20230128-Clore River flood-David Suzuki Foundation

‘No excuse’: feds withheld key information when a Coastal GasLink site flooded

Documents reveal Fisheries and Oceans Canada was aware of numerous issues at a pipeline construction site on Wet’suwet’en territory but did not disclose information to concerned organizations or the media

In late January 2023, Coastal GasLink submitted a routine report to the federal government. The document was a weekly description of progress on the company’s construction of its gas pipeline through a Wet’suwet’en river, filed with Fisheries and Oceans Canada.

The report, obtained by The Narwhal through freedom of information legislation, detailed recent site activities and included a list of issues that came up during construction. That week, events at the river crossing had taken a serious turn. 

“Clore River water levels increased to the extent that the pumps and intakes installed could not cope with the increased flow,” the report stated. “This event [culminated] with the river isolation being overwhelmed and the work site becoming inundated with water to the extent that works … could not continue.”

In plain language: the construction site flooded. A series of grainy photos attached to the document show equipment and infrastructure half-submerged in icy water, frozen in the path of the river, known to the Wet’suwet’en as Lho Kwa.

As the federal government reviewed the fossil fuel company’s reports, it did not disclose the information it received to members of the public. 

The Narwhal reviewed hundreds of pages of records and conducted numerous interviews with involved parties to piece together a pattern of conduct by the federal government that continually failed to provide complete information to the media, concerned organizations and Indigenous leaders. Its lack of transparency around the incidents at the Coastal GasLink crossing of Lho Kwa suggests government secrecy around the impacts on salmon populations, a resource that Indigenous and non-Indigenous communities throughout northwest B.C. rely on for food security, economic benefits and cultural well-being.

Jeffrey Young, senior science and policy analyst with the David Suzuki Foundation, said the federal department, commonly referred to as DFO, has an obligation to the public to be open and transparent.

“I think transparency is a basic responsibility of any government to the people it’s representing,” he told The Narwhal in an interview. “And when you have such a clear responsibility and a clearly defined law, there’s no excuse.”

Public forced to use freedom of information legislation to get answers from DFO

In early 2023, The Narwhal reached out to the federal government for clarity around alleged issues with the Clore River crossing. In a response sent on Feb. 3, just a few days after the flooding of the site, Fisheries and Oceans Canada did not mention the flooding incident.

Referring to an earlier allegation of issues with sediment and erosion control, a problem that plagued pipeline construction since it began in 2019, the agency said government officials had visited the site and were “assessing the data to determine compliance with the Fisheries Act.”

Around the same time, Shannon McPhail, executive director of Skeena Watershed Conservation Coalition, was asking Fisheries and Oceans Canada and its provincial counterparts for information about the river crossing, concerned the company wasn’t doing enough to protect salmon habitat. 

On Jan. 5, 2023, Brenda Rotinsky, a senior official with the federal department, told McPhail they were working to address her concerns.

“I haven’t forgotten to reply!” Rotinsky wrote in an email. “We are trying to get some answers to your questions from [Coastal GasLink] so that you have the most up to date information and they have been difficult to reach over the holidays. You should hear back from us next week on what we know so far.”

McPhail never received another email from the department about the issue.

“Maybe their standard operating procedure is to evade reasonable questions long enough that people just give up,” she said in an interview. “Except that I haven’t given up. I just know that I can’t go to the very department responsible for protecting fish. You have to laugh, otherwise you’re just going to cry because it is so ridiculous.”

Fisheries and Oceans Canada did not explain why no one followed up as promised. The department also did not specify why it said it needed to discuss with the fossil fuel company before answering McPhail’s questions.

Aerial view of excavators working at a Coastal GasLink river crossing on Wet'suwet'en territory
Prior to the major flooding event reported to DFO, Wet’suwet’en officials flew to the Coastal GasLink worksite and alleged the company failed to prevent sediment from entering the river. Photo: David Suzuki Foundation

Young said while the agency may have valid reasons to hold back some technical information if it is pursuing legal enforcement, the public should not be forced to use freedom of information legislation to answer basic questions about events that affect the health of a watershed.

“There could have and should have been clearer communication than what has been provided,” he said. “They should be open and transparent about what they’re seeing and what they’re doing about it — how they’re going to address the issue.”

After reviewing the recently released report and other documents obtained through freedom of information legislation, The Narwhal asked Fisheries and Oceans Canada why it did not disclose the information at the time, despite the relevance of questions submitted to its media department and similar questions asked by McPhail and others. 

