On April 16, 2014, the B.C. government was forced to rescind a controversial piece of legislation just two days after it came into force.

The slap-dash rule in question exempted proposed natural gas plants from undergoing environmental assessments.

It was a change fossil fuel companies and major donors to the then-ruling BC Liberals had been clamouring for as they ramped up drilling and fracking for natural gas in the northeast of the province.

Yet 48 hours after the exemption was put in place through an Order in Council, B.C.’s Environment Minister, Mary Polak, was forced to issue a mea culpa that hinted at an embarrassing lack of consultation with First Nations.

Nearly five years later, the events surrounding Polak’s jaw-dropping turnaround are worth revisiting in light of the current government’s overhaul of B.C.’s Environmental Assessment Act — the same piece of legislation that Polak so ill-advisedly set out to change.

Internal documents show industry request for exemption

Thanks to documents the Fort Nelson First Nation obtained through a Freedom of Information request, we know more about what happened back in Polak’s day.

Those documents clearly show that Canada’s preeminent fossil fuel industry lobby organization — the Canadian Association of Petroleum Producers — wanted the change that Polak signed into law.

A slide from a CAPP presentation to the B.C. government. The industry lobby group recommended certain gas plants be eliminated from provincial environmental assessments.

So did Encana Corporation — one of the province’s top natural gas producers and a substantial political donor, primarily to the BC Liberals but also to the NDP.

With the stroke of her pen, Polak formally ended the requirement that “upstream” natural gas processing plants must undergo provincial environmental assessments.

The change paved the way for speedy approval of such plants, of which Encana was known to want to build three. The plants, now built, owned and operated by Veresen Midstream LP, were designed to take raw gas from the growing network of drilled and fracked natural gas wells in northeast B.C., strip the gas of valuable liquids such as condensate, and then send the processed gas on its way to customers.

The same documents also show that Polak’s staff and others in government knew that what they were doing would be vigorously opposed by First Nations, whom they had pointedly failed to consult.

Fort Nelson First Nation not consulted on exemption

When the Fort Nelson First Nation found out, it was furious.

Making matters worse for Polak and her cabinet colleagues, the First Nation was scheduled to host an “LNG Summit” only two days after the regulatory change came into effect.

The matter quickly blew up in the government’s face, forcing Polak to rescind the regulatory change on April 16, 2014.

“Our government is committed to a strong, respectful and productive relationship with First Nations,” Polak said in a prepared statement. “That is why we will rescind the amendment that would have removed the requirement for an environmental assessment…”

That same day, Fort Nelson First Nation Chief Sharleen Gale stood on the stage at the LNG Summit and asked provincial government delegates in attendance to leave the hall.

Video of the meeting shows those delegates walking out of the hall to the steady beats of a line of First Nation drummers.

This screenshot of internal government e-mails shows Laurel Nash distributing a draft message to Fort Nelson First Nation chief Sharleen Gale in advance of the government’s decision to rescind gas plant exemptions.

An internal e-mail shows government official Cory Waters, a liaison between First Nations and LNG projects for the B.C. Environmental Assessment office, was concerned the natural gas plant exemption was coming into effect just two days before an LNG Summit, hosted by the Fort Nelson First Nation.

Meanwhile, behind the scenes, provincial officials tried to lessen the damage by writing to Gale.

A draft of the letter, contained in the FOI package released to the Fort Nelson First Nation, was written by Laurel Nash, then-chief negotiator for B.C.’s LNG and Strategic Initiatives in the Ministry of Aboriginal Relations.

“We take full responsibility for not engaging with you on this change or even advising you that it was going to occur prior to making the public announcement. This is not how we want to work together now and in the future,” stated the letter, which circulated in four different government ministries as well as the provincial Oil and Gas Commission.

An internal e-mail shows former B.C. deputy minister of the environment arranging a call to discuss managing the reaction of Treaty 8 First Nations, referred to as “T8” in this message, in advance of the government’s announcement to exempt proposed natural gas plants from environmental reviews. The Fort Nelson First Nation was not consulted on this exemption.

Exemptions quietly continued

But if anyone thought this signalled a change in direction, they were mistaken.

Polak may have been forced to backtrack, but she and her cabinet colleagues fully intended to continue exempting natural gas plants from environmental assessments, thereby saving the likes of Encana undisclosed amounts of time and money.

How do we know this?

Because Encana built not one, not two, but three massive gas processing plants in a row in northeast B.C. and each one of them was exempted from assessments.

