When officials from the BC Energy Regulator travelled to Wet’suwet’en territory in September 2022, they were planning a routine inspection of a fish-bearing stream.

Two years had passed since Coastal GasLink completed installation of a section of pipeline through the stream, a tributary of Tchesinkut Creek, near the community of Burns Lake in northwest B.C.

They discovered Coastal GasLink had never finished restoring the waterway and, for two years, pipeline construction had been impacting fish habitat. It was a mess. 

A compliance and enforcement officer with the regulator noted the work had “disrupted” the stream’s natural course and the water was flowing into a trench that had been dug to install the pipeline. 

It was not immediately clear why the stream remained in bad shape for so long, but the regulator noted in its inspection report it had “considerable concerns with leaving these works uncompleted for an extended period of time.” The regulator also directed the company to restore the natural flow of the stream and monitor it to ensure continued construction activities weren’t harming or stranding any fish.

Yet the report concluded: “No non-compliance noted during inspection.” Despite the impacts to the fish-bearing stream, government officials didn’t consider the pipeline company to be breaking any rules.

Provincial records show the lenient response from the B.C. regulator isn’t an isolated incident. A review of 40 inspection reports show the regulator identified more than 80 potential infractions at Coastal GasLink worksites but enforcement officers only flagged five as violations of provincial regulations. Some of the alleged infractions identified in the BC Energy Regulator’s inspection reports that went unpenalized included activities that directly impacted sensitive ecosystems. Those include minor spills, piles of contaminated soil, open chemical bottles thrown into wetland fencing and workers running heavy machinery directly in flowing water.

The Narwhal spent months sorting through publicly available records and data, analyzing government documents obtained through freedom of information legislation and poring over provincial laws and regulations to examine how the pipeline construction is being monitored. The results detail how the BC Energy Regulator, an industry-funded government agency that manages oil and gas activities, was given responsibility for overseeing compliance with a bevy of provincial and federal laws — and what that looks like on the ground.

Some experts say the reality is there is a pattern of lax oversight that is putting public safety and environmental protection at risk.

“Let’s face it, the potential impacts are high,” former government consultant Donna Forsyth told The Narwhal in an interview.

The regulator told The Narwhal in an emailed statement its enforcement officers sometimes “identify concerns with activities that, based on their assessment, do not meet the legislative requirements of being a non-compliance.” Instead, they talk to the workers on the ground and tell them what needs to be fixed.

Deborah Curran, executive director of the Environmental Law Centre at the University of Victoria, said it’s important to understand the history and uniqueness of the regulator.

“The original purpose of the BC Energy Regulator was very much to facilitate the development of the oil and gas industry in the province,” she added. She said while that has shifted somewhat since, the regulator’s origin story goes a long way to explain the current state of its compliance and enforcement.

“This is a fairly unique arrangement … No other industry has a similar setup,” she said, explaining the regulator is both a “one-stop shop for all approvals” and in charge of keeping companies in line with the laws.

Despite conducting more than 500 inspections of the project to date, the regulator fined the Calgary-based energy giant TC Energy, which is building Coastal GasLink, 12 times. The dozen tickets were for violations of B.C.’s Water Sustainability Act. Each ticket cost the company $230 for a total of $2,760. The estimated cost to complete construction of the northern B.C. pipeline is $14.5 billion.

The regulator said it levied penalties against the company that were “determined by an existing statute” under provincial legislation related to works around sensitive waterways, and the tickets were “in regards to the reporting of water-use volumes, even if no water was taken and used.” 

The section of the act which details offenses related to sensitive streams, notes an infraction can come with a penalty of up to “$200,000 or imprisonment for not longer than six months.” If the offence is deemed severe enough, that amount can be escalated to $1 million or up to a year in jail.

The regulator did not specifically explain what would have triggered higher fines. It said the province could take a company to court based on BC Energy Regulator information but in the case of Coastal GasLink’s infractions, the regulator determined issuing the tickets was “the most appropriate response.”

The regulator has also issued four orders and five warning letters for “sediment and erosion control matters, construction-related concerns and failures to report,” according to documents drafted in March.

A spokesperson with TC Energy did not directly answer The Narwhal’s question about why the fish-bearing stream had been disrupted for two years and noted the tickets were for “administrative errors.”

“Coastal GasLink respects the role our regulators have in upholding the high regulatory standards we are committed to meeting.”

‘How did we get here?’

While the regulator has intervened on only a fraction of incidents flagged by its inspections, a separate provincial office has a much higher rate of interventions, despite conducting far fewer inspections.

Officers from B.C.’s Environmental Assessment Office, a government branch within the Ministry of Environment and Climate Change Strategy, conducted less than 100 inspections targeting Coastal GasLink since construction began. These resulted in the office issuing 30 orders, 59 warnings and five administrative penalties totalling more than $800,000, including a recent penalty of $346,000. 

Those penalties were issued primarily for failure to prevent sediment from spilling out of construction sites into fish habitat, according to the assessment office. The office also charges Coastal GasLink fees to cover the cost of its inspections, adding up to more than $200,000 to date.

When asked if the province was satisfied with the regulator’s compliance and enforcement activities, a spokesperson with the office did not directly answer.

“The Environmental Assessment Office monitors for compliance with the conditions and requirements outlined in the environmental assessment certificate granted for a project,” the spokesperson wrote in an email to The Narwhal. The BC Energy Regulator “monitors for compliance with the requirements of the permits and authorizations they oversee. [The regulator] would be best placed to speak to their approach to compliance and enforcement, including their policies for enforcement actions such as warnings, orders and fines.”

The regulator agreed, noting the two government agencies “operate under different acts and regulations and as a result enforce different regulatory requirements.” The regulator added that its methods of keeping Coastal GasLink in compliance were rigorous.

“The [BC Energy Regulator’s] robust and frequent inspection schedule, combined with a graduated enforcement model, allows non-compliances to be identified quickly and ensures companies take corrective actions within a specific period of time, before the need for escalated measures, including fines,” a spokesperson wrote.

Shannon McPhail, executive director of Skeena Watershed Conservation Coalition, said the data shows the regulator is “clearly not” living up to its responsibilities.  

“If you didn’t know anything about the [BC Energy Regulator], it would be natural to assume they have been hired by industry to ensure their projects get completed regardless of how many laws the proponent breaks,” she said in an interview. “It’s gotten so bad that it’s hard to believe it’s real. How did we get here?”

Regulator didn’t impose penalties for dozens of issues

Unlike B.C. Environmental Assessment Office inspection reports, which are regularly published to the department’s website, BC Energy Regulator reports are not publicly available. The regulator spokesperson said that’s because its inspection reports “can contain personal and/or confidential information and are subject to [freedom of information] review to allow for proper redaction of such information.” 

When asked why the provincial regulator does not remove sensitive information prior to publishing reports — a method the Canada Energy Regulator employs to proactively post inspection reports — the spokesperson said B.C. conducts around 4,000 inspections annually and said it doesn’t have enough resources to publish all of them. Instead, it says it only publishes summary information about infractions on its website.

Of the 40 reports obtained by The Narwhal, the only redactions applied were to remove the names of government officials. 

The regulator’s field staff includes 22 compliance and enforcement officers and four technical advisors, based in Fort St. John, Dawson Creek, Fort Nelson and Terrace, B.C. Three of those officers are responsible for monitoring the entirety of the 670-kilometre pipeline project, with support from “various subject matter experts,” according to the spokesperson. 

According to the documents reviewed by The Narwhal, government officials conducted 75 per cent of inspections with a Coastal GasLink contractor present. Some of the reports also suggest the pipeline workers were informed of the inspection ahead of time. 

“Compliance and enforcement officers are able to use discretion when choosing to inform permit holders and/or subcontractors prior to conducting inspections,” the regulator spokesperson wrote. “Given the length, remote nature and access considerations of Coastal GasLink, [compliance and enforcement] officers do sometimes communicate and co-ordinate inspections with [Coastal GasLink] environmental inspectors.”

When deficiencies like the disrupted stream were identified, the officers regularly noted issues were “discussed with the operator” before concluding the site was in compliance with environmental and permitting regulations.

For example, one inspection noted workers installed the pipeline across a waterway without setting up equipment to protect the stream. While there was “no flow at time of inspection” the officer flagged the risk of sediment leaving the site during fall rains. Under B.C. environmental regulations, any work being done in a stream, creek or river needs to be isolated, meaning protective measures have to be installed on either side of the worksite to make sure the construction work isn’t interrupting the natural flow of water or impacting habitat outside the crossing. 

“I was told that isolation equipment was nearby in a vehicle but the vehicle was not able to travel the [right-of-way] due to active pipeline installation,” the officer wrote. “Recommend having isolation material adjacent or in closer proximity to the crossing.”

In other words, the pipeline workers had the necessary equipment to protect the stream, but weren’t using it. Instead of writing up the company for a violation, the inspector simply described the situation and concluded the company was in compliance. 

Another report suggested the workers on site didn’t have adequate training to deal with a situation where heavy machinery had been working directly in flowing water, without any protective measures in place. The government official noted Coastal GasLink had halted construction prior to the inspection after industry inspectors flagged the issue.

When the regulator’s compliance and enforcement officer arrived, there was no supervisor on site and the officer noted the workers who were there didn’t know how to address the problem. 

“Supervisor was requested to attend the site but was busy,” the officer wrote.

This inspection did not result in the regulator issuing any corrective actions, such as a warning or order. When asked whether this was typical of BC Energy Regulator compliance and enforcement, the spokesperson did not directly answer.

“Our objective is to keep permit holders within regulatory compliance (and return them to regulatory compliance if they become non-compliant) with the ultimate goal of ensuring the associated regulatory aims, such as public safety or environmental protection.”  

“There is nothing in colonial law … that requires governments to enforce anything,” Curran said. “The reality is we just aren’t getting at every single infraction that is out there, nor are we even coming close.”

To McPhail, who has been fighting for years to see more transparency and accountability with government oversight of the pipeline project, these details are infuriating.

“Just who exactly does the [BC Energy Regulator] represent when inspecting pipelines?” she asked. “It certainly doesn’t seem to be British Columbians and it clearly isn’t the laws or legislation they purport to uphold.”

‘A real disconnect’ between legislative powers and enforcement

Coastal GasLink crosses more than 700 streams, creeks and rivers, most of which are home to numerous fish species, including declining wild salmon populations. Getting the pipe across these waterways is often an intrusive process — diverting streams and digging trenches through creek beds — and the landscape on which the work is being done is remote and hard to access.

“Coastal GasLink is a complex project and is subject to some of the most stringent regulatory requirements in the world,” the company’s spokesperson wrote. “This complexity includes British Columbia’s diverse terrain and slopes, as well as unpredictable temperature and ever-changing weather conditions.”

According to government documents, the various regulatory agencies agreed the BC Energy Regulator would be “the lead compliance and enforcement agency for stream crossings.” 

In an internal briefing note drafted in early March, George Heyman and Josie Osborne, B.C.’s ministers of environment and energy, respectively, were told a memorandum of understanding between the regulator and the environmental assessment office, as well as agreements with other government agencies such as Fisheries and Oceans Canada, form the basis of that arrangement.

McPhail is baffled by this arrangement, noting “salmon and other anadromous fish should fall under federal jurisdiction.”

While the agreements provide a framework for how the BC Energy Regulator collaborates “to share information and data, and provide expertise for audits, inspections and investigations” its authority is derived from legislation. 

By way of the recently renamed Energy Resource Activities Act (previously called the Oil and Gas Activities Act) the regulator has special powers over the Environmental Management Act, Water Sustainability Act, Land Act, Wildlife Act, Forest Act and Heritage Conservation Act, among others. 

This means the regulator can make decisions and issue permits to clear an archaeological site, for example, or cut down forests to clear land for fossil fuel projects. It also means the regulator is responsible for enforcement if a project like Coastal GasLink is breaking any of those laws.

Doug Caul, former director of the Environmental Assessment Office who recommended approval of Coastal GasLink in 2014, wrote in his decision that legislative powers were granted to the government agency to fast-track permitting, provide certainty to fossil fuel companies and prevent unnecessary duplication.

Forsyth, a consultant who advised the province about the Oil and Gas Activities Act in the mid-2000s and helped draft the Water Sustainability Act, said the allocation of authority to the regulator has had the effect of watering down B.C.’s environmental protections. 

“Most people just think if we have laws that’s the end of the story,” she told The Narwhal in an interview. “But just look at speed limits: if nobody was out there enforcing them, it’d be much worse. Or drinking and driving: people were doing it for decades and now they don’t as much because it gets enforced.”

She said it also perpetuates a false narrative about the province’s burgeoning liquefied natural gas export industry.

“There’s ministers that say, ‘Oh, we’ve got the best regulations in the world and that’s why it’s clean gas,’ ” she explained, paraphrasing a talking point regularly used by B.C. politicians and industry groups like the Canadian Association of Petroleum Producers. She said the regulations are “pretty reasonable on paper” but noted the energy regulator was given discretion over whether or not to enforce those rules.

“They are the boots on the ground, paid for by industry,” she said. “I think there’s a real disconnect between what’s on paper and what and who is actually dealing with things, or turning a blind eye, in the field.”

‘An embarrassment to the province’

Three other gas pipelines approved by the B.C. government have yet to be built. The Pacific Trails pipeline, which closely follows the route of Coastal GasLink, and the Westcoast Connector Gas Transmission pipeline are owned by multinational pipeline and energy company Enbridge. TC Energy owns the Prince Rupert Gas Transmission project, a contender for supplying gas to Ksi Lisims, a proposed liquefaction and export facility on Nisga’a territory currently undergoing environmental assessment.

“This government cannot responsibly manage, permit, regulate or assess a project of this scale,” McPhail said. “Before we entertain any more pipeline construction in this province, the government needs to get their shit together — and it’s clear that they don’t have it together.”

George Heyman, B.C.’s environment minister, told The Narwhal Coastal GasLink was approved in 2014, under “the previous government.” Since then, he wrote, B.C. updated its environmental assessment legislation “to strengthen the laws that protect a broader range of effects that matter to the people of British Columbia, and to fully recognize the rights of Indigenous Peoples.”

“This created a more robust assessment process going forward as well as better compliance and enforcement for all projects, whether approved under the former or current legislation,” he explained, adding the government entered into a compliance agreement with the company last year.

“This agreement also provided the [environmental assessment office] with additional enforcement tools that resulted in multiple stop-work orders and orders to remedy this spring, as well as substantive financial penalties,” Heyman wrote. “These are evidence of effective enforcement action. We will continue to hold [Coastal GasLink] to account for meeting all provincial requirements to protect the environment.”

The penalties levied against the company by the office include $72,500 in February 2022, $170,100 in May 2022 and $213,600 in January 2023, as well as $346,000 in September 2023.

“For those who are considering a pipeline on their traditional territories or near their communities and municipalities, I can imagine there is an assumption that the policies, laws and legislation will protect their interests if the proponent causes damage — but that’s clearly not the case,” McPhail warned. 

“We’ve got to collectively acknowledge that the Coastal GasLink pipeline has been a boondoggle in every possible way: an embarrassment to the industry [and] most of all an embarrassment to the province of B.C.”

— With files from Sarah Cox

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.

Editor’s note: On Sept. 11, 2024, B.C.’s Environmental Assessment Office fined Coastal GasLink $590,000 — the project’s biggest fine yet — issuing 10 administrative penalties related to worksite inspections that took place during this incident.

Sleydo’ Molly Wickham was composed and quiet as she stared out the window of a helicopter flying over vast stretches of TC Energy’s Coastal GasLink pipeline on Wet’suwet’en territory (yintah). Below, a wide swath cut through forests and wetlands, crossing creeks and rivers. 

A wing chief of the Gidimt’en clan, Sleydo’ was part of a small group on a monitoring flight to document the contentious project’s impacts as soaring temperatures rapidly melted last winter’s heavy snowpack.

The Narwhal was invited to join the group as an independent observer. The flight followed the pipeline route over a rugged mountain pass, through Lihkt’samisyu and C’ihlts’ehkhyu clan territories and past the crossing of Wedzin Kwa (Morice River) onto Gidimt’en territory. This area included an 11-kilometre stretch of the pipeline route where provincial officials have ordered TC Energy to stop construction due to serious environmental infractions. 

It was 30 C on May 17 as the helicopter passed over an area known as the Gosnell. Here, the scale of the impacts became clear — sections of the pipeline submerged in floodwaters, a tributary of Wedzin Kwa turned murky brown, stranded equipment and wetlands stained with sediment. For kilometres, the site was inundated with water and we circled silently, taking it all in.

“The scale of damage that is happening on the territory is heartbreaking,” Sleydo’ said. “But it’s also what we knew was going to happen, which is why we’ve been fighting so hard.” 

Coastal GasLink has struggled to control erosion and keep sediment out of wetlands, creeks and rivers since construction began in 2019. B.C.’s Environmental Assessment Office has fined TC Energy more than $450,000 for dozens of infractions. As part of its government approval and permits, the company is required to ensure no dirt or other materials from the pipeline right of way, or ancillary worksites, enters the surrounding environment. When sediment gets into wetlands and watercourses, it clogs up fish habitat and can suffocate salmon smolts.

Coastal GasLink’s history of non-compliance with environmental regulations of ‘grave concern’

George Heyman, B.C.’s minister of environment, was not available for an interview with The Narwhal, but a spokesperson for the province’s Environmental Assessment Office said Coastal GasLink’s record of non-compliance with the terms of its environmental assessment certificate is of “grave concern.” 

A stop-work order covering around 11 kilometres of the Gosnell area was issued to the pipeline company on May 11, after compliance and enforcement officers found “erosion and sediment control measures required to protect sensitive wetlands were missing and as a result, sediment laden water was entering the wetlands.” 

“This was the sixth stop-work order [Environmental Assessment Office] issued on the project over a two-week period, covering six separate sections of the pipeline route totalling about 30 kilometres altogether,” the spokesperson wrote, noting the company cannot resume construction in those sections until inspectors give the approval.

While The Narwhal observed what appeared to be environmental damage in areas outside of the 11-kilometre zone affected by the stop work order, it is not clear whether regulators plan to take further action.

TC Energy did not respond to The Narwhal’s interview requests and did not provide a statement. On its project website, it noted it had stopped work in the Gosnell area “to implement erosion and sediment control measures to respond to rapid spring melt due to rising temperatures and high snowpack” in conjunction with a provincial stop-work order.

Environment and Climate Change Canada did not provide a comment prior to publication. Fisheries and Oceans Canada, commonly referred to as DFO, did not provide an interview to The Narwhal and noted it is aware of flood conditions across B.C.

“[Coastal GasLink] has reported that they are taking corrective actions, such as conducting downstream water quality monitoring, in a number of locations along the pipeline route to mitigate sediment inputs into fish habitat as a result of high water,” a federal fisheries spokesperson wrote in an email. “Fishery officers continue to work with DFO’s fish and fish habitat protection program and Environment and Climate Change Canada as part of the inspection process.”

Karla Tait, a C’ihlts’ehkhyu clan member and director of clinical services at the Unist’ot’en healing centre, said the government orders don’t appear to be making much of a difference.

“It doesn’t seem like it has impacted the flow of traffic in and out,” she told The Narwhal on a phone call the weekend after the flight. “We travel these roads out here regularly — we live here — and it’s business as usual.”

Tait said the Gosnell plays a key role in the work they do at the healing centre. 

“Historically the government, via vehicles of residential school and the implementation of the Indian Act and reservations, has disconnected us from our land,” she said. “We’ve had residents that come here for land-based healing who don’t really have a safe place to live in our home community, Witset, and who are recovering from addictions or other trauma history.”

Rich in biodiversity, the area is ideally suited to help community members heal from intergenerational trauma by reconnecting them with the land and wildlife.

“My aunt Freda [Chief Howilhkat] mentioned that that swamp land is often where the moose raise their babies,” Tait said. “If it’s getting destroyed by the right of way and the clearing of some of the only remaining old-growth on our yintah, what does that mean for the wildlife that live here that we depend on as well, for hunting and subsistence? And just the health of our territory — every single part of it has a role and is important.”

“Now that we’re finally getting our people to a state and place where they’re healthy and they’re able to embrace their identity, their cultural practices, where are they going to actually learn and do those things that make us Wet’suwet’en if what’s left of our land is destroyed?”

‘We are being policed and criminalized for protecting our right to clean water’

The flight was two days after a trial began for Wet’suwet’en Hereditary Chief Dsta’hyl. Dsta’hyl, a Lihkt’samisyu clan chief, was arrested in Oct. 2021 after a series of interactions with pipeline workers and private security. He is being charged with criminal contempt, for allegedly breaching a B.C. Supreme Court injunction issued to the pipeline company. 

In videos presented as part of the Crown prosecution’s case, Dsta’hyl tells Coastal GasLink workers “that injunction is bogus as hell” and notes the Wet’suwet’en have a Supreme Court of Canada decision on their side, appearing to refer to the Delgamuukw decision.

To Sleydo’, he was simply upholding Wet’suwet’en law. 

“It’s infuriating, because we are being policed and criminalized for protecting our right to clean water and our responsibility to take care of all of the other living beings that rely on it, especially the salmon,” she said.

On the flight, Sleydo’ was accompanied by Gitxsan Chief Hanamuxw, Hooxi’i Kolin Sutherland-Wilson and Kai Nagata. They pointed out the town-like man camp not far from where Dsta’hyl was arrested.

The work camp sits in the mountains close to the crossing of Lho Kwa (Clore River) where Wet’suwet’en Hereditary Chiefs and their supporters alleged Coastal GasLink failed to prevent sediment from entering the river early this year. To monitor the crossing, Tsebasa, a Likhts’amisyu clan chief, and Gary Michell, head ranger for Wet’suwet’en Fisheries, had to fly into the site.

“The fact that you can only see and monitor by air is very concerning to me,” Sleydo’ said, adding the scale of the impacts affirms why she and Dsta’hyl and others have stood against police and security while trying to stop the project from damaging the watershed.

“It validates everything that we’ve been fighting for — the reasons why we’ve been fighting so hard,” she explained. “We’ve been doing everything to protect the water in our territories.”

‘We knew this was coming’

The B.C. Energy Regulator also issued stop-work orders recently, covering different areas — the crossing of Ts’elkay Kwe (Lamprey Creek) and a steep section of the route above a tributary of the Kitimat River known as Cable Crane Hill. At Ts’elkay Kwe, a slope failure caused large amounts of sediment to slough into the creek, a tributary of Wedzin Kwa. Closer to Kitimat, increased runoff from snowmelt overwhelmed mitigation measures and spilled into the water at the bottom of the slope. 

The regulator declined an interview request. 

“This is an ongoing investigation, we will not be releasing further information until the investigation is complete and [Coastal GasLink] has addressed the issues outlined in the stop-work order,” a spokesperson wrote in an email. The spokesperson added “permit holders are required to adhere to regulatory requirements related to the protection of watersheds” which includes making sure construction doesn’t cause areas to become unstable and preventing “deleterious substances, including sediment” from entering the surrounding environment.

Sleydo’ said slope instability created by pipeline construction isn’t likely to go away.

“Some of those inclines, that’s going to be a problem forever,” she said. “CGL doesn’t understand the magnitude of that. They think they’re just going to come in and build a pipeline, grow some grass over the pipeline route and take off. They’re going to be dealing with this for years and years — and we’re going to be dealing with it for decades.”

As sediment from the flooded site in the Gosnell spills into the creek and flows down into Wedzin Kwa, the impacts of the pipeline project are spreading further and mingling with impacts from other locations. 

“It’s very distressing and disheartening, when you consider how important this river is for the remaining wild salmon in the whole river system downstream,” Tait said. “It’s really disturbing to see an area that was really well protected that had kept its integrity for all these millennia be so quickly destroyed — and for nothing, they haven’t even laid the pipe in the area.”

Sleydo’ said the upper reaches of Gosnell Creek are prime spawning habitat for sockeye salmon and Wedzin Kwa provides drinking water to community members.

“It’s like watching a dear loved one get a terminal disease and die. We’re so connected to Wedzin Kwa — she’s a relative, like a grandma or a mother, and it really is devastating on so many different levels to see this happen.”

“We knew that this was going to be the effect of putting a pipeline underneath our sacred headwaters and through all of our salmon spawning streams and all of the creeks that run into Wedzin Kwa. We knew this was coming — and here it is.”

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The mood was sombre at a Wet’suwet’en camp and village site near the confluence of Ts’elkay Kwe (Lamprey Creek) and Wedzin Kwa (Morice River) in the early afternoon on March 29. A group of Wet’suwet’en chiefs, community members, land defenders and their supporters wrapped up a debriefing meeting after five people were arrested and taken off the territory by the RCMP. Then someone cracked a joke and the mood lightened.

“It must annoy them to hear us laughing,” Dinï ze’ (Hereditary Chief) Na’moks chuckled.

That morning, land defenders at the camp watched as a convoy of RCMP vehicles pulled up outside the fenced-off area, according to community members. More than a dozen officers filed through the gates and said they were there to conduct a search, under a warrant issued by the B.C. courts, land defenders told The Narwhal.

“I’m going to ask everyone to leave the area so we can conduct a safe search,” an officer said, according to video footage shared with The Narwhal. “Anyone who refuses to leave the area will be arrested for obstruction,” he added, handing out copies of the warrant. “I’m not going to tell you guys 17 times that you need to leave, so …”

“We need to talk to our lawyer,” one land defender interrupted.

“No, that’s not how this works,” the officer replied.

The land defender insisted they should be given 15 minutes to talk to their lawyer to confirm the warrant was “legit” but the officer said police were not required to provide any time. Staff Sergeant Kris Clark, senior media relations officer with the RCMP, told The Narwhal there was no obligation to provide access to legal counsel prior to the search. After a few seconds and a brief back-and-forth exchange, several officers moved in and started the arrests.

Among those arrested and taken to the Houston, B.C., RCMP detachment was Jocey Alec, daughter of Dinï ze’ (Hereditary Chief) Woos. Several hours later, after being released, she showed The Narwhal her wrists, marked and bruised from the zip tie handcuffs. She said the arresting officer initially put them on too tight, making her hands go numb. Another land defender said they were punched in the head while on the ground, and showed a bruise on their right temple.

Clark, with the RCMP’s media relations, said he was unable to speak to specific allegations but noted there are processes available for those who wish to file a complaint. According to an RCMP statement, four individuals were arrested for refusing to cooperate with police direction and one for attempting to prevent officers from executing the warrant.

“Any allegations of misconduct by the RCMP are taken seriously and will be investigated fully,” Clark told The Narwhal in an email. “I can say that the search and arrests were captured on video which will constitute part of the disclosure for court purposes.”

‘No such thing as Crown land’

The area, about 50 kilometres south of Houston, B.C., has been the site of numerous clashes between Wet’suwet’en land defenders, police and industry workers building the Coastal GasLink pipeline. 

The pipeline is being built to connect shale gas sources in the province’s northeast with two liquefaction and export facilities in Kitimat — LNG Canada and Cedar LNG. It crosses about 190 kilometres of Wet’suwet’en territory. Five of six elected band councils signed agreements with the company and the province in support of the project but the hereditary leadership remains opposed. RCMP have made nearly 100 arrests over the past four years, during conflicts related to the pipeline project.

According to the RCMP statement published following the March 29 arrests, the search was related to an incident that had happened a few days earlier, in which local police received a complaint from a Coastal GasLink security worker. The worker alleged a group of individuals wearing masks and camouflage “fired flares and gained access to the work vehicle when the worker left the area because of the intimidation” at just before midnight on March 26. The police statement added, “these persons allegedly poured liquid onto the vehicle and stole a chainsaw from the truck bed.”

TC Energy, the pipeline operator, declined an interview request and referred The Narwhal to the RCMP for more information.

“We are thankful that no one was injured during this incident,” a TC Energy media spokesperson wrote in an emailed statement. “We will continue to cooperate with the Houston RCMP in their investigation of this and, as always, will prioritize the safety of our work crews and the communities around us.”

The search warrant, issued for theft under $5,000, noted the courts agreed with a Houston RCMP officer that a chainsaw, “olive drab coloured masks” and a pair of “coyote brown fatigues” had been stolen and there were reasonable grounds to believe those items would be found in the Gidimt’en camp. 

Na’moks said he was not previously aware of the March 26 incident and questioned why anyone associated with the Gidimt’en camp would have cause to steal equipment, noting the camp is outfitted with numerous tools.

“Why would anyone here steal a chainsaw?” he asked, pointing to a line of chainsaws in an outbuilding.

The RCMP did not indicate whether they had retrieved any of the items during the search.

“The results of the search are subject to the investigation and no further details are being released at this time,” Clark wrote.

According to the wording of the search warrant, the Gidimt’en camp is on “Crown land.”

To Dinï ze’ (Hereditary Chief) Gisday’wa, who drove out to the location when arrests were underway, it’s a moot point.  

“There’s no such thing as Crown land in Canada,” he told The Narwhal in an interview. “It belongs to us, the Natives.” 

In 1997, the Supreme Court of Canada affirmed the Wet’suwet’en never gave up their Rights and Title to the territory in a landmark case called Delgamuukw-Gisdaywa.

Unlike previous RCMP raids on Wet’suwet’en territory, the enforcing officers were a mix of local police and members of the force’s Community-Industry Response Group, commonly called C-IRG. The C-IRG is a special B.C. unit set up in 2017 to police opposition to industrial projects like Coastal GasLink. In 2019, the B.C. Supreme Court issued an injunction against anyone impeding construction of the pipeline, which set the stage for much of the police enforcement to date.

However, the search and arrests were not an enforcement of the injunction. 

The Civilian Review and Complaints Commission, a federal watchdog agency responsible for responding to allegations of police misconduct, recently launched a systemic review of C-IRG, including an examination of whether its actions are in line with standards and expectations of provincial and federal Indigenous Rights legislation. A spokesperson with the RCMP told the CBC the force is working cooperatively with the commission to make sure it has “comprehensive access and a fulsome understanding of the C-IRG’s policies, procedures, practices, guidelines, training and deployments.”

Adam Olsen (SȾHENEP), a Green party representative and member of Tsartlip First Nation (WJOȽEȽP), questioned Mike Farnworth, B.C. Minister of Public Safety, about the RCMP unit in the Legislative Assembly shortly after the arrests were made. In his question, he referenced a recent government decision to allocate an additional $36 million to the task force. 

“Right now, this crew is rolling, and the minister knows this, on Indigenous people in their own territories, as we speak,” he said. “The extent of the human rights abuses and violations of Indigenous Peoples on their own lands by this unit has not yet fully come to light. How does this government justify giving a controversial RCMP unit tens of millions of dollars, and will this B.C. NDP government stand this militarized police unit down while they’re under this investigation?”

Farnworth said the police have a job to do.

“It costs money to do that. We have to pay for the costs of the policing that takes place in the course of the enforcement of these injunctions,” Farnworth said.

RCMP enforcement in contravention of UNDRIP: Indigenous leaders

The RCMP operations were quickly condemned by human rights advocates and Indigenous leaders.

“Under the governance of their Hereditary Chiefs, the Wet’suwet’en are standing in the way of the largest fracking project in Canadian history — today’s raid constitutes a federal response to Indigenous defense of their land against this fracking project,” Grand Chief Stewart Phillip, president of the Union of British Columbia Indian Chiefs, said in a statement. 

“The rights of Indigenous Peoples to live free of violence and intimidation in their own homelands must never be subjugated to the interests of fossil fuel companies.”

K̓áwáziɫ Marilyn Slett, elected Chief councillor of the Heiltsuk Tribal Council, noted the United Nations Special Rapporteur on the Rights of Indigenous Peoples visited Canada in February and met with Wet’suwet’en Hereditary Chiefs and land defenders, including Woos’ daughter.

“His preliminary report after the visit raised the exact concerns that we have raised again and again — that the criminalization of Indigenous human rights defenders is rampant and must be stopped,” she said in a statement. “Today’s raid is in contravention of the [United Nations] Declaration on the Rights of Indigenous Peoples which both Canada and B.C. have passed legislation to implement, and is a gross display of the ongoing supremacy of the colonial military industrial complex.”

Sleydo’ Molly Wickham, spokesperson for the Gidimt’en camp, said the police actions reflect a long history of injustice to Indigenous Peoples. 

“The constant threat of violence and criminalization for merely existing on our own lands must have been what our ancestors felt when Indian agents and RCMP were burning us out of our homes as late as the ‘50s in our area,” she said in a statement.

Gisday’wa frowned when asked how he felt about the police enforcement.

“What they’re doing out here, they’re just doing that to bully the people here, the land protectors — it’s not right. This is our own land.”

All five land defenders were released from custody and told to appear in court in July.

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It was late evening on an early January weekend when word came that potential environmental damages were underway on a remote, mountainous section of the Coastal GasLink pipeline.

To get its gas pipeline across Lho Kwa, a tributary of the Skeena River on Wet’suwet’en territory, Coastal GasLink seems to have used heavy machinery to dig a holding pool and install pumps, intended to divert the river around the crossing. But according to reports and photos, the company was not preventing sediment from flowing downstream while operating excavators in the river.

Getting up to the construction site at the crossing of Lho Kwa (Clore River) would have meant driving more than two hours from the town of Houston, B.C., on snowy backroads. With no guarantee that private security workers would allow access to the location, allies of the Wet’suwet’en Hereditary Chiefs started calling local helicopter companies. Two days later, they were in the air.

“It was alarming,” Tsebasa, a Likhts’amisyu clan chief who was on the Jan. 10 flight chartered by Skeena Watershed Conservation Coalition, said in an interview. “It’s just really hard to process. I was really quite disturbed by the complete disregard for the salmon, the water, the people — our rights as Wet’suwet’en people.”

Under permits issued by the B.C. Oil and Gas Commission — the provincial regulator responsible for pipelines — the operator is required to install “appropriate erosion and sediment control structures” as a measure to make sure debris and soil don’t end up in waterways. 

But Hereditary Chiefs and their supporters believe that didn’t happen. 

“Here, we’ve had such a blatant ignoring of the rules, showing that violation and infraction of protection of ecosystems and salmon are just considered costs of doing business,” Severn Cullis-Suzuki, executive director of the David Suzuki Foundation, told The Narwhal.

Photos supplied to The Narwhal appear to show construction underway on Jan. 8 with no mitigation structures in place. When Tsebasa flew over two days later, fencing and other measures to control sediment had been added downstream of the crossing.

Too much sediment in the aquatic environment effectively suffocates salmon as it reduces available oxygen. According to Gary Michell, head ranger for Wet’suwet’en Fisheries who was on the flight with Tsebasa, Lho Kwa is spawning habitat for chinook, coho and steelhead — populations that have been in decline for decades.

“Skeena salmon and steelhead are facing many serious threats to their survival; digging up riverbeds without sediment and erosion control doesn’t help,” Michell said in a statement.

TC Energy, the Calgary-based company responsible for Coastal GasLink construction, referred The Narwhal to its website for a statement.

“At all our work sites, including the Clore River, the work we are doing is fully authorized and permitted by our regulators,” the statement said. “We are committed to following all regulations and work with regulators to address any issues.”

For Tsebasa, any further threats to struggling salmon populations are a validation of why the Likhts’amisyu oppose the pipeline. 

“We’ve weighed out the pros and cons for our people, for the land, for the water, and we’ve decided 100 per cent, this is not a good project — not for us, not for the land and not for anybody,” she said.  

Coastal GasLink regularly in non-compliance for sediment control issues

If the allegations are confirmed, this wouldn’t be the first time Coastal GasLink has been found to be violating provincial requirements during construction of its $11.2 billion pipeline.

According to documents obtained by The Narwhal through access to information legislation, B.C. Oil and Gas Commission inspectors identified dozens of instances last fall in which the company was insufficiently preventing sedimentation from entering wetlands and watercourses or its erosion and sediment control measures were in need of maintenance.  

TC Energy did not respond to The Narwhal’s question about whether it considers its prior infractions to be consistent with its statement about pipeline construction being fully authorized. In its online statement, the company noted it is subject to frequent inspections.

“On average, the project is inspected 12 times a month by regulators. Those inspections help ensure Coastal GasLink is meeting the province’s high regulatory standards and protecting the environment at the Clore River.” 

B.C.’s Environmental Assessment Office, which is tasked with ensuring construction is in compliance with the terms of its environmental assessment certificate, has issued 37 warnings and 17 orders over the past two years for infractions, primarily related to sediment.

Last fall, the office told The Narwhal it had conducted “multiple inspections this year along the entire length of the pipeline, by both helicopter and ground, and found ongoing concerns — in particular with erosion and sediment control that could impact sensitive fish habitat.” 

Through its enforcement department, B.C. levied more than $200,000 in fines against the pipeline company. In July, 2022, it entered a compliance agreement with the company to address the persistent problems. But that agreement excludes areas where construction had already started — including Lho Kwa.

B.C.’s Environmental Assessment Office told The Narwhal it received a complaint about the crossing on Jan. 8 and noted the complaint was also filed with Fisheries and Oceans Canada and the B.C. Oil and Gas Commission. It said that the latter is the lead regulator, so it referred the complaint to the commission.

“The Environmental Assessment Office takes matters of non-compliance very seriously,” a spokesperson wrote in an email. “The [office] continues to actively monitor the requirements of the environmental certificate for the … pipeline project on an ongoing basis to make sure Coastal GasLink is meeting them.”

The office added its compliance and enforcement officers “have been finding continued improvement in [Coastal GasLink’s] mitigation measures for erosion and sediment control” over the past two months and noted the company is “cooperatively responding to address any site-specific concerns.”

The B.C. Oil and Gas Commission told The Narwhal the crossing is covered by permits it issued and authorizations under the province’s Water Sustainability Act.

“While the Commission did not receive a formal complaint through our normal process, we were notified, followed up and did not find any non-compliances,” a spokesperson wrote in an email.

‘They’re not doing their job’

In response to the alleged impacts, Wet’suwet’en chiefs and supporters are calling on Fisheries and Oceans Canada to issue a stop-work order.

“If they can’t be in compliance, why should they be allowed to continue to work?” Na’moks, a Wet’suwet’en Hereditary Chief from the T’sayu Clan, told The Narwhal. “It’s so offensive that the province and the feds can stand back and not take responsibility for killing clean water and species like salmon.”

Fisheries and Oceans Canada told The Narwhal it is investigating.

“Fishery officers from the department’s conservation and protection branch are currently looking into the complaint of sedimentation in the Clore River as a result of the work being performed on the [Coastal GasLink] pipeline project,” a spokesperson wrote. “As such, it would not be appropriate to comment further at this time.”

When asked about its relationship with the federal agency, B.C.’s Environmental Assessment Office said it has “collaborative relationships with other regulatory agencies and a good understanding of their mandates and authorities as they relate to specific projects.” 

“If officers identify an issue with compliance that falls primarily under the responsibility of another agency, they will refer the matter to that agency for follow-up,” a spokesperson with the assessment office wrote. “When there is overlap between mandates and authorities, compliance and enforcement officers engage with the other agency to work collaboratively on the response.”

“This is just an example of how our colonial systems fragment the issues into different departments, different offices, different portfolios,” Cullis-Suzuki said. “And yet there are salmon eggs in that river and it’s Wet’suwet’en territory. Nobody seems to know whose responsibility it is to monitor or to enforce against violations.”

She added this jurisdictional fragmentation serves industry interests.

“Businesses are using that, they are working that angle,” she said. “They know that there’s all these different departments and agencies and they’re not waiting for the government to get their end of it in order.”

“That’s why we’re out there monitoring, because they’re not doing their job, obviously,” Na’moks said. He added taxpayers are footing the bill for the policing of a B.C. Supreme Court injunction issued against anyone taking action to oppose the project. “They’ve now spent over $27 million on the RCMP — why didn’t they put that into enforcement and protection of the environment, the water and fish species?”

‘Somebody has to be held responsible’

Cullis-Suzuki called what’s happening on Wet’suwet’en territory “an embarrassment” in light of government commitments made during the recent COP15 conference on biodiversity in Montreal. 

“If we’re serious about halting and reversing biodiversity loss, if we’re serious about having a chance at stabilizing our ecosystem degradation, if we’re serious about protecting salmon, we’ve got to get our systems together so they’re functional.”

“That success — those words, the agreements — completely depends on the ability of governments to hold up their end of the bargain.” 

Tsebasa described her territory as sacred.

“You can hear the mountains talking to you,” she said, describing being on the land doing ceremony. “I know it sounds like a bunch of hocus pocus but it’s just such an incredibly strong place.”

“For me, as the chief that oversees and is the caretaker of this land, I’ve had to go up there, I need to see what’s happening. It’s incredibly devastating.”

“Somebody has to be held responsible for what’s happened up there,” she added.Updated Jan. 15, 2023, 6:30 p.m. PT: A previous version of this story stated that for Tsebasa, a Likhts’amisyu clan chief, any further threats to struggling salmon populations are a validation of why the Wet’suwet’en Hereditary Chiefs oppose the pipeline. The story has been updated to clarify that she is speaking to why the Likhts’amisyu clan oppose the project, and not all Hereditary Chiefs. The story has also been updated to remove a reference to school children.

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Under an early November snowfall, a tense standoff slowly unfolded between Coastal GasLink security workers, RCMP and Wet’suwet’en Hereditary Chief Na’moks.

“If you pass this gate, sir, my understanding is that you will be arrested by the RCMP,” a pipeline security guard told the Chief and his supporters. He was standing in front of a yellow gate across the access road to where the company is drilling under Wedzin Kwa (Morice River) about two kilometres away.

In 2019, the B.C. Supreme Court issued an injunction against anyone “obstructing, blocking, physically impeding or delaying access” in the area.

Na’moks told the security workers why he was there — to monitor the pipeline construction as part of his responsibilities as Chief — and assured them he had no intention of impeding any work. He had previously visited the site numerous times without incident. 

“I am Chief Na’moks of the T’sayu Clan,” he said. “We will not be going into your worksite, we will be staying away from the worksite and on the road.”

“I work for Coastal GasLink and my responsibility is ensuring the safety and security of this active worksite,” the security guard said in response, reading from a prepared script. He provided his private investigator licence number and said he’s employed by Forsythe Security. “This work is lawful, authorized and permitted and we are conducting construction activities for Coastal GasLink. Be advised that there’s a court injunction order with enforcement,” the security guard said.

“Only previously arranged escorted site visits will be permitted for the duration of the work at this site for your safety and to allow our work to continue unimpeded. I ask that you contact Coastal GasLink and request an appointment for access to the site.”

Beside the gate, a sign notes the existence of the court order and states that anyone having notice of it is restrained and prohibited from physical interference with Coastal GasLink business. It also states that individuals are prohibited from “approaching within 10 metres of any individual or vehicle” being used for pipeline work and from “threatening or intimidating Coastal GasLink or other persons in a contractual or economic relationship with Coastal GasLink.” 

However, the court order does not mention “threatening or intimidating” nor proximity to employees or vehicles. TC Energy did not clarify why these terms are included in the signage.  

Canadian courts have confirmed that journalists have a Constitutional right to document events in an injunction zone and that injunctions do not apply to any journalist who is collecting or gathering information without interfering. A recent court decision has also warned that police should avoid interfering with the work of journalists by detaining them under an assumption that they would be released later. But the security guard suggested otherwise, warning The Narwhal not to cross the line.

“Based on what I’ve read to you, anybody passing this that is not an employee and does not have a right to be here, including the media, will be arrested by the RCMP,” the security worker told The Narwhal.

When asked about the incident, Madonna Saunderson, with the RCMP’s media relations team,  said “the RCMP play an impartial role in the activities taking place along the Morice [forest service road] and engage where there are complaints of infractions breaching or contrary to the terms of the civil injunction that is in place.”

“The decision to arrest anyone in contravention of the laws, or breaching a court imposed injunction is done on a case by case,” Saunderson said, noting the RCMP do not moderate what happens at the gate. 

“Forsythe Security is responsible for engaging with individuals at their gate,” she wrote. “Any questions with regard to their processes and security interactions should be forwarded to the Forsythe Security team leads. The RCMP’s role is to address any criminal matters when they are called to attend.”

A representative from Forsythe Security reached by phone told The Narwhal they would look into the matter but declined to comment.

Despite repeated requests, RCMP did not speak with Hereditary Chief

The role of the security firm in working for the pipeline company has not been without controversy. Wet’suwet’en community members have accused the RCMP, Coastal GasLink and Forsythe of a “relentless campaign of harassment and intimidation” in a civil lawsuit filed with the B.C. Supreme Court this summer. Forsythe denied any wrongdoing in its response and the allegations have not been proven in court.

When RCMP arrested journalists reporting on Wet’suwet’en resistance to the pipeline project last year, internal police emails promised a “package” that would justify their actions. That package has yet to materialize and Coastal GasLink subsequently dropped the charges.  

TC Energy did not directly respond to questions about why Chief Na’moks was denied access nor whether it believes a journalist should be arrested for documenting within an injunction zone.

“The safety of our workforce, contractors, local Indigenous and non-Indigenous community members and the public is paramount to us,” the company wrote in an email. “Coastal GasLink has an obligation to control access to its worksites to ensure the safety of both the public and its workers which includes restricting access to existing roads, trails and travel ways at active work areas. Safe access for community members is facilitated through a defined process that has been communicated to the Office of the Wet’suwet’en, Hereditary Chiefs, elected Wet’suwet’en leadership and house members.” 

Kris Statnyk, Na’moks’ legal counsel, was standing at the gate with him. He asked to speak with the RCMP, noting the private security workers do not have authority to enforce the court injunction. 

After about twenty minutes, Sergeant Jason Charney, with the force’s Community-Industry Response Group, walked toward the gate, but stopped short and waved a security worker over. They spoke briefly and Charney walked away. The Community-Industry Response Group, commonly called C-IRG, is a special unit of the force set up in 2017 to police opposition to industrial projects.

The worker told Na’moks to telephone Ken Floyd, a senior C-IRG officer. No number was provided and cell reception is about an hour’s drive away on the snowy backroads.

Statnyk called after Charney, asking to speak with him and requesting dialogue with a member of the division liaison team, who are often referred to as Indigenous liaisons. The RCMP’s description of C-IRG notes it “uses a measured approach in facilitating the peaceful resolution of public disorder issues” and members of the unit “proactively engage all stakeholders through open communication and meaningful dialogue.” The division liaison team was formed to “build relationships with various interest groups and communities so that we may assist in facilitating a safe environment for everyone exercising their charter rights.”

Charney stopped, turned around and looked back, then continued walking away.

In an emailed statement to The Narwhal, Saunderson, with the RCMP, said members of the division liaison team are “generally not on site.”

“If there’s anything illegal here, it’s happening to me,” Na’moks said. “Threats don’t scare me. They wish to arrest me? Show me the law that they have the right even to detain me.” 

Tensions are rising as Coastal GasLink continues construction

The confrontation reflects rising tensions as the Coastal GasLink project construction continues  on Wet’suwet’en territory. According to the project website, 100 per cent of clearing on the territory is completed, with 14.3 per cent of the pipe already in the ground.

Alberta-based TC Energy, the pipeline operator, regularly notes the project has the support of 20 First Nations along the route. But Coastal GasLink did not receive Free, Prior and Informed Consent from the Wet’suwet’en Hereditary Chiefs, who famously won a Supreme Court of Canada case that confirmed the Wet’suwet’en had never given up Rights and Title to the 22,000 square kilometre territory. 

In April, the United Nations Committee on the Elimination of Racial Discrimination issued Canada a third rebuke for its conduct on Wet’suwet’en and Secwepemc territories. It named C-IRG specifically and reiterated its call to withdraw police and private security services. ​

Prior to being denied access to the drill site, Na’moks visited another section of the pipeline project, where it crosses Ts’elkay Kwe (Lamprey Creek) just a few hundred metres from a Gidimt’en camp and village site. 

There, another security worker read him a different prepared script and did not stop him from observing the work, noting the court injunction relates to any action that impedes construction. 

“You’re more than welcome to walk up and down this forest road,” he added.

Na’moks stood looking at the vast worksite and said it used to be a forested ravine, with the creek at the bottom. Now, the landscape is significantly altered by blasting and grading with heavy machinery. Speaking over the sound of bulldozers and industry trucks, he told The Narwhal people need to know what’s happening. 

“They’ve killed this creek,” he alleged, watching the machines scrape the land. “I can look at it: it’s dead. We grew up here, we know.”

TC Energy did not respond to the Chief’s comments directly but wrote in an email: “Lamprey Creek remains flowing and controlled blasting was not done in the creek.”

As The Narwhal recently reported, Coastal GasLink didn’t directly inform those at the Gidimt’en camp, less than one kilometre away, before conducting blasting activity, according to Gaylene Morris, a member of Likhsamasyu Clan. 

TC Energy told The Narwhal in a previous statement it notified neighbouring communities as part of a general blasting notification and provided local notification around the area in advance of the work. The company also stressed that the activity did not directly impact the creek. 

“Controlled blasting activities by Lamprey Creek are part of ongoing clearing and grading activities around the creek … Furthermore, mitigation measures are in place to protect the creek during construction and in accordance with regulatory requirements.”

“What does the future really look like?” Na’moks asked, pain and anger evident in his eyes and grimace. “There has to be a huge shift in the mindset of government if we want this country to remain democratic and strong and free, because right now this is not Free, Prior and Informed Consent. We’ve never agreed to this and we never will. We’re doing our part to protect the planet, protect our land, Rights and Title, our humanity. And this is what we get.”

‘Threatened with arrest’ by Coastal GasLink security 

Back at the gate, Statnyk was growing frustrated.

“You’re being completely uncooperative,” Statnyk told the security workers, after his requests for more information and a means to resolve the standoff without having to drive more than 60 kilometres were unsuccessful. 

“You’re going to restrict this Hereditary Chief from peacefully monitoring, which is part of his cultural responsibilities, this ongoing work … He needs to be able to monitor damage to those rights at all times. He’s not looking to interfere with any work whatsoever and the suggestion that walking past this gate is interfering with anyone’s work is laughable.”

Na’moks was quietly livid. His hands shook as he lit a cigarette.

“I’ve just been, as a Hereditary Chief, threatened with arrest on [my] own territory,” he said.

The security worker said it was not a threat: “There’s no threat at all,” he said, laughing. “I’m simply stating. If, if, if you convey that, or, or can see that as being a threat then …”

“That’s exactly how I perceive that,” Na’moks said, cutting him off.

“The human rights abuse here, the Indigenous Rights that are being stomped upon — in one sentence, all of that threat is there,” he continued. “How do I feel? I feel like I’m Wet’suwet’en. I have the right to monitor our land as the Chiefs have been mandated when we become Chiefs. [Canadian] law just happened, they made it up. Our law has been here for thousands of years.”

When able to place a call, Na’moks tried to contact Ken Floyd via the RCMP’s North District media relations officer, Corporal Madonna Saunderson. He left a detailed voicemail but there had been no response prior to publication. 

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“We were detained for days in cold cells. They took most of our clothes, denied us soap and toothbrushes, and only allowed us to speak to our lawyers.”

On its website, Reporters Without Borders has a brightly coloured interactive map of the world illustrating the results of its World Press Freedom Index, which identifies nations deemed to adequately uphold press freedoms within their borders. Green indicates countries with a “good situation,” yellow means “satisfactory,” light orange is “problematic,” dark orange is “difficult,” and red is “very serious.” The Arab region, including Egypt, where I have roots, is largely and unambiguously demarcated by red, while Canada is yellow.

And yet the opening quote was not uttered by a journalist from the red or orange nations. These are the words of photojournalist Amber Bracken, detailing her treatment at the hands of the RCMP in Canada last year. And they are hauntingly similar to words we have read and heard frequently from journalists working under seemingly impossible circumstances in countries relegated to the inglorious lower levels of the press freedom rankings.

If the red areas on the world map represent an information gap, dark red cracks have gradually been tarnishing Canada’s bright yellow reputation. On Nov. 19, 2021, two journalists, including Bracken, and several protesters, including Sleydo’ Molly Wickham, a wing Chief of the Gidimt’en clan, and Jocey Alec, daughter of Hereditary Chief Woos, were arrested on the Coastal GasLink drill site near the Wedzin Kwa (Morice) River in British Columbia.

As well, since a May 2021 injunction against the Fairy Creek blockade, more than 1,100 protesters have been arrested on southern Vancouver Island as they fought to protect what remains of our old-growth forests and First Nations territories. During the blockade, the largest act of civil disobedience in Canadian history, the media was shackled behind a vast exclusion zone, with the RCMP initially prohibiting all journalists from entering the area.

On the day of the Coastal GasLink arrests, I felt the need to rub my eyes when I read a headline calling into question Canada’s press freedom. Was I reading this right? Surely there must be a mix-up. And when I read of the attempt to block the collection and dissemination of information on the Fairy Creek protest, I thought of the media blackout in Egypt during the early days of the 2011 Revolution. With tens of thousands of people on the street demanding their basic rights, the state-controlled broadcaster continued to present its regular programming, completely denying the reality unfolding on its streets. What was that if not a clear example of democratic failure?

For more than a decade, I have studied and worked on media in areas that include some of the most commonly cited violators of press freedom in the world, researching and writing on the Arab region and its media landscape for international media outlets, commentary websites and academic journals. I began my career hungry to change stereotypical representations of Arabs in the West, and became engrossed in the intricate and at times dangerous web of the region’s diverse and complex media systems. Implanting myself in them seemed like the only fair way to make my own determinations on the narratives of oppression and censorship.

By virtue of genetics and close family ties, I have always felt a deep connection to the Arab region, and to Egypt specifically. My father moved from there to Canada in 1969 to complete his PhD at the University of Waterloo, where he met my Saskatchewan-born mother, who was also pursuing her PhD. I have existed in an odd balance, firmly Canadian but abundantly aware of my roots and the responsibilities that I internalized as a result of those roots. But if I were to be truly, uncomfortably honest, my relationship to the Arab region within the context of my work has always been from the vantage point of looking in from outside — even, dare I say, from above — holding pride and confidence in the freedoms afforded to us as Canadians, and as Canadians working on or in the media.

I feel certain I am not alone in these sentiments. As Canadians born here, as well as new immigrants and aspiring ones, we all believe ourselves to belong in the yellow. And we are perceived as such.

We are a refuge. We are a representation of safety, of inclusion, of freedom. We, as a nation, are aspirational to so many. And yet for many of our own, we continue to fail.

This should not be a heavy burden to bear, but rather an incentive to strengthen and reinforce the values that have afforded Canada this reputation. It should be an incentive to fully embody these ideals by, for example, breaking the pattern of misrepresentation and underrepresentation of Indigenous and First Nations communities, while standing against violators of human rights and press freedoms elsewhere.

Unfortunately, for individuals immersed in this subject a fatigue can begin to emerge, and often with it a regrettable complacency. It took a murder as ghastly and shocking as Jamal Khashoggi’s for me, and much of the world, to re-examine the degree of danger faced by journalists in the regions I study and beyond. Reports of journalists being arrested, detained, gagged, harassed or worse are so common that one barely feels compelled to read the headline in its entirety — exhausted by the frequency of such reports, and unwilling to fully face the feeling of helplessness that comes with it.

When one digs a little deeper into our own Canadian failures when it comes to democracy, representation and press freedom, a complicated picture emerges, one that echoes the fatigue and helplessness I have felt so frequently working on media in the Arab region.

In 2018, while exploring media coverage of Indigenous issues in Canada, veteran Mohawk journalist Dan David reflected on the explanations he had received as a young local news reporter in the Prairies for why Indigenous issues were covered so poorly. David wrote that he was given the usual excuses: Time. Tight schedules. Inadequate resources. Dependence on advertisements for goods and services that would not be purchased by poor people.

But David was also given another explanation for the lack of coverage: No journalistic payoff. While journalists thrive on exposing corruption and injustice, the non-financial remuneration for that work is the knowledge that it has had a positive impact — and most of the time, that is not the case. “Stories about Indigenous communities never went anywhere. Things never changed,” he wrote.

While David admits that there has been progress since the informal survey he conducted as a young man nearly 30 years ago, other journalists have identified a pattern of something even more disturbing than the systemic negligence toward Canada’s Indigenous communities: a planned and aggressively enforced prohibition of coverage. So what happens when something that has long been ignored ceases to be ignored? For our purposes, we must also interrogate what happens to the journalists who dare to cover it.

In any context where financial, political or religious interests are at play, there exists a tension between journalists’ incentives for coverage and the incentives of those in positions of power to limit or control the coverage of certain issues. Unfortunately, it is almost always the journalists who are at a disadvantage, with more to lose. While the degree of risk varies by issue and region, that tension exists from Riyadh to Regina. In the arrests of Bracken, her colleague Michael Toledano and so many others, we see the price of fighting to hold power to account.

I am not the first to draw comparisons between the failures of Canadian democracy and those of our authoritarian counterparts. Global News reporter Paul Johnson likened the restrictions imposed on reporters covering Fairy Creek to those he had faced while reporting in places such as China. And in response to the same events, the president of the Canadian Association of Journalists, Brent Jolly, decried the attempts by the RCMP to “hide behind a curtain and execute their orders in complete darkness.”

“Maybe that’s OK in a dictatorship,” said Jolly, “but it’s not acceptable here in Canada.”

Dark red cracks.

I, like so many other journalists, media researchers and communicators, entered this field — forgive the colloquialism — bright-eyed and bushy-tailed. My optimism in the power of the word, and its ability to change narratives and consequently the lives of underrepresented or inaccurately represented populations, is squarely rooted in my Canadian-ness.

It is for this reason that the arrests of Bracken and Toledano — and other similar events, particularly those relating to the coverage of Indigenous land defenders — are so jarring, and such a big deal. The point is not to compare the press freedom violations that occur in Canada with those that take place in more oppressive or authoritarian countries or contexts. The point is to hold up a mirror to the actual exercise — successful or not — of our ideals. The point is to examine the dark red cracks in the yellow concrete of our democracy and mend them with care and accountability. And those cracks are growing deeper. When I originally wrote this piece in 2021, Canada was ranked 14th on the World Press Freedom Index. Since then, it has fallen five spots, to 19th.

It is the similarities between the red and the yellow that we should all be concerned about — similarities that call into question our democracy, and the very fabric of our society.

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This week Wet’suwet’en Hereditary Chiefs welcomed a delegation from across the country and beyond to the yintah (territory) for a Peace and Unity Summit. Through the four-day event, the chiefs brought together Indigenous leaders, politicians, conservation groups and others to uplift Indigenous sovereignty, share space and join in solidarity with the Hereditary Chiefs in their opposition to the Coastal GasLink pipeline.

“It’s really heartwarming to see all the people coming together in peace and unity across Canada to maintain the solidarity of the Wet’suwet’en,” Dinï ze’ (Hereditary Chief) Madeek told attendees at the event. 

“You make history by being peaceful. By being here, being together, being united, knowing that we all have the same heart,” Dinï ze’ Na’Moks said.

Arrests weren’t part of the plan.

But on the morning of the first day, July 26, more than 30 attendees witnessed a land defender get arrested by the RCMP. They had just travelled the 110 kilometres from Smithers, B.C., to the Gidimt’en camp — a reoccupation of the yintah and village site. They were there to see a feast hall that is being built, meet those living on the land and then go rafting down the Wedzin Kwa (Morice River). As people were starting introductions, a land defender shouted, “someone is getting arrested right now, we need people over at the bridge.”

The guests of the chiefs — which included Cedar George-Parker from the Tsleil-Waututh Nation, several other Indigenous leaders, Sonia Furstenau and Adam Olsen, from the B.C. Green party, Severn Cullis-Suzuki, executive director of the David Suzuki Foundation, and other allies — raced over to see what was happening. 

Members of the Community-Industry Response Group, a special unit of the RCMP tasked with policing opposition to resource extraction projects including the Coastal GasLink pipeline, were doing what they described as “routine patrol.” During this patrol they say they saw a vehicle that was the subject of “several complaints from the previous week” and when approached it a passenger continuously blasted an air horn leading to his arrest, according to a statement, released July 28.

As the arrest was happening, some land defenders blocked in the police vehicle, telling the officers inside they were not permitted under Wet’suwet’en law to remove the individual from the territory. With the police suddenly surrounded by supporters and facing a crowd, a standoff commenced.

“He’s being detained for mischief because he blew an air horn,” one land defender told The Narwhal as she pounded on the window of the RCMP vehicle, demanding his release.

The majority of visitors to the territory watched the events unfold as land defenders engaged with the police. Standing on a bridge facing the RCMP vehicle in which the arrested individual was placed, they took pictures, filmed with their phones or simply stood and watched. 

The RCMP’s statement described those witnesses as “protesters from the nearby encampment” and said they surrounded the police vehicle.

“We have been here for the last few days as invited guests,” Sonia Furstenau said to the group after reading the statement. “We are not protesters. You are not protestors — this is your land.”

“To immediately be swept up in a clearly violent situation, I think was really good for us to experience as outsiders because that’s just the day-to-day, you know?” Cullis-Suzuki told The Narwhal the following day. For the past several months, RCMP has conducted daily patrols at and around the site, sometimes in the middle of the night. They made several arrests and ticketed people travelling on the dirt and gravel backroads for the likes of illegible licence plates. She said it was evident to everyone present that those who were caught up in the situation didn’t do anything wrong.

“What I’m trying to process is how you don’t really realize the lens with which you’re seeing the news or the images that come to you through screens,” she said. “The narrative is that land defenders are criminals — they’re violent, they’re threatening and police forces are protecting. But this is just existence on the land. This is the right of Indigenous people here in Canada and they’re basically being harassed at great cost to them and their families, on the daily, for exercising their right.”

‘We need to be relentless in our efforts’

John Brewer, commander of the Community-Industry Response Group, did not respond to The Narwhal’s request for interview and the RCMP’s media relations team referred The Narwhal to the statement on its website. In that statement, Brewer said his officers handled the situation properly but noted, “situations like these when attempts to intimidate and harass the police while executing their duties will not be tolerated. Violence is criminal and we will take action against anyone participating in these unlawful practices.”

That day, a decision was made for the group who was there to continue to Wedzin Bin (Morice Lake) and go on the rafting trip. But, due to the interactions with police, the road was blocked leaving some participants including Elders and Hereditary Chiefs, unable to get to the camp and share space with the group. Dinï ze’ Madeek told The Narwhal later the Elders started overheating in the vehicles and had to turn back.

Police subsequently arrested a second land defender for mischief and assault — the latter for allegedly “banging a drum near an officer’s head” — and released her with conditions which include not being within five metres of a police vehicle and not drumming within 10 metres of RCMP officers. 

Throughout the rest of the Peace and Unity Summit, dignitaries including Grand Chief Stewart Phillip, Amalaxa Louisa Smith, Kukpi7 Judy Wilson and others spoke about Indigenous Rights and sovereignty, injustice, human rights, climate change and more. They also shared their perspectives on the Wet’suwet’en struggle to protect the yintah. 

“We need to be relentless in our efforts,” Grand Chief Stewart Phillip said in his opening address. “And we know the enemy’s oil and gas and the emissions that they create which is responsible for global warming. The climate crisis is man-made. Make no mistake about it, it’s man-made.”

“I admire those that have put themselves in harm’s way and have been carted off to jail,” he added. “You’re the heroes of our people, of our generation.”

‘In your DNA forever’: Wet’suwet’en Hereditary Chief

The Hereditary Chiefs and event organizers wanted the first day of the summit to be a joyful experience centred on the connection to the land and water — what Wet’suwet’en land defenders and their allies have been trying to protect for years.Once on the river, tensions dissolved. Participants shared stories and laughter and cooled off swimming in the glacier-fed water. Chinook smolt darted around the rafts on the shoreline. The group was taken to an ancient village site and shown culturally modified trees while grazing on wild berries. They drank straight from the Wedzin Kwa.

“You can jump into the river with your mouth open,” Simon Stockner, one of the raft guides with Skeena Watershed Conservation Coalition, told those on his boat. 

Dinï ze’ Na’Moks told The Narwhal this was part of the plan.

“Once you drink from the Wedzin Kwa, it’s in your DNA forever,” he said. He and others organizing the multi-day Peace and Unity Summit wanted people to feel the land beneath their feet, breathe the air and taste the water directly from the river.

“I saw power yesterday in a couple of different ways,” Adam Olsen (SȾHENEP), Green party representative and member of Tsartlip First Nation (WJOȽEȽP), told The Narwhal on July 27. “The power that we derived from the land and the water, dipping your drinking cup into a pristine river and fearlessly drinking from it.”

But, he said, he also saw the power that comes from fear when he witnessed the arrest. 

“My initial response when I was standing on the side of the road and heard that there was an arrest going down, I thought, wow, it’s like a peacock fanning its feathers,” he said. “In order for that fear-based power to be of any threat whatsoever, it’s got to be exercised and they were exercising it yesterday in front of all of us, just to show us who’s boss.”

“But really it was very clear that the pureness of the power derived from the land and the water is far superior,” he continued. “And it’s only a show of force that is being demonstrated to protect the interests of resource extraction.”

Wearing wetsuits and lifejackets, people were met with drones, video cameras and barbed wire fencing 

Later in the day, the group stopped for a snack and a swim. The water was icy but refreshing under the hot sun. 

Before continuing the trip, Brian Huntington, lead guide and co-founder of Skeena Watershed Conservation Coalition, gathered everyone to say a few words. Huntington is a settler living on Gitxsan territory who was adopted into Wilp Gwininitxw in the Gitanmaxx feast hall in 2007 and given the name Ts’uup Lak’insxw. Dinï ze’ Na’Moks and Sleydo’ Molly Wickham asked him to guide the group and share the knowledge that they had shared with him over the years.

He told the group that the next stop was the site where Coastal GasLink is preparing to drill and lay its pipeline under the river. The pipeline, which is owned by Calgary-based TC Energy, recently revealed its estimated costs have skyrocketed from its previous $6.6 billion to $11.2 billion.

Huntington gently explained the starkness of the contrast between the river and the worksite and said this moment together would help prepare everyone to bear witness.

Travis Pete, one of the guides and a member of the Gidimt’en Clan, invited Cedar George-Parker, from the Tsleil-Waututh First Nation, to sing a song. His booming voice and the constant bubbling of the river blanketed the group and the mood became sombre and reverent.

At the drill site, a surreal scene unfolded as members of the group were met with private security behind barbed wire fences, drones flying overhead, the heat from the sun rippling off concrete. One security worker, as he filmed the group, talked about the B.C. Supreme Court injunction issued against anyone opposing the pipeline project. 

“It was interesting to see the response to 30 people coming up from a river in wetsuits and life jackets,” Olsen said. “The response was drones and repeated canned messages and video cameras.”

“The money, the anger, the violence is just so over the top,” Cullis-Suzuki said. “It’s just so clearly evil.”

‘Warriors for peace and healing’

The raft trip ended at the Unist’ot’en healing centre, where matriarchs, chiefs and land defenders were arrested in 2019 under the terms of the injunction.

Welcomed with a song by some of the women who were arrested that year, including Tsake ze’ Howilhkat Freda Huson and Karla Tait, the group was served herring roe on kelp and salmon, washed down with more water from the river. 

“It was an amazing way to end the day,” Cullis-Suzuki said. “To end with these warrior women who are warriors for peace and healing. They have been framed as violent criminals on the outskirts of society.”

Huson recently received international recognition, winning the Stockholm-based Right Livelihood award “for her fearless dedication to reclaiming her people’s culture and defending their land against disastrous pipeline projects.”

Cullis-Suzuki said it’s an apt illustration of how Canada treats Indigenous people.

“It shows how Canada might see these leaders as eco-terrorists but outside countries — more advanced countries — recognize that these are leaders that are fighting for intergenerational justice and human rights.”

Throughout the event, speaker after speaker talked about how their spirits were lifted by coming together and sharing space and feeling the strength of Indigenous leadership. As the event came to a close on July 28, Dinï ze’ Na’Moks summarized and thanked everyone for coming.

“Let that violence come at us — that is now our life. But you know what? We will not react with violence. We will not stoop to their level. We are Wet’suwet’en and we will remain because we have that love for the land, because we have that love for humanity, because we have that love for the future. It’s a fact: we can change the world together.”

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This article contains a reference to residential schools that may be triggering. Support for survivors and their families is available. Call the Indian Residential School Survivors Society at 1-800-721-0066 or 1-866-925-4419 for the 24-7 crisis line. 

B.C.’s attorney general will pursue criminal contempt charges against Indigenous land defenders and supporters arrested last November in northwest B.C. In a now-infamous RCMP raid on Wet’suwet’en territory — the third such operation in three years — heavily armed police enforced TC Energy’s court-ordered injunction issued against anyone impeding construction of their Coastal GasLink pipeline, arresting more than 30 individuals over two days. 

On July 7, the province’s legal team told B.C. Supreme Court Justice Marguerite Church it would prosecute Sleydo’ Molly Wickham, Shaylynn Sampson (Gitxsan Lax Gibuu Wilp Spookxw), Teka’tsihasere Corey ‘Jayohcee’ Jocko and Hannah Hall. The decision brings the total to 19 individuals arrested during the raid that B.C. Prosecution Service will pursue criminal charges against in the coming months. The prosecution service operates independently of the governing party — the premier and ministers are intended to have no influence on the legal process and have no power in determining whether a particular prosecution or appeal should be undertaken. Those decisions lie with the attorney general, who is appointed by the premier to act independently.

The court invited the province’s prosecution service to pursue charges against land defenders and supporters after arrests in 2019 and 2020. This is the first time B.C. has agreed to proceed with prosecution — and so the first time land defenders could face prison sentences for their actions.

Those arrested say they were protecting Wet’suwet’en lands and waters and upholding sovereign Indigenous Rights and Title as per a 1997 Supreme Court of Canada ruling. The province and Mounties say they were participating in unlawful protest, breaching the terms of the B.C. Supreme Court injunction order.

“I’m really disappointed with the outcome, especially because three out of the four people that are now facing criminal charges are Indigenous people with a voice, the ones that have had a really strong voice,” Wickham told The Narwhal outside the Smithers, B.C., courthouse after the hearing. 

The province declined to prosecute eight others, including Jocelyn Alec, daughter of Dinï ze’ (Hereditary Chief) Woos, on whose house territory the arrests were made. Among those facing criminal charges is her fiancée, Jocko, who was with her when both were arrested. 

When making its assessment, provincial lawyers had to consider two things: the likelihood of securing a conviction and whether it’s in the public interest. The decision not to pursue charges against Alec and others hinges on the fact that the RCMP didn’t do enough to inform individuals about the nature and scope of the injunction order. 

“They didn’t have a copy of it with them and they did not even make an effort to really tell people what it was about,” Frances Mahon, legal counsel for a majority of the land defenders, told The Narwhal. 

Sworn affidavits the Mounties filed with the court affirmed that on Nov. 18, 2021, “Inspector Ken Floyd read the injunction at the 44 kilometer [sic] marker of the Morice West” Forest Service Road and “reread the injunction a second time at the same location.” The affidavits also affirmed that on the following day, deeper on the territory and at a location where land defenders were inside a cabin and tiny house, Floyd “read the injunction to the protestors barricaded” inside the two wooden structures at 11:30 a.m. and 11:46 a.m. 

According to The Narwhal’s review of audio and video recordings, Floyd simply noted the existence of an injunction order and failed to provide details of the terms. Speaking about the charges that aren’t being pursued, B.C.’s prosecutor Tyler Bauman came to the same conclusion and told the court, “The script read by the RCMP was limited to road blocking and did not include the broader language of the injunction.” 

The RCMP declined to speak with The Narwhal, noting: “Our actions and those of the individuals arrested are subject to a judicial process that we must respect.” The B.C. Prosecution Service declined to answer questions for the same reason.

Provincial lawyers will argue that the individuals now facing criminal contempt charges had either been previously arrested, and therefore could not claim ignorance of the contents of the injunction, or were active on social media in defiance of the court order.

As for the issue of whether prosecution is in the public interest or not, Mahon called it a “nebulous concept” but suggested a driving factor is “the integrity of the court is being called into question.”

‘Mass revolt against the authority of the court’ 

Breach of the injunction is a civil matter, which means it’s between private parties, in this case between Coastal GasLink and the individuals alleged to have impeded construction. For civil contempt, the company’s legal team can choose whether or not to pursue charges. Now that the province is intervening on grounds of criminal contempt, the company is no longer involved and it becomes a public matter.

The company’s legal counsel, Kevin O’Callaghan, declined an interview request and referred The Narwhal to TC Energy, Coastal GasLink’s parent company. TC Energy did not directly answer The Narwhal’s questions and referred to a statement published on its website.

“Since December 2018, Coastal GasLink has dealt with numerous violations of enforceable B.C. Supreme Court injunctions from individuals who have engaged in escalating disruptive and dangerous actions,” the statement said.

“We are committed to delivering this critical energy infrastructure project and any risk to the safety of our workforce or others in the vicinity of the project route is of the greatest importance. Our work is fully authorized and permitted and has the unprecedented support of local and Indigenous communities across the project route.” (On Wet’suwet’en territory, the company has signed agreements with five of six elected band councils but the nation’s Hereditary Chiefs never consented to the project.) 

Criminal contempt isn’t the same as a criminal charge for, say, theft or assault. Instead, it means the province believes “the accused knew … their conduct constituted a public defiance of a court order,” according to a B.C. Civil Liberties Association report. As the report notes, that public defiance can include breaching the terms of an injunction “in front of television cameras or on social media platforms, such as Facebook or Twitter.”

Neil Chantler, a defence attorney who represented numerous clients arrested at protests of the Trans Mountain pipeline, said the term “criminal contempt” is confusing.

“As soon as you’re encouraging, perhaps by your actions, other people to commit contempt of court, to disobey court orders, which the court of course relies on … you’re committing criminal contempt,” he explained.

“In these cases where there are so many people involved and the court’s integrity and authority is perhaps at greatest risk of being undermined because there’s almost a mass revolt against the authority of the court, the court invites the Crown to prosecute, as opposed to leaving it to the private party to prosecute.

If convicted, the individuals could serve up to 30 days of jail time, 150 hours of community service under the supervision of a probation officer or pay $3,000 in fines, according to sentencing positions filed with the courts.

“We are prepared to fully defend against the allegations,” Mahon said.

Upholding ‘colonial laws’

For Wickham, the escalation of charges from civil to criminal is in line with the history of colonization.

“All of the laws that have existed since contact with Indigenous people have been absolutely horrific and used for genocide,” she said. “It actually blows me away that people uphold colonial law in the way that they do — colonial laws put our kids in residential schools. They literally forced mass sterilizations and murder of children and babies. And those are the laws that are being upheld in this country.”

Murray Rankin, B.C.’s Minister of Indigenous Relations and Reconciliation, declined an interview request and the ministry referred The Narwhal to the prosecution service in response to questions.

Chantler said it’s important to remember that the province approved these projects that sit at the centre of conflicts.

“These environmental disputes, these resource extraction cases that have been before the courts so often in the last 10 years, are a failure of government, and the failure of government is a result of people voting for these governments.” 

He added that he believes civil disobedience has its place, particularly when Indigenous Rights are in play.

“It does continue to raise awareness and it does shine a very bright spotlight on an issue,” he said. “People are willing to put their own liberty at risk and get arrested over these things. I think it’s a tremendous call and a real sacrifice to get arrested and potentially get a record and to potentially do time for a cause you believe in. But it’s a losing battle. I mean, at that point, all you’re doing is public relations, you’re not actually going to stop the project.”

Wet’suwet’en connection to the land remains strong

Prior to the enactment of laws that now dictate what happens to those facing contempt charges, the Wet’suwet’en and other nations lived under complex governance systems for thousands of years.

“Our laws don’t mean anything to [Coastal GasLink], or to the courts or to, you know, most of mainstream society. It’s infuriating and frustrating,” Wickham said. 

While visibly shaken, she wasn’t swayed by the decision.

“The whole criminalization process is meant to deter us from doing what’s right but I’m not going to be deterred from upholding our laws and protecting our land.”

Despite a steady stream of industry traffic and construction activity, coupled with the continual presence of police and private security, Wet’suwet’en community members and their allies continue to reconnect with the land, water and wildlife on the territory. 

“Recently we had a young Indigenous person get his first kill out there,” Wickham said. “We tanned the hide with all the kids and processed all the meat and we’re going to have a ceremony for him to celebrate.”

She added Wet’suwet’en youth are helping build a balhats, or feast hall, at the confluence of Ts’elkay Kwe (Lamprey Creek) and the Wedzin Kwa (Morice River), which will provide a space for Elders and young families to connect with each other and the land.

“There’s all these beautiful moments and times and experiences, those little snippets of what it actually feels like to be who you are,” she said. “Those are the moments that keep Indigenous people’s spirits alive. I’d go to jail for that, for that one moment.”

Updated on July 19, 2022, at 7:07 a.m. PT: This story has been updated to clarify and add an explanation of the B.C. Prosecution Service’s role and relationship to the B.C. government, and to remove references to the B.C. ‘Public’ Prosecution Service. The prosecution service, and Crown counsel employed by it, act independently of Premier and Cabinet, as representatives of the attorney general.

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All at once, RCMP officers came out of their hiding spots to fill the courtyard surrounding a tiny house at a site known as Coyote Camp in Wet’suwet’en territory. Police wore both regular blue uniforms and a militarized green version, the latter laden with assault rifles and tactical equipment. The scene has already become known across Canada — police dogs barking and whining as officers used an axe and a chainsaw to enter the small structure to arrest seven unarmed and peaceful individuals. 

Soon they would take my cameras from me. After that, my rights.

Some of the first advice I was given as a baby journalist was: “Don’t get arrested. You can’t make any pictures from the back of a police car.” This maxim has served me well most of my career, which has taken me into zones of conflict and protest across North America.

But covering the Wet’suwet’en pipeline opposition last month, I realized its limit: I could not both do my job as a journalist and avoid arrest. On Nov. 19, the RCMP made that impossible for me.

Being a photojournalist stripped of my gear in a moment of profound national importance heightened my senses. 

As I’m escorted away from the camp along the main access road, I began to register all the photos I couldn’t make: the mountain forest road lined with Coastal GasLink trucks, heavy machinery and workers. As we drive by, a worker waves to the RCMP officers. 

A Gitxsan woman holds her cedar headpiece in her hands, a discordant echo of the two tighter circles of the steel handcuffs on her wrists. In the back of a police van, strained faces turned to joy at the news that arrestees Jocey Alec, daughter of Chief Woos, and Teka’tsihasere (Corey Jocko), Haudenosaunee supporter of the Coastal GasLink opposition, were newly engaged, the big question being popped on the eve of RCMP enforcement. 

At the Houston detachment where we are processed, Gidimt’en spokesperson Sleydo’ (Molly Wickham) places her hand on a wall of thick glass brick, reaching towards a distorted view of her mother’s hand on the other side. Eyes peer through food slots and cheeks press against the floor, straining to see and hear past heavy metal doors. 

These are all images I couldn’t capture after I was arrested on the  second day of an RCMP raid of opponents to the Coastal GasLink pipeline that saw 30 arrests. I have been reporting on this national story for over three years, but that day, I was forced to become part of it. I watched in agony as so many poignant moments slipped by, only recorded in my memory. I felt kidnapped. Having never been arrested before, it is the best word I can think of to describe being taken so abruptly out of my life and work, in violation of Canadian Charter rights protecting freedom of the press.  

That day I was documenting as Sleydo’ and her supporters locked themselves inside a tiny house adjacent to the pipeline right of way. Next to me in the cramped space was freelance reporter Michael Toledano, filming a documentary for the CBC. After RCMP arrived by helicopter, they surrounded the building, cut all communications, then broke down the door. Chunks of wood flew across the small space, before they switched to a chainsaw. As soon as there was a big enough hole, they pointed weapons at the unarmed group standing inside with hands raised. I kept photographing but adrenaline vibrated my entire body as I contemplated but decided against the risk of turning my back to the door, officer and gun. 

Just outside, a police dog barked incessantly as police arrested everyone — including me. I clearly said “I’m a member of the media,” but one police officer responded, “well you’re under arrest right now, so step out. You’re under arrest.” 

It also didn’t matter that The Narwhal had notified the RCMP ahead of time I would be on site, that I was displaying a Narwhal press pass, or that the RCMP had been tracking me as a journalist. They knew exactly what I was doing there. My arrest, and the arrest of other media covering Wet’suwet’en, is part of a pattern of police interference with reporting on Indigenous resistance movements. 

Most of those arrested that day were treated worse than I was — officers cut a medicine bag and ripped cedar regalia from Sleydo’, a hereditary wing chief. She says it was the only time she cried during the whole experience. Afterwards, they put her in a cell alone to worry about her kids, since they had also arrested her husband. Two racialized trans women were asked invasive questions about their bodies, denied important medication several times, put into the men’s side of prison and addressed by male pronouns.

We were all detained for days in cold cells. If the charges had been criminal, rather than the less serious civil breach of injunction, we would have been afforded the right to see a judge within 24 hours — I could have signed release conditions and regained my freedom. They took most of our clothes, denied us soap and toothbrushes, and only allowed us to speak to our lawyers. We all listened as Wet’suwet’en, Gitxsan and traditional struggle songs reverberated through the metal and concrete halls, their rounds of harmony transforming the cell blocks into cathedrals of the human spirit. 

When I was released, headlines across the world celebrated my freedom, even as Sleydo’, the two trans women and several other supporters still sat in the Prince George correctional centre. 

One of my first freedom calls was from a good friend, who is Indigenous. She was proud of me for following the story, but joked “so, how does it feel to be treated like a native?” Her point was clear — Indigenous people are criminalized every day. 

My experience of jail is not unique, but RCMP efforts to suppress press freedom — especially around stories that focus on Indigenous issues — is critically important in this moment.

The police prevented me from doing my job. I should have been documenting as the RCMP arrested the other land defenders. I should have been there to photograph as police and industry workers dismantled Coyote Camp and burned another cabin to the ground. I should have been present to capture the Gitxsan nation organizing solidarity actions, militarized police patrolling them, and as supporters gathered on roadsides and at the jails to sing.

Instead, my camera sat in lockup. I sat on cinder block benches and was transported between detachments in metal boxes. 

The public record of what happens in Wet’suwet’en territory should be beyond police interference. The arrest of Indigenous Peoples on their land concerns every single person in Canada as we wrestle with our collective history and future. 

The Wet’suwet’en Nation has never signed a treaty or ceded their territory, a vast area of 22,000 square kilometres, roughly the size of New Jersey. In the 1997 Delgamuukw decision, a case brought by Wet’suwet’en and Gitxsan hereditary chiefs, the Supreme Court of Canada affirmed both nations’ Aboriginal Rights and Title are intact and that the nation’s territory had never been ceded to the Crown. In the Delgamuukw case the hereditary chiefs established that the Wet’suwet’en have a system of Indigenous law that existed before the creation of elected band councils enacted under the Indian Act. ​​​​​​Within Wet’suwet’en law, hereditary chiefs hold responsibility for territorial lands. These hereditary chiefs are the forces leading the opposition to the Coastal GasLink pipeline.

At the time of the Delgamuukw decision the Supreme Court also said that a second case would be needed to define the territory’s exact boundaries, but the nation’s claim was clear enough that the B.C. government and various industries began scrambling to try and extinguish that title to create more certainty for development. Although much has been made of the Wet’suwet’en elected chiefs who vocally support the pipeline project and the benefit agreements they’ve signed, the question of whether or not the project’s approval is in violation of Wet’suwet’en rights has not been resolved in the courts. The hereditary chiefs maintain, however, that the pipeline being forced through their territory is in violation of Wet’suwet’en law. 

The elected system was imposed along with the Indian Act and reservations, while the hereditary system predates colonization. Elected Wet’suwet’en chiefs fulfill a crucial role for their respective communities on multiple reserves. But the Coastal GasLink pipeline route doesn’t cross Wet’suwet’en reserve land, it crosses traditional territory where it’s hereditary chiefs who are tasked with ancient responsibilities, and where they have been recognized as stakeholders by B.C.’s Supreme Court. 

Despite the staunch opposition of the hereditary chiefs, the government has permitted a project through the most intact portion of Wet’suwet’en territory without consent — and the RCMP has been directed by the courts to suppress pipeline opposition, a task they’ve taken on with paramilitary force.

Regardless of who has a right to consent to the project, the show of force against Wet’suwet’en occupation camps — and the suppression of related coverage — is in itself worth talking about. 

The North-West Mounted Police formed in 1873 “to bring Canadian authority” to present day Alberta and Saskatchewan. Later they would be renamed the Royal Canadian Mounted Police and gain national jurisdiction. This paramilitary force was instrumental in pushing Indigenous people from their land to make way for settlers and the railway. 

On Wet’suwet’en territory 150 years later, RCMP are back in military formation, with guns in hand, to remove people from the land. Over the last three years, police with authority to use lethal force have arrested more than 60 people on behalf of Coastal GasLink. 

This reality, especially images of militarized officers wielding advanced weapons, is an uncomfortable one for both the RCMP and governments in an era enamoured with the concept of reconciliation. British Columbia recently passed its two-year anniversary of codifying Indigenous rights in the Declaration on the Rights of Indigenous Peoples Act. In June Canada implemented the United Nations Declaration on the Rights of Indigenous Peoples, which calls for free, prior and informed consent of natural resource and development projects on Indigenous lands. With Canada’s minister of Crown-Indigenous relations acknowledging “it’s time to give land back,” it’s no wonder Canadians and Indigenous Peoples are experiencing a kind of reconciliation disorientation. 

Stories that fit the comfortable reconciliation narrative are much easier for reporters to tell. I’ve never seen tactical weapons at a press conference announcing a benefits agreement between an industry company and a First Nation. I’ve never been arrested reporting on new federal funding for Indigenous protected areas, or when politicians are included in First Nations’ ceremonies. 

Coastal GasLink, operated by TC Energy, formerly TransCanada, also runs a sophisticated press strategy. Its narrative — of economic benefit for all, including nearby First Nations — gets coverage in the regular news grind, often generated by industry-supplied press releases. It’s much more difficult to tell the untold sides of the pipeline story. I’ve talked to journalists from multiple outlets who have also been frustrated by half answers or no answer at all to questions about the pipeline from company spokespeople. And forget about any unsupervised conversation with workers or a chance to get a close look at what’s actually unfolding on project sites and in construction zones.

For a full understanding of this issue, what actually happens to Indigenous people who assert land rights or challenge official narratives, it’s critical every Canadian has the opportunity to see and viscerally understand what’s happening on the ground. 

I was eventually released from Prince George, some four and a half hours from where I had been arrested. I had to literally dig my personal belongings out of the wreckage from Coyote Camp, which had been scooped up with heavy machinery and dumped along with ice, rocks and mud at the bottom of the mountain. Now that I’m safely back home, I’m finally catching up with the notes of concern and notes of solidarity from other journalists in Canada who have been through similar experiences. The following are just a few notable examples. 

The most famous photograph of a standoff between Canadian force and Indigenous land defenders — the young military man facing off with an Ojibwe warrior at Oka, Quebec, in 1990 — was taken by a photographer named Shani Komulainen, but not many people realize she was arrested, strip searched and detained for five hours as she left the scene. Army operatives tried their best to discredit Komulainen and the other journalists who ventured inside the razor wire. Officers were annoyed at contradictions to their official account. They spied on journalists. They ordered reporters to leave. They blocked supplies and the outflow of stories and film. They denied members of the media re-entry if they left the protest zone. 

Months after her arrest, Komulainen was charged with possession of a weapon or an imitation of a weapon, threatening and interfering with the work of a peace agent and participating in a riot. It cost The Canadian Press and its members over $100,000 to defend Komulainen, but the charges against her were eventually dropped. Komulainen says she had so much pent up emotion from the months of the trial (and her recovery from a terrible car accident) that she surprised herself by bawling, instead of celebrating, when the ‘not guilty’ verdict was read.

At the 1995 Gustafsen Lake standoff, a dispute over land rights for a Secwepemc Sun Dance ceremony, RCMP responded to the group of 24 with at least 400 heavily armed officers. No media was present when, on Sept. 11, the situation culminated in a 45 minute firefight, where police deployed land mines and thousands of rounds of ammunition. RCMP are alleged to have prevented media from speaking to Indigenous leaders during the standoff. At trial, a video was entered into evidence showing RCMP officers discussing “a disinformation or a smear campaign.” RCMP would later disavow it as “a joke.” Despite the incredible show of militarized police force and continued calls for an official inquiry, there is no public record of that day. Gustafsen Lake remains one of the most obscured Indigenous land rights disputes in Canada.

Much more recently, in 2016, Justin Brake, working as a freelancer for The Independent, followed a group of Inuit and their supporters into the Muskrat Falls dam site, and spent several days inside as the occupation stopped work on the project. When an injunction named and accused him of trespassing, Brake had to decide if he would face arrest in order to cover the story. He decided to leave before police enforced the injunction, but was still burdened with both civil and criminal charges.

It took four long years, but again, all of the charges against Brake were dismissed. When the civil charges were dismissed in 2019 in the Newfoundland and Labrador Court of Appeal, the ruling definitively affirmed the rights of journalists in Canada to report from within injunction zones, like I did. In his judgement, Justice Derek Green outlined specific parameters that apply to journalists following newsworthy stories. Notably, he emphasized that “particular consideration should be given to protests involving Aboriginal issues.” 

When I speak to police officers, I bring up the Brake decision all of the time — very few have even a peripheral awareness of the case. 

In the summer of 2020, Ontario police waited until Oneida journalist Karl Dockstader had already returned home before telling him to turn himself in after he covered LandBack Lane. Dockstader was arrested and charged with mischief and failure to comply with a court order, again for reporting from within another injunction zone. His charges were also dropped months later, along with charges against 24 other people.

Since 2018, Jesse Winter, Jerome Turner (who is Gitxsan), Melissa Cox, Dan Loan and at least two other filmmakers have all been corralled, detained, removed from the area or arrested while covering the Wet’suwet’en reoccupation camps. Media have routinely been denied access to RCMP “exclusion zones.” In 2020, I was threatened with arrest for having stepped on a blocked road as I documented police apprehending Howilhkat (Freda Huson), her family and supporters. I believe I was only saved from that set of handcuffs because of scrutiny on RCMP at the time, who were being criticized for their deployment of illegal media exclusion tactics and vocal threats of media arrests. 

And most recently, over this past spring, the ongoing protest against old-growth logging at Fairy Creek, became notorious for RCMP harassing and unreasonably restricting journalists. One reporter, Paul Johnson of Global News, compared the situation to his experience in China and other repressive countries. 

The situation was so bad that a coalition of media organizations, including the Canadian Association of Journalists and The Narwhal, launched a successful legal challenge against the RCMP’s illegal suppression of press freedoms at Fairy Creek. 

On July 20, 2021, B.C. Supreme Court Justice Douglas Thompson addressed the RCMP practice of creating vast exclusion zones and media access points, stating the “geographically extensive” areas weren’t necessary for police operations. He also reminded the RCMP of “the media’s special role in a free and democratic society, and the necessity of avoiding undue and unnecessary interference with the journalistic function.” This was a way past due affirmation of press freedoms in Canada and journalists were collectively pretty excited.

But less than a month later, on August 10, 2021, Victoria Buzz photojournalist Colin Smith was arrested at Fairy Creek. He was detained in the back of a prisoner transport in the hot sun. As he became claustrophobic, feeling faint, sweaty and visibly shaking, Smith says an officer advised him to take deep breaths but didn’t open the doors. Eventually Smith was released without charges but the experience left a mark — he says that when he went back to the site his fear of the police and the looming threat of being put back in the metal wagon interfered with his ability to document what was going on. At least two other independent media photographers were also arrested and detained at Fairy Creek, and many more have been threatened or severely limited.

Mere months after Thompson’s decision, and two years after Green’s decision on considerations for journalists covering Indigenous protest in injunction zones, the state of press freedom in Canada is worse than ever. 

On the first day of enforcement of the Coastal GasLink injunction in November, filmmaker Melissa Cox was the first person arrested at another Wet’suwet’en camp. Her footage wasn’t released until days later and as a result those 15 arrests, that included Wet’suwet’en Elders, legal observers and some people who were hit with clubs, punched, thrown on the ground and contorted, did not see as much coverage.

For two days in a row during the enforcement, APTN journalist Lee Wilson’s attempts to report on the situation were blocked by RCMP. The first day, the officers on the ground told him “no,” he couldn’t go up the access road, such decisions were left up to the local detachment. The next day he was told “no” by the local detachment, because the decision had to come from officers on the ground. Those officers finally gave him a flat “no” — he would absolutely not be getting access to the area. 

Wilson had found himself in a similar situation in 2020: the only difference was that now, instead of explicitly calling the area “an exclusion zone” or an “injunction zone,” RCMP were now conscientiously using the term “police checkpoint.” 

It seems the only thing the RCMP have learned from Fairy Creek is to police their language. 

Hours after Wilson was prevented from doing his job, an officer told me that if I was “any credible media person [I] would have left.” 

The threat of arrest does have a dampening effect on reporting. Karyn Pugliese, now at the CBC, was at APTN when she jumped in to support Justin Brake back in 2016. In an interview with Canadaland, Pugliese spoke about her anxieties as an assigning editor, forced to contend with escalating police tactics as she sends journalists into the field: “What if she ends up in jail? I’m responsible for that. What if I can’t protect her? And that’s where you start creeping into this police state.”

Police use exclusion zones, arrest and the threat of arrest to control media access to newsworthy places: places where Indigenous people and land defenders are resisting industry, government and corporate mandates on their territories, and where the RCMP or the OPP are spending millions in militarized response. No one in Canada should tolerate police efforts to intimidate journalists or limit news coverage.  

There is no doubt in my mind that my arrest was intended to frighten, humiliate and deter me from continuing to cover this story. Both Toledano and I faced police interference with our ability to report. We both now face civil charges. 

One of the more surreal moments of this experience was at the Prince George courthouse. When it was my turn to see the judge, sheriffs escorted me in socked feet down a series of institutional hallways and up a narrow staircase. At the end a door abruptly opened from the echoing gloom onto a bright room hushed by thick red carpet, upholstery and courtroom protocol. By that point, I had been wearing my now filthy nylon-thin leggings and sweatshirt for days. They had taken my glasses, my hair tie and my bra. I wouldn’t have opened the door for a delivery driver dressed like that — I felt indecent. The oak-panelled room held very few observers, including Wet’suwet’en hereditary chiefs Woos and Madeek. Everyone else was fully clothed, as were the sheriffs and the court reporter. Madam Justice Marguerite Church presided from the raised bench in her black judge’s robes, as I sat barely dressed and cold in the prisoners box. I was supposed to feel small. 

But my arrest actually makes me a big part of a national reckoning with press freedoms, and what reconciliation means for journalism. I know I am not alone in doing this work or in dealing with the fallout. So many media friends and colleagues have rallied behind us. I am eternally grateful. 

Many more have said it — “truth before reconciliation” but that can’t happen if journalists are routinely criminalized in pursuit of this truth. 

Our courts affirm the rights of journalists to access and report on these issues, Indigenous people are shouting to be heard and yet we let police be the arbiters of this crucial conversation. Let this be the last time. 

Police put me in handcuffs when I should have been doing my job. I wanted to be doing my job. And I am furious.

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.

Two years after B.C. legislated the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), busloads of RCMP officers arrived on Wet’suwet’en territory in northwest B.C. They were there to enforce a civil injunction against land defenders acting on the authority of Wet’suwet’en hereditary chiefs to prevent the Coastal GasLink pipeline from being built on unceded Indigenous land.

The ensuing conflict saw more than 30 people, including journalists, arrested.

For those who, on Nov. 26, 2019, celebrated the introduction of B.C’s landmark legislation — the Declaration on the Rights of Indigenous Peoples Act (DRIPA) — the events cast a deep shadow over B.C.’s stated commitment to reconciliation. 

“It’s mind boggling that things are so much the same as they always have been, when, on the face of it, the law requires such a radical change,” Merle Alexander, lawyer at Miller Titerle Law and a hereditary chief of Kitasoo Xai’xais First Nation, told The Narwhal in an interview.

Alexander, who co-drafted the legislation and continues to be closely involved with questions of its implementation in the province, said the moment the declaration passed into law, “the optimism was so great.”

But two years on, the province has made little substantive change. 

The mandate of the legislation is to “take all measures necessary” to bring all B.C. laws into alignment with the UN declaration’s principles. It’s no small task — there are over 5,000 laws in the province — and Alexander acknowledged the challenge but said he’s disappointed in the lack of progress. He noted the recent announcement of an amendment to the Interpretation Act makes it clear provincial laws uphold and do not diminish the rights of Indigenous Peoples.

“I don’t think that First Nations expected things to dramatically change overnight, but it’s also taken two years to create one clause in one B.C. statute,” he said.

The province also introduced an amendment to the B.C. Human Rights Code, which adds Indigenous identity as protected from discrimination.

“The [United Nations] declaration sets out the minimum standards for the survival and dignity of Indigenous Peoples,” Kukpi7 Judy Wilson, secretary-treasurer with the Union of BC Indian Chiefs, said in a statement. “Indigenous Peoples are facing major threats to the survival of our peoples and our way of life. In many areas of law and policy this has not been fully understood, leaving us exposed to incredible risk in the face of health pandemics, climate change, removal of our peoples from our traditional territories and waters and the lingering discrimination and sexism faced by Indigenous women and girls [and] LGBTQ2S+ [people].”

She said the Union of BC Indian Chiefs welcomes the reforms but added, “we have to double down on the hard work to make real progress and switch from simply promoting the rights of Indigenous Peoples, to implementing the rights of Indigenous Peoples every day in all areas of life in British Columbia.”

B.C. government says it’s working on a five-year ‘roadmap’ to implement UNDRIP

Murray Rankin, Minister of Indigenous Relations and Reconciliation, declined an interview but provided The Narwhal with a statement.

“Currently, we are finalizing an action plan under the [Declaration on the Rights of Indigenous Peoples Act], in consultation and cooperation with Indigenous Peoples in B.C.,” he wrote. “The final action plan will provide a province-wide, whole-of-government roadmap over the next five years to advance reconciliation and implement the [United Nations] declaration in B.C.”

A draft action plan was released in June 2020, and the province is currently reviewing the feedback it received. 

“The final action plan will describe the shared long-term goals and outcomes needed for the provincial government to meet the objectives of the [United Nations] declaration over time and outline specific actions the province will take in consultation and cooperation with Indigenous Peoples in B.C. to advance the implementation of the [United Nations] declaration,” the minister noted.

Critics point out the draft lacks tangible plans to explain how the province will meet its lofty goals. 

“When you look at the actual actions that they’re planning to introduce in the next five years, nowhere is any plan about how they’re going to do this huge legislative reform initiative that’s really unprecedented,” Kris Statnyk, a lawyer and member of the Vuntut Gwitchin First Nation who lives on Gitxsan territory in northwest B.C., told The Narwhal in an interview.

One of the key principles of the declaration is free, prior and informed consent — initially a sticking point for many critics who focused on whether guaranteeing consent equates to giving ‘veto powers’ to Indigenous people and First Nations. 

Alexander and others explain that when it comes to the issue of consent in the context of respecting Indigenous Rights, it is about agreement and solutions — not a means of jurisdictional override.

“Consent is the future and, most simply put, it’s about coming together as governments, as people seeking to find common ground,” Terry Teegee, regional chief of the B.C. Assembly of First Nations, told the legislature in 2019. 

Eugene Kung, staff lawyer with West Coast Environmental Law, explained the difference between obtaining consent and granting veto powers in a summary published following the introduction of B.C.’s declaration act.

“Veto is about unilaterally overriding a decision made by someone else, whereas consent means recognizing that the consenting party has self-determination to make an informed decision about a matter affecting them,” he wrote.

‘Complete miscarriage of justice’: Wet’suwet’en hereditary chief

While the elected chiefs and councils on Wet’suwet’en territory signed agreements with the province and the proponent in support of the Coastal GasLink pipeline, the hereditary chiefs maintain they have never given consent to the project and continually refer to Delgamuukw v. British Columbia, a 1997 federal Supreme Court ruling, which confirmed the Wet’suwet’en never gave up their Rights and Title to the land and that hereditary chiefs are responsible for overseeing 22,000 square kilometres of territory. Wet’suwet’en hereditary leadership say elected chiefs and councils only have decision-making authority over reserve lands within the territory.

While the Wet’suwet’en hereditary chiefs have been consistent and vocal in their opposition to the project, the province of B.C. granted Coastal GasLink approval for the pipeline and the B.C. Supreme Court authorized the injunction against pipeline opponents on behalf of the company.

For Wet’suwet’en hereditary chief Dsta’hyl Adam Gagnon, that incongruity between rulings from the Supreme Court and lower courts is indicative of a failed system.

“It’s a complete miscarriage of justice,” he told The Narwhal in an interview. “We have the Supreme Court of Canada giving us Delgamuukw, saying that our Title and Rights have never, ever been extinguished. And the Crown has been ignoring that.”

“The Crown doesn’t comply with existing case law,” Alexander said. “First Nations have been trying to educate the province that the law is actually binding upon them, that they need to change the way they’re conducting themselves.” 

The recent police action on Wet’suwet’en territory is the third time in three years heavily armed officers of the RCMP’s emergency response team and community-industry response group were deployed to the remote area to forcibly remove Indigenous land defenders and supporters. 

Alexander said it’s an apt illustration that what little change has occurred since the bill passed into law hasn’t happened where it’s most needed.

“The province has been making a conscious decision to try and take on more social policy issues for UNDRIP compliance than taking on lands- and resource-based issues, which really doesn’t make any sense, because all the conflict is occurring in lands and resource areas.”

Consultation standards drop during pandemic, as expectations rise 

In the province’s first annual report on the declaration act, Premier John Horgan was quick to point out the impacts of the COVID-19 pandemic.

“While the global pandemic has changed many things, we remain focused on our work to make tangible and real progress on reconciliation as we restart B.C.,” he wrote. “We have come together and focused on what we need to do to stop the spread of this virus. This does not mean our work has stopped in other important areas to advance reconciliation. In fact, our work to weather the pandemic together has reinforced our commitment to creating a better B.C. for everyone.”

Alexander said he’s not buying it and called out the province for using the pandemic as an excuse for a “justifiable infringement.”

“What First Nations in B.C. have been experiencing for the last two years is this complete disconnect where the bureaucracy has been operating at arguably a lower duty to consult standard, because of COVID.”

He added there are currently hundreds of cases in the courts filed by First Nations who allege they were not adequately consulted before projects were approved.

Gavin Smith, a lawyer with West Coast Environmental Law, said cases concerning consultation, or a lack thereof, have been in the courts long before the pandemic.

“The foundational case in which the Supreme Court of Canada set out the Crown’s duty to consult and accommodate was Haida Nation in 2004, after which there was a flurry of litigation for over a decade to define what that actually looks like in practice,” he told The Narwhal in an email.

The Haida ruling noted the federal and provincial governments have a responsibility to facilitate a “meaningful process of consultation in good faith” with Indigenous Peoples and “cannot cavalierly run roughshod over Aboriginal interests.”

“In the B.C. context (and now federally), the duty to consult should be informed by the Crown’s legal commitment to implement UNDRIP,” Smith wrote. 

Yet, as Alexander pointed out, what constitutes consultation varies and in some cases — including when it comes to forestry and mining permits and amendments to those permits — an emailed statement of proposed activity is viewed as sufficient by the province. 

“Consent within the consultation framework is still going to be reactive versus a co-jurisdiction environment, where you realize that it has to be a standalone approval, not just a, ‘Did you consult, did you give them notice?’ type approach.”

Meaningful consultation challenged by time constraints, shifting responsibility

Bud Napoleon, a Dunne-zah/Cree trapper, former Chief of Saulteau First Nations and the first Chief of the Treaty 8 Tribal Association, told The Narwhal he’s been fighting for meaningful consultation since the 1970s. He noted that when it comes to consultation, the process can often feel too rushed to be meaningful.

“When it comes to consultation, we wanted to have adequate time,” he said in an interview. “Our First Nations, years ago, the Elders and their Elders, were pretty nomadic so there’s many areas they had gravesites.” 

He said without time to talk to the Elders and physically go out on the territory, those graves would be destroyed. Napoleon added the knowledge held by land-users is invaluable when it comes to assessing potential impacts.

“If necessary, we can go to this person’s trapline and walk through it all and the owner of the trapline can tell us what needs to be done or what needs to be protected.”

Another challenge has been the question of who is responsible for consultation. While the Haida court case made it clear that consultation cannot be delegated, common practice under B.C. regulations is for project proponents to take on the lion’s share of engagement with Indigenous communities. 

The Wet’suwet’en conflict with Coastal GasLink is an example of how consultation can be delegated to companies, Sleydo’ Molly Wickham, a wing chief of Cas Yikh house of the Gidimt’en clan, told The Narwhal in an interview. While the heart of the Coastal GasLink conflict is about consent, not consultation, the responsibility of the latter was shunted onto the company. 

“It’s not [Coastal GasLink’s] responsibility, really, to consult with us,” Wickham said. “The province and the Crown — they’re the ones that legally have the obligation to do that. They’re the ones claiming any sort of authority on our territories.”

“They can’t just have a hands-off approach, they can’t just pass the buck on to [Coastal GasLink] who’s clearly getting clobbered with all of this Indigenous resistance because they don’t have consent to be here. But they’re claiming that they have authorization from the government and the government doesn’t have the authority to give them authorization.”

Coastal GasLink declined to comment on their consultation efforts with the Wet’suwet’en.

Alexander said this practice of sloughing off responsibility to project proponents is standard. 

“In a resource context, almost always the proponent and the affected Indigenous Peoples are left with an absentee parent or something,” he said. “I call the Crown the deadbeat dad.”

First Nations forced to ‘weaponize’ legislation to reform B.C. mining laws: lawyer

While B.C. drags its heels on amending provincial laws to uphold the principles of UNDRIP, Indigenous communities are finding other ways to use the declaration act. 

“First Nations are going to be forced to use [the act] as a shield or to weaponize it in litigation,” Alexander said.

The Gitxaała Nation, on the north coast, recently launched a Supreme Court case against the province for its failure to align mining laws with the declaration. As The Narwhal recently reported, the province granted mineral tenure claims on Gitxaała territory without consulting or informing the Nation. 

“I don’t see how one can reconcile the sovereignty of Indigenous people with Canadian sovereignty, and proceed to basically dismantle their governance and their title system with a statute like this that doesn’t seek any type of consultation or consent or even notification before mineral interests are transferred,” Lisa Fong, legal counsel for Gitxaała, told The Narwhal in an previous interview.

Under the Mineral Tenure Act, which has its origins in the 1850s, anyone can register as a “free miner” and stake a claim on Indigenous land. Mineral staking across the province — even in unceded Indigenous territory — can be conducted online, through a provincial website. The cost is $1.75 per hectare.

A recent report co-published by MiningWatch Canada and the BC Mining Law Reform Network, highlighted eight instances of mining-related conflicts on Indigenous territories, including the Gitxaała case.

“To avoid future conflicts and uncertainty for all parties, the B.C. government must prioritize reforming these laws to be aligned with DRIPA throughout the lifecycle of mines,” the report said.

The Nuxalk Nation on B.C.’s central coast evicted a mining exploration company from its territory this summer. The company received two five-year permits authorizing exploratory work at a pair of sites near the town of Bella Coola. One of the sites is on Qw’miixw (Mount Pootlass), a glaciated peak not far from the community and above the Nutcicts’kwani (Necleetsconnay) River, a tributary of the Bella Coola River.

“Our fight really isn’t with the company,” Nuskmata (Jacinda Mack) told The Narwhal after serving the eviction. “It’s with the province for issuing these permits. Anybody who has any type of moral fibre to them will understand that this is wrong, and the way that they’re going about it is wrong.”

Further north and inland, Gitanyow