

VANCOUVER — A federal panel tasked with reviewing the Northern Gateway pipeline project failed to take into account the serious threat oil spills and increased tanker traffic pose to humpback whales, says an environmental lawyer.



ForestEthics Advocacy, Living Oceans Society, Raincoast Conservation Foundation and B.C. Nature are part of a Federal Court of Appeal challenge arguing the government erred in granting approval to Calgary-based Enbridge (TSX:ENB) for the controversial, $7-billion megaproject.



Barry Robinson, a lawyer for three of the four environmental groups, told the court in Vancouver on Monday that the review panel's failure to consider Canada's official recovery strategy for humpback whales negates the federal government's approval.



"The final humpback whale recovery strategy was added to the Species At Risk public registry on Oct. 21, 2013," said Robinson, which was two months before the panel issued its 209 recommendations.



As of that date, the Joint Review Panel — the independent body mandated by the National Energy Board to assess the environmental effects of the project — was required to take that document into consideration, he added.



"They seem not to have understood that obligation," Robinson said, referring to panel members.



The federal government issued its approval in June 2014.



The proposed, 1,200-kilometre twin pipeline would carry bitumen between the Alberta oilsands to B.C.'s coast for export to foreign markets. Enbridge estimates the project would boost Canada's gross domestic product by $300 billion over 30 years.



The court is considering a total of 18 legal challenges from First Nations, environmental organizations and a labour union. The hearing is expected to conclude on Thursday.



Raincoast's Misty MacDuffee said a bump in tanker traffic increases the likelihood of fatal collisions with whales and underwater noise seriously interferes with feeding and communication.



"The waters between Kitimat and Hecate Strait, where Enbridge wants to put its tankers, are critical feeding grounds," said MacDuffee, speaking outside the court on Monday.



"As a (species at risk), Canada is obligated to protect habitat that is critical to the survival and recovery of humpback whales."



The push to have the court overturn the approval goes beyond opposition of this project and could set a pattern for all future pipelines, said lawyer Karen Campbell, co-counsel with Robinson for the environmental groups.



"If they continue with processes that are increasingly geared toward facilitating approval then we're going to see more and more cases in court," said Campbell. "We're hoping that we can stop that by getting a good precedent out of this case."



Joie Warnock with Unifor, which made its argument in court later on Monday, said the labour union does not oppose pipelines but takes issue with a faulty approval process that she describes as "rigged from the beginning."



"The playing field was never level between the powerful interests between foreign oil companies and those working Canadians who have concerns that need to be addressed," she said.



Laura Estep, a lawyer for Northern Gateway, capped off the day's proceedings by arguing that neither the environmental groups nor Unifor should be granted standing as applicants in court because they aren't directly impacted by the project.



She took particular aim at ForestEthics, which she described as part of a "well-funded and co-ordinated network of U.S. and Canadian non-governmental organizations."



"It is seriously questionable whether ForestEthics is genuinely interested in the specific issues that are before the court and more likely that this litigation is just part of a strategy aimed at its broader anti-oilsands objectives," said Estep.



Eight First Nations argued in court last week that the federal government violated its duty to consult and accommodate aboriginal bands before approving the pipeline.



Northern Gateway is expected to continue its legal arguments on Tuesday.



Geordon Omand, The Canadian Press

Story updated on Oct. 6 at 8:42 am EDT

Note to readers: This is a corrected story. A previous version contained an incorrect spelling of Misty MacDuffee's name.