The first of those plants — the Sunrise plant — was the largest of its kind built in western North America in 30 years. It was exempted from assessment shortly before the government’s short-lived regulatory change was made.

Then two other plants — the Saturn and the Tower plants, both of which are of a similar scale to the Sunrise plant —  were subsequently exempted by the B.C. Environmental Assessment Office after Polak was forced to back down and rescind the regulation.

These approvals happened despite the fact all three plants gobbled up land in B.C.’s allegedly protected Agricultural Land Reserve, and over the objections of local First Nations who were alarmed by the “cumulative” threats posed by multiple energy industry developments in their territories.

Political priorities reflected in regulator’s rulings

What the province failed to achieve by the blunt force of scrapping the regulation all together, it achieved through the back door.

Under Environmental Assessment Office rules, any company building a “major” or “reviewable” project can request that the office waive the requirement for a formal assessment. More paperwork is involved than if the regulation didn’t exist, that’s all.

Encana asked three times to be exempted, and each time its wish was granted.

Those decisions did not happen in a political vacuum. The FOI record clearly shows that the government of the day was committed to getting those gas plants built with no environmental assessments getting in the way.

Current B.C. government upholding back door exemption

This is the legacy that the current government inherited.

It knows that allowing the Environmental Assessment Office to retain broad discretionary powers to exempt major projects from formal environmental assessments is an affront to the very idea of free, informed prior consent — a cornerstone of the UN Declaration on the Rights of Indigenous Peoples, which the current government has sworn to uphold.

The problem with exempting major projects from environmental assessment

Unfortunately, the government’s recent revisions to the Act would see the Environmental Assessment Office retain the same sweeping discretionary powers as before, with the only caveat being that if the office recommends a project be exempted from review, then the minister would have to sign the actual exemption order itself.

This minor change marks a tiny step forward by placing the onus on the minister, but it is hardly one that should comfort First Nations or the general public.

All major industrial projects have environmental impacts.

We have a law in place that’s supposed to ensure a modicum of environmental protection by requiring that all such projects are assessed before being built. When governments allow — or indeed encourage — one industry to get around such rules, we have a problem.

The cleanest way to resolve that problem is to end the Environmental Assessment Office’s discretionary powers to exempt projects. No exceptions.

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This piece also appeared on Policy Note, for the Canadian Centre for Policy Alternatives.

On an April morning in 2014, members of the Fort Nelson First Nation tucked into a helicopter to begin a day of flying to fossil fuel company operations in their territory.

The Nation’s lands are part of the expansive Treaty 8 territory that includes northeast British Columbia. A professional biologist from Fort St. John was in town and had invited employees with the Nation’s (FNFN) Lands department along for the ride.

For the rest of the day, the biologist and FNFN members flew to well pads where companies drill and frack for natural gas. They looked at roads and pipeline corridors cut through the region’s black spruce forests, muskeg and wetlands. And they paused beside massive pits excavated from the earth to store toxic wastewater from the fracking process.

At each site, the biologist, who was conducting a first-of-its kind audit of fossil fuel company operations, took notes.

The audit marked a critical milestone in a little-known “recovery” plan developed a few years earlier by B.C.’s then environment ministry. The ministry was required to devise the plan because the region’s boreal caribou herds were in trouble. Fourteen years earlier, the federal government had formally listed the species as “threatened” across the country.

A cornerstone of B.C.’s plan was that natural gas companies would have to follow a suite of modest new rules known as “interim operating practices” (IOPs). An audit would determine whether or not the companies were in compliance.

Adhering to the rules would be essential if the caribou were to have even a fighting chance of survival. That’s because the plan itself accepted as given that the fossil fuel industry would proceed largely unchecked for the next half century. At that point, the region’s already threatened caribou would be so further decimated that two thirds of their number would be gone. Presumably only then, after the companies had essentially fracked every ounce of gas out of the region’s vast gas-bearing, shale rock formations, would the real recovery work begin.

Not long after the helicopter tour, the biologist (Dan Webster) delivered the audit to B.C.’s Oil and Gas Commission (OGC). The OGC largely funded the study and is the agency that regulates fossil fuel industry activities in B.C.

For the next four years, the OGC kept the audit’s findings hidden, never disclosing them to the general public or, more importantly, to the FNFN whose members were most directly affected.

“FNFN never received the audit even though the [Nation’s] Lands Department requested a copy of the final documents,” Chief Harrison Dickie said.

But the FNFN now has the audit, thanks to someone sending it in an unmarked brown envelope to the B.C. office of the Canadian Centre for Policy Alternatives, which subsequently alerted the Nation of its contents.