The government agency did not answer. 

McPhail said she’s lost all faith in the federal department and its provincial counterparts.

“That project was under a global microscope,” she said. “That was the opportunity for our regulators to showcase their skills. Instead, what they showcased is that we’re fucked with any project that the DFO and the BC Energy Regulator has any decision-making or regulatory power over.”

Fisheries and Oceans Canada did not comment prior to publication and the BC Energy Regulator referred The Narwhal to its previous responses to other reporting.

Young said the Fisheries Act is very clear and equips the federal government with solid legal powers to protect species like salmon — but it only holds up if it’s being properly used to prevent impacts to fish habitat, or dole out consequences for violations of the law.

“It has a certain level of clarity that is often lacking in law,” he explained. “It’s referred to by the government itself many, many times in terms of how Canada has strong environmental standards when it’s promoting itself around the world. Those claims are only true if it’s enforced.” 

“In my view, we’re getting to a place where legal accountability around DFO and the federal government’s responsibilities to salmon in the implementation of the Fisheries Act is in question,” Young said.

TC Energy and federal officials at DFO only disclosed partial information

A few weeks before TC Energy, the Calgary-based company building Coastal GasLink, informed the federal department of the flooding incident, Wet’suwet’en monitors had visited the site and alleged the pipeline company had failed to protect fish habitat, raising concerns declining salmon and steelhead populations in the watershed were being negatively impacted by construction activity. Receiving little response from provincial and federal authorities, Wet’suwet’en officials revisited the river on Jan. 28.

“We walked along the riverbank downstream of the work site and you can see a band of dark mud deposited as the water level dropped,” Gary Michell, Wet’suwet’en fish and wildlife monitor, said in a statement at the time. “That sediment presents significant risks to salmon and steelhead eggs downstream.”

Layers of snow along the banks of the Clore River show sediment
Wet’suwet’en officials documented high amounts of sediment downstream of the Coastal GasLink river crossing on Jan. 28, 2023. Photo: David Suzuki Foundation

Days before the construction site flooded, a TC Energy contractor representing the pipeline project sent an email to federal fisheries officer, Ian Bergsma, noting “Coastal GasLink has identified turbidity events at Site 616 (Clore River) and Site 714 (tributary to Hirsch Creek) over the past couple of days.”

The notification foreshadowed the events to come. As temperatures around the region fluctuated, flip-flopping between around five degrees above freezing to 20 below in a matter of days, the ice upriver became unstable and the pipeline that was being built right through the waterway stood directly in harm’s way. 

On Jan. 30, Bergsma sent an email to senior Fisheries and Oceans Canada officials, telling them he spoke with a pipeline representative that morning “about the Clore River crossing.”

“Loss of isolation occurred on Friday night … resulting in the dewatered area being flooded and subsequently frozen over,” he wrote. “Water levels rose again yesterday despite freezing conditions — they suspect that an ice jam on a tributary stream broke loose resulting in further elevated water levels.”

Meanwhile, TC Energy, the Calgary-based company building the 670-kilometre pipeline, described the unfolding situation as an intentional part of construction activity.

“To manage the rise in water levels due to higher temperatures last week, we initiated a temporary overflow of our barrier at the Clore River yesterday,” the company wrote in a public statement on Jan. 30.

It is not clear why TC Energy failed to tell the public last year that its site had flooded but critics say it was trying to downplay environmental damage at the site. The report obtained by The Narwhal described the events in detail.

“Warm weather conditions caused ice sheets to slump into the channel, impounding flow, causing ice sheet movement, sloughing and scour at the sump head walls,” the document said. “An extended period of warm weather accompanied by moderate rain resulted in an eventual release of flow from an upstream obstruction. This caused a rapid rise of flow. Ongoing high flows and rapid decrease in temperature caused pump screen freezing.”

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TC Energy told The Narwhal the public statement was a description of emergency mitigation measures, not the flood itself. The barrier mentioned was a dam set up to temporarily redirect the river around the pipeline crossing. After the site was flooded, the pipeline company worked to clean up and remove equipment before letting the river run its natural course until the high waters receded. 

“As we stated in late January last year, we initiated a temporary overflow of our barrier at the Clore River in response to rising water levels due to high temperatures in the region,” a spokesperson wrote in an email. “This flood contingency measure was used to mitigate impacts to the riverbed and bank that would have otherwise occurred in an uncontrolled overflow.”

