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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