impact to our community, the division [PNW LNG] has created within the families of our community,” shares Wright. “We are not prepared to let them off lightly.”