Fisheries and Oceans Canada did not directly answer a question about whether the department independently confirmed the cause of the flooding nor whether officials had assessed the adequacy of protective measures prior to the incident.

In an email, the spokesperson shared a graph showing hydrometric data, noting “the flooding in late January 2023 was the result of high flows due to an unseasonably warm/wet precipitation event affecting the watersheds.”

The spokesperson added the department worked with TC Energy “for many years prior to construction to assess the stream crossings and methods used to avoid and minimize impacts of the pipeline to fish and fish habitats.”

Feds still investigating incident, despite Coastal GasLink completion

Government agencies subsequently concluded the pipeline company was meeting the conditions of its permits and staying in compliance with environmental laws at the river crossing. An internal government document drafted in March noted the BC Energy Regulator was satisfied Coastal GasLink’s “watercourse crossing activities at the Clore River have been conducted in accordance with regulations and conditions specified in [its] permit.”

That document, a briefing note prepared for B.C. ministers Josie Osborne and George Heyman, noted the existence of a series of agreements between the provincial regulator and other government departments, including the federal fisheries agency.

“There is a memorandum of understanding between the [BC Energy Regulator and Environmental Assessment Office] (as well as other agencies, including the DFO) that addresses aspects of compliance and enforcement between regulatory agencies,” the note stated.

Fisheries and Oceans Canada told The Narwhal the briefing note is not accurate.

“There are no formal agreements between DFO and the BC Energy Regulator,” a spokesperson with the federal department wrote in an email.

Young said regardless of whether there is a formal agreement, the federal government “deferred” its powers to provincial authorities on the Coastal GasLink project.

“Fisheries and Oceans Canada has a key responsibility here,” he said. “It’s the Fisheries Act that ultimately has the key powers to protect rivers and salmon from these impacts.”

“When problems do arise, they may be hesitant to fully apply their authority, because it becomes a federal-provincial jurisdictional type of issue or more of a political issue,” he added. “And that’s a problem.”

When The Narwhal initially pressed Fisheries and Oceans Canada for clarity around its involvement, the department told The Narwhal it was investigating the allegations and could not comment. Nearly a year later, the federal agency said it is still conducting its investigation.

“Conservation and protection investigations are complex and can vary widely in the length of time they take to conduct,” a Fisheries and Oceans Canada spokesperson told The Narwhal. “Any investigation involves a great deal of research, often including voluminous amounts of technical information and authorizations, other documentation, collection of evidence, samples, photographs and gathering of any pertinent witness statements. All are necessary to build a case to submit as a potential violation to the Crown, who then decide whether charges will be laid.”

TC Energy announced in November the Coastal GasLink pipeline was mechanically complete. Gas is set to start flowing to the LNG Canada liquefaction and export facility in Kitimat, which will commence its startup operations this year.

LNG Canada, with the Douglas Channel and Rio Tinto behind
As DFO continues to investigate, Coastal GasLink is now complete and the pipeline is poised to start transporting gas to LNG Canada in Kitimat, where it will be liquefied and shipped overseas. Photo: Marty Clemens / The Narwhal

McPhail said the fact that the pipeline was completed before the results of the investigation were finished sends a message to companies like TC Energy. 

“Industry can look at this and laugh and say, ‘Look, we can break all the laws we want and we’re gonna get it done long before they get their investigation done — and 99 per cent of the infractions that we commit aren’t going to result in anything that’s going to cause our project any harm.’ ”

Young said while he’s hopeful an investigation will still lead to charges, the federal agency’s failure to prevent the pipeline project from damaging fish habitat over the past few years “is a problem in and of itself.”

“It does raise an extra question about how much faith we should be putting in the federal government that they’re doing some sort of thorough behind-the-scenes science-based investigation that will lead to good enforcement outcomes,” he said, adding a “political compromise” could be an alternate outcome. 

“The Fisheries Act is extremely clear,” he added. “And when it’s clearly violated, it needs to be clearly enforced.” 

According to the Fisheries Act, violations of the legislation can lead to fines up to $500,000 or “imprisonment for a term not exceeding two years,” or both. 

The spokesperson did not provide an update on whether or when it will submit any evidence.

Updated Jan. 15, 2024, at 8:59 a.m. PT: This story has been updated to include an additional response from Fisheries and Oceans Canada.

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