It’s no surprise, given the circumstances of the audit’s “release,” that the suppressed document shows that, over and over again, companies broke the very modest rules to protect the caribou. They built well pads that were far too big. They failed to place visual blocks across roadways and pipeline corridors, allowing the caribou’s primary natural predator — the gray wolf — to more easily spot its prey. And they failed repeatedly to restore the sites they had developed.

Not only “was compliance low in general,” biologist and auditor Webster wrote in his report, “but . . . often these measures were not prescriptive enough, allowing for companies to avoid them or seek exemptions from them.”

Webster submitted his report to the OGC in spring 2014 and was blunt about the critical issue of controlling the “cumulative impacts” of industrial operations.

“The objective of managing the size of the [industry’s] footprint and impact to caribou habitat is not addressed as each [gas development] application is reviewed on a standalone basis, with no long term planning required by each individual company, or between all operators within a specific core caribou area.”

A disturbing pattern of suppressing information

The leaked audit marks the third time in less than a year that the CCPA has learned through Freedom of Information (FOI) requests and other means that the OGC has withheld information from the public that casts fossil fuel companies and their regulator in a negative light.

In the first case, the CCPA submitted an FOI request to the OGC asking for documents relating to unauthorized dams built by natural gas companies to store water used in fracking operations. The request included copies of inspection reports and enforcement orders that Commission personnel may have issued at a number of sites where potentially dangerous dams had been built. Only when the FOI was filed did the OGC post the orders on-line and belatedly issue an information bulletin.

In the second case, a damaging report detailing how companies drilling and fracking for natural gas had contaminated groundwater at numerous gas well sites suddenly appeared on the OGC’s website just one day after investigative reporter Andrew Nikiforuk, who had obtained a leaked copy of the document, filed questions to the OGC about it.

The OGC had suppressed that report for four years, during which time successive provincial energy ministers claimed there was “zero” evidence of groundwater contamination due to fossil fuel industry gas-drilling and fracking operations. The OGC apparently never bothered to correct the ministers’ erroneous statements, and subsequently defended its decision to sit on the report because it was an “internal” document only.

And now, in a third case, we have proof that the OGC held on to a damaging audit on caribou for nearly as long as they did for the damaging groundwater contamination report.

The news comes at an awkward moment for B.C. Environment Minister George Heyman. Premier John Horgan has instructed Heyman to enact an endangered species law for the province, but the Premier is also clear that he supports expanded natural gas production. This means plenty more drilling and fracking ahead.

Horgan recently generated headlines across Canada when he said that his government will provide substantial financial incentives to Royal Dutch Shell, one of the world’s largest fossil fuel companies, if it proceeds with plans to build a massive liquefied natural gas (LNG) processing plant in Kitimat.

The government support of LNG strongly suggests that a tough, effective bill to protect endangered species by curbing industry excesses may not be in the cards. If the government, however, does break from convention and ushers in a new era of protecting threatened fish, wildlife and ecosystems in B.C., it could draw important lessons from the events surrounding the suppressed caribou audit.

B.C.’s glacial pace to protect species places them at greater risk

The federal government first found boreal caribou to be threatened in 2000. It took the B.C. government 10 years to publish a “science update” in response. The update was required under bilateral accords with the federal government known as the Accord for the Protection of Species at Risk in Canada and the Canada-British Columbia Agreement on Species at Risk Act.

The science update noted that vast swaths of boreal caribou habitat were already negatively impacted by oil and gas industry activities and warned that unless something was done to curb industry excesses there would be dire consequences for the already threatened species.

“New petroleum technologies used to extract unconventional gas from shale formations require large volumes of water, which may alter hydrology and peatland vegetation communities. The intensity of activity and infrastructure associated with unconventional gas development may have negative effects within all Boreal Ranges, especially Core habitats,” the update concluded.

The following year, the environment ministry issued its “implementation plan” for the “ongoing management” of boreal caribou. The 2011 plan, later given the dubious title of a recovery plan, laid the groundwork for the 2014 audit. It’s anyone’s guess how much further the province’s threatened boreal caribou herds declined in the intervening years.

Unchecked industrial development equals extinction for caribou

B.C.’s 2011 plan accepted as given that oil and gas industry activities would continue for decades. The government was simply unwilling to give up even a portion of oil and gas revenues. This blanket acceptance of essentially unchecked fossil fuel developments meant the recovery plan’s goals, such as they were, were weak and hopelessly compromised from the outset.

Goal number one was to “decrease the expected rate of decline” in caribou numbers.

Goal number two was to “significantly reduce the risk” that boreal caribou would be extirpated or face localized extinction in four of six boreal caribou populations in northeast B.C.

These goals signalled that the provincial government anticipated, and indeed accepted, that many, many more caribou would die than would be born or “recruited” in the years ahead. In two of the six sub-populations the anticipated losses were so high they would likely result in eradication of the caribou. In three of the remaining four populations, the numbers would fall precipitously for 50 years, at which point the real work of “recovery” would presumably begin. And in only one of the six populations would the numbers theoretically go up.

These shocking outcomes, according to the recovery plan itself, were actually developed by a team of biologists and land use analysts using computer models, but the government omitted them from the publication. Given the numbers the models spit out, it is no wonder they never made it into the report.

The numbers do exist, however, in a presentation a senior B.C. civil servant made to an interprovincial caribou conference at Alberta’s Foothills Research Institute in 2012. The numbers presented by Chris Ritchie, now head of the Ministry of Forests, Lands and Natural Resource Operations’ caribou program, projected a staggering 65 per cent overall decline of boreal caribou in FNFN territory by 2060. In the worst-case scenario, the “recovery” plan anticipated a 97 per cent decline in one herd from an estimated 365 animals in 2010 to just 11 within 50 years.

In summary, B.C.’s “recovery” program envisioned losing more than 1,000 members of a threatened caribou population between 2010 and 2060. Only after those losses and time had elapsed, would the real “recovery” work actually begin. Just what that work would entail is anyone’s guess. But if current practice is any indication, it would almost certainly include killing wolves — a controversial hallmark of modern-day recovery efforts just about everywhere that caribou numbers have declined.

Industry ‘consternation’ at caribou protection rules

Audits assess whether goals are being met and rules are being followed. If the goals aren’t being met, then problems identified in audits can be rectified by changes on the ground. If audits reveal that rules are repeatedly broken, then fines and/or charges may be necessary to steer things in the desired direction.

According to Ritchie, there was a fair amount of “consternation” in the natural gas industry that special rules governing company operations in caribou habitat had to be developed at all.

Once forced to do so, however, industry representatives worked with OGC officials and hammered out a modest set of new operating practices. The rules themselves were to be embedded in permits issued by the OGC to individual companies operating in areas where caribou were known to reside.

“They [the OGC] refer to the operating practices, figure out which ones are going to be appropriate and effective, and they are converted to permit conditions, which is where a legal requirement is applied. Then there’s an expectation that the industrial operator will meet those objectives,” Ritchie told delegates attending the Alberta caribou conference.

Contacted by phone in early April, Ritchie said it is possible that the OGC might choose not to embed conditions into permits. If it did so, however, the OGC would have to demonstrate that its choice did not result in a “material adverse impact” on caribou habitat.

Ritchie also said during the call that he understood the OGC had conducted “a review” of company compliance with the ‘interim operating practices,’ but he had not seen a copy of that review.

Audit shows company failing to comply on multiple issues

A draft of the original audit is dated May 29, 2014, its front cover prominently carrying the OGC’s distinct blue and green logo on the top left corner and it includes copies of inspection forms that Webster filled out during his field visits.

In his audit of one Penn West operation, Webster gave the company a “fail” grade on six issues. Three notable problems included:

• a pipeline right-of-way nearly double the allowable width.
• a gas well pad built right to the edge of a wetland with no protective “riparian” forest left standing along the edge.
• the ground falling or “subsiding” by one metre at one company operation. The audit does not indicate what caused the soil to subside, but water withdrawals, gas drilling and fracking can trigger such events.

An outstanding question that may have to await the outcome of a future FOI request is whether the rules developed by the OGC and its company clients were ever actually embedded in the permits themselves. If the OGC did not write the rules directly into the permits it would result in a disastrous outcome, said a lawyer with expertise in endangered species and the law.

“In B.C., there’s no general provision against destroying caribou habitat. And the only way you protect that habitat is through putting specific conditions in a permit. If you don’t, then you’re back to the general problem, which is there’s nothing preventing the company from destroying that habitat,” says Sean Nixon, a lawyer with Ecojustice, Canada’s largest environmental social justice law organization.

Independent agency needed

The OGC was created in 1998 as a “one-stop-shop” for regulatory approvals.

A central question, however, is whether an agency with such a mandate can effectively police the industry it issues development permits to, or whether the critically important role of monitoring and enforcement should be assigned to another agency. This question has been addressed at least twice previously when other provincial agencies or ministries were examined to see whether they were effectively protecting natural resources.

In both cases, the conclusion was that a separation of powers was essential to ensure proper oversight.

In 2007, a special committee of the B.C. Legislative Assembly, consisting of both Liberal and NDP MLAs, was tasked with reviewing and making recommendations on “sustainable aquaculture” in B.C.

The committee noted in a report that while B.C. claimed “to have the most stringent regulatory regime” with regard to fish farms, there were “key areas” where oversight of the industry could be strengthened. One problem the committee identified was the inherent tension within the lead agency tasked to oversee the industry (the agriculture and lands ministry). The ministry essentially had powers to both police the industry and review and approve industry applications.

The committee concluded the model was problematic, noting in its May 2007 report:

“There must be a clear division between Ministry of Agriculture and Lands and the Ministry of Environment. Programs that promote aquaculture development should be within the Ministry of Agriculture and Lands. All protection, regulation and monitoring of the aquaculture industry must be within the mandate of the Ministry of Environment.”

This same idea was articulated nine years later in Auditor General Carol Bellringer’s report on the effectiveness of the ministry of energy and mine’s compliance and enforcement efforts over the mining sector. The report followed the horrific events at the Mount Polley mine where a tailings pond dam failed, triggering one of the worst environmental disasters in B.C. history. Bellringer said that in order to have a credible shot at preventing another Mount Polley-like event, the government needed to “remove” compliance and enforcement powers from the ministry of energy and mines and turn it over to another agency.

“MEM’s role to promote mining development is diametrically opposed to compliance and enforcement. This framework, of having both activities within MEM, creates an irreconcilable conflict,” Bellringer said.

It’s hard to see how a similar conclusion cannot be reached when examining the OGC’s compliance and enforcement efforts. As with the aquaculture and mining examples, the OGC is effectively saddled with a contradictory mandate to both promote and regulate the gas industry. Time and again in just one year, the Commission’s credibility as a tough regulator has been called into question.

The promoter has failed to be the enforcer.

Exit strategy

Boreal caribou are far from the only forest-dwelling caribou at risk in B.C. All across the province woodland and mountain caribou populations are dwindling, and in many cases, rapidly.

In the forests of West Moberly and Saulteau First Nations territory west of Fort St. John, dogged efforts are underway to stave off extinction of the Klinse-Za caribou herd by capturing maternal caribou and placing them in pens to raise their calves. Far to the south on lands straddling the B.C./Washington State border, the Selkirk caribou “herd” is now functionally extinct with just three animals.

For the boreal caribou in FNFN territory, a reprieve of sorts has come. Gas industry activity in the area is currently at a virtual standstill because of poor economics. But the drilling and fracking will return, and if B.C.’s current “recovery” plan remains in place, the region’s caribou are doomed.

Getting off the highway to extinction in FNFN territory must involve a suite of initiatives. In the aftermath of the damaging and suppressed audit, four seem obvious:

1. A tough new provincial endangered species bill must be passed and passed soon.
2. Effective curbs on fossil fuel industry operations must be enacted.
3. New operating rules designed to protect endangered species must be written into permits and must be enforced.
4. The OGC should no longer be tasked with monitoring and enforcing the industry that it also promotes.

And then there’s a fifth action, without which none of the above works. That is doing what the provincial government said it would do and implement the United Nations Declaration on the Rights of Indigenous Peoples. Truly acknowledging that industrial developments will occur only after the free and informed prior consent of affected First Nations has been obtained is the only honourable way forward.

What’s happened to date is the height of dishonorable conduct.

Taking members of an affected First Nation for a helicopter ride; having them participate in an audit in their traditional territory; not responding to the Nation’s requests for a copy of the audit that is kept under lock and key for four years; then the Nation learns of the audit’s contents through a third party.

The FNFN is just one of a long line of First Nations that deserve far better.

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The B.C. Oil and Gas Commission (OGC) was “unreasonable” and “intransigent” in its dealings with the Fort Nelson First Nation as the regulator considered and eventually approved a 39-kilometre natural gas pipeline in endangered boreal caribou habitat, according to the B.C. Supreme Court.

The natural gas pipeline, proposed by Calgary-based Rockyview Resources, would have run through Fort Nelson First Nation territory, resulting in 78 hectares of disturbance to caribou habitat. Fort Nelson First Nation is located in the Horn River Basin unconventional gas play, which makes it a fracking hot spot.

In a recent ruling, the court found the Oil and Gas Commission refused to discuss issues related to the pipeline and its impacts on the Maxhamish caribou range. Caribou are provincially and federally recognized as a species at risk and 84 per cent of boreal caribou habitat in B.C. falls within Fort Nelson First Nation territory.

“The OGC failed to talk to us,” Fort Nelson First Nation Chief Harrison Dickie said in a statement. “It is gratifying to have the court state that we were the ones acting reasonably in the process.”

In an oral ruling, Madam Justice Gerow described the Oil and Gas Commission, B.C.’s pipeline regulator, as uncompromising and said it failed to consult adequately with First Nations who acted reasonably in their engagement with regulators. The court overturned the pipeline’s June approval and awarded court costs to the First Nation.

Fort Nelson First Nation and nearby gas plays. Image: B.C. Gov 

“When the Commission’s initial response is that it would not discuss concerns and was satisfied that there would be no material impact [on the caribou habitat], it cannot be said that Commission was willing to engage in consultation,” Justice Gerow stated.

The Court found the OGC was strict in designating which topics would and would not be discussed in a meeting. Chief Dickie described the consultation process as running “into a brick wall.”

The B.C. government recently announced it would adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a document designed to safeguard the principles of free, prior and informed consent when consulting with indigenous peoples. In a recent press briefing B.C. Environment Minister George Heyman said the province hopes to revise the B.C. environmental assessment process, bringing project proponents into meaningful consultation with First Nations from the start.

“We want a new environmental assessment process that respects the legal rights of First Nations as well as our commitment to the UN Declaration on the Rights of Indigenous Peoples, the Tsilhqot’in decision and the Calls to Action of the Truth and Reconciliation Commission,” Heyman said.

Chief Dickie, who has previously said his nation is open to development on its traditional territory, said his nation’s concerns were not adequately addressed by the Oil and Gas Commission.

“If our concerns with appropriate caribou management had been taken seriously by the OGC and by the pipeline company, Rockyview Resources, this project may well have proceeded.”

In February 2017 the province committed $27 million to enhance caribou recovery in B.C. In response to the gas pipeline proposal, the Fort Nelson First Nation developed a caribou recovery plan the nation says the Oil and Gas Commission refused to consider.

The commission considered it impractical to consider the nation’s caribou plan, resulting in the regulator using “inadequate and incomplete data to determine that the proposed pipeline poses ‘no material adverse effect’ to the caribou populations in the area,” the Fort Nelson First Nation said in a previous statement.

About 728 boreal caribou remain in B.C. with five range areas, most in the north-east of the province. The pipeline would have crossed the Maxhamish boreal caribou range where the population has decreased to from 306 to 104 animals since 2004 with consistently low calf survival rates, according to FNFN numbers.

In an information bulletin, the B.C. Oil and Gas Commission stated: “The Commission will study the decision, and is committed to making any necessary improvements to its consultation and decision-making processes to address the Court’s direction and to facilitate a strong working relationship with Chief Harrison Dickie and his community.”

The proposed gas pipeline and a related storage facility was scheduled to begin construction north of Fort Nelson in the coming weeks, according to a press release provided by the Fort Nelson First Nation.

“It is gratifying to have the court state that we were the ones acting reasonably in the process.” https://t.co/fT5kdZivFu

— DeSmog Canada (@DeSmogCanada) December 19, 2017

“I hope that the OGC has learned a lesson from this,” Chief Dickie said, “that the way forward is to have an open dialogue rather than being inflexible and trying to force its agenda at the expense of legitimate First Nation concerns.”

Fort Nelson First Nation previously won a case challenging a provincial water licence that had been granted to Nexen. The licence, which allowed the company to withdraw 2.5 million cubic metres of water, was withdrawn in 2015 after the Environmental Appeal Board found the province failed to properly consult the First Nation and to employ adequate scientific modelling.

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A First Nation in northeastern B.C. is challenging the province’s approval of a proposed gas pipeline that would cut across critical habitat of threatened boreal woodland caribou.

Fort Nelson First Nation (FNFN) has filed for a judicial review of B.C. Oil and Gas Commission’s approval last month of a pipeline, proposed by Rockyview Resources Inc. and Shanghai Energy Corp., that would run through FNFN territory, resulting in 78 hectares of disturbance to caribou habitat.

“The 39-kilometre proposed gas pipeline cuts right through core caribou habitat in our territory, in an area with the most concentrated and highest-known use by boreal caribou for forage, calving, rearing and protection from predators,” said Lana Lowe, FNFN land and resources director.

“This area has been important harvesting grounds for our people, but, in particular, the area contains very important habitat for caribou, which our people have relied on for many generations to feed our families,” she said.

#FortNelson First Nation Files Legal Challenge to Gas Pipeline Claiming It Will Threaten #Caribou Habitat https://t.co/4WqPg5ICl3 #bcpoli pic.twitter.com/oQyqV7AyHw

— DeSmog Canada (@DeSmogCanada) July 18, 2017

The legal challenge is necessary because the Oil and Gas Commission did not adequately consult the First Nation or consider their concerns about the threatened caribou population, according to a news release from the band.

A plan, put together by FNFN, to support the recovery of caribou in the area and a suggested consultation process was ignored by the Oil and Gas Commission, says the news release.

“The BCOGC refused the invitation to work out a specific consultation process and deemed it not practical to consider the FNFN Caribou Report. This resulted in the BCOGC using inadequate and incomplete data to determine that the proposed pipeline poses ‘no material adverse effect’ to the caribou populations in the area,” it says.

“The BCOGC demonstrated an inadequate, unlawful and wholly unacceptable approach to consultation with FNFN regarding how this pipeline will impact boreal caribou in our territory,” said acting Chief Sharleen Gale.

The First Nation is questioning why the project would be approved only months after former premier Christy Clark acknowledged that some woodland caribou herds are in danger of disappearing and announced $27-million for a revamped caribou recovery program.

About 728 boreal caribou remain in B.C. with five range areas, most in the north-east of the province. Boreal caribou are listed as threatened under the federal Species At Risk Act and are red-listed provincially, meaning their status is threatened to endangered.

The pipeline would be in the Maxhamish boreal caribou range and that population has decreased to from 306 to 104 animals since 2004 and calf survival rates are consistently below the level required to avoid further population declines, according to FNFN numbers.

“There is no evidence to suggest that the herd is stable, yet the province and Rockyview Resources insist that it is,” Gale said.

First Nations are working to restore populations and,once populations are stabilized, hope to resume treaty rights to harvest caribou, says the news release.

More than 80 per cent of boreal caribou habitat in B.C. is within FNFN territory, Gale said.

“We clearly have an interest in saving and helping restore caribou populations and, for this reason, our community has chosen not to hunt caribou until the population stabilizes. We expect the same stewardship ethic from companies who wish to access our territory for economic purposes,” she said.

Economic development is encouraged in FNFN territory provided it creates long-term benefits for members and respects land, water and treaty rights, Gale said.

According to an FNFN background paper, there have been 77 referrals for projects within the territory over the last year and the Rockyview proposal is the only one the community rejected.

“FNFN wants to support projects in our territory. We also need proponents to engage with us early in the planning process, commit to building long-term relationships and operate in a way that supports FNFN development objectives,” Gale said.

Recovery plans for boreal caribou herds has sparked controversy for several years as the province tracks and shoots wolves from helicopters in an effort to stop predation, while conservation groups say that the major culprit is habitat destruction as resource companies open up the area.

Earlier this year, the Canadian Parks and Wilderness Society launched a lawsuit against federal Environment Minister Catherine McKenna, saying she has not acted to protect the habitat of boreal woodland caribou even though critical habitat was identified in 2012.

Image: Woodland caribou in Jasper National Park. Photo: Parks Canada

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The B.C. Environmental Appeal Board has ruled the province failed to properly consult the Fort Nelson First Nations and employ adequate scientific modelling when it approved a long-term water withdrawal licence for Nexen Inc., a company with fracked gas operations in the Horn River Basin.

The board ordered the cancellation of the water licence, effectively immediately. The permit granted Nexen permission to withdraw up to 2.5 million cubic metres of water annually from North Tsea Lake, located within traditional Fort Nelson First Nation territory, until 2017.

The First Nation considers the ruling a significant victory over both Nexen and the B.C. government.

“Granting this licence was a major mistake by the province,” Fort Nelson First Nation Chief Liz Logan said, adding “our members have always used the Tsea Lake area in our territory to hunt, trap, and live on the land."

Logan said Nexen withdrew water from Tsea Lake at ecologically damaging times.

“The company pumped water out of the lake, even during drought conditions,” she said. “There were major impacts on the lake, fish, beavers and surrounding environment.”

“Water is a huge concern for us, and for all British Columbians. By approving this licence, the province demonstrated it is not protecting the public interest in water.”

The appeals board found the province did not base its decision to grant the water permit in 2012 on sound science. Certain aspects of the permit were based on “a general and untested theory,” the board stated in its decision, and the percentage of lake water Nexen was allowed to use was “not supported by either scientific theory, appropriate and reliable stream flow modeling, or adequate field data.”

The ruling rejected the province’s assertion the water withdrawal would have no significant environmental impacts.

The board also found the province failed to operate in good faith with the Fort Nelson First Nation, which has a constitutionally protected right to hunt, trap, fish and continue traditional ways of life on its Treaty 8 territory.

The province’s consultation process with the First Nation was “seriously flawed,” according to the board and failed to adequately consider the adverse effects of the water withdrawal licence on the nation.

“We want to work with the province and industry on sustainable development in our territory, but we are being ignored,” Chief Logan said. “We have in the past, and are willing to do so moving forward, as long as our treaty rights are respected and the public interest in environmentally sustainable development is upheld.”

The ruling will set a new precedent for water permits in B.C. and could potentially impact fracking operations underpinning the province’s push for a massive increase in liquefied natural gas (LNG) exports.

“This decision sends a clear message to the B.C. government and to the fracking industry that the LNG dream will not happen at the expense of our lakes, rivers, and treaty rights,” Logan said.

Image: Province of B.C.

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B.C. Environment Minister Mary Polak has reversed and apologized for excluding First Nations from two amendments that would eliminate the province’s mandatory environmental assessment of gas developments and ski resorts.

As DeSmog Canada recently reported, the Orders in Council were passed without public consultation and would exclude major natural gas processing facilities and resorts from undergoing a standard environmental review and public consultation process.

“The rescindment is a direct result of backlash from the Fort Nelson First Nation (FNFN)," Anna Johnston, staff counsel with West Coast Environmental Law Association, told DeSmog Canada. "Yesterday, at an LNG Summit hosted by the FNFN, they ‘drummed out’ government representatives due to the provincial government’s failure to consult with them on the Orders.”

B.C. officials were escorted from the forum on liquefied natural gas (LNG) after news of the eliminated environment assessments broke. At the forum, called “Striking a Balance,” Chief Sharleen Gale of the FNFN asked B.C. government officials to leave the room, saying “what I learned from my elders is you treat people kind. You treat people with respect…even when they’re stabbing you in the back.”

“So I respectfully ask government to please remove yourself from the room. We’re going to ask industry to stay.”

A video of the expulsion can be seen below.

The provincial government has been undergoing “serious environmental deregulation,” said Johnston, pointing to Bill 4, the Park Amendment Act, as further evidence.

“Their rescinding the Orders indicates that the Minister of Environment has heard the message loud and clear that the government cannot continue to sneak through changes to environmental laws that will significantly impact British Columbians without first consulting them,” Johnston told DeSmog Canada.

“Public participation is essential to responsible environmental decision-making, including the process of making the laws that protect our environment and our communities. Hopefully, the government has learned that next time, it must properly consult stakeholders, environmental groups and First Nations before attempting any further changes to our environmental safety net.”  

Yesterday Chief Terry Teegee of the Carrier Sekani Tribal Council told West Coast Native News First Nations were “blindsided” by the changes. “There was no consultation as far as changing that policy.”

An executive with the First Nations Summit, Cheryl Casmier, said the revisions were “another unacceptable example of government once again attempting to water down and minimize its consultation and accommodation obligations with our communities.”

First Nations expressed concern decisions that would impact land use were being made without proper consultation.

Chief Stewart Phillip of the Union of B.C. Indian Chiefs told West Coast Native News, “in a stunningly stupid move, the province has effectively declared war on all B.C. First Nations and jeopardized all LNG discussions throughout the entire province of B.C.”

Minister Polak made this statement in a B.C. government press release:

“I would like to acknowledge First Nations concerns about amendments to the Reviewable Projects Regulation under the Environmental Assessment Act. Our government apologizes for failing to discuss the amendment with First Nations prior to its approval.

Our government is committed to a strong, respectful and productive relationship with First Nations. That is why we will rescind the amendment that would have removed the requirement for an environmental assessment for sweet gas facilities and destination resorts, until we have undertaken discussions with First Nations. The Canadian Association of Petroleum Producers (CAPP) has been made aware of this decision, and respects the need for our government to have further discussions with First Nations.

Our government sees a significant value in continuing to develop a Government to Government relationship with all First Nations. We remain actively engaged with First Nations in northeastern British Columbia, including shared decision making that respects the environment, First Nation values, and Treaty 8 and its associated rights.”

Image Credit: Jeremy S. Williams, Wilderness Committee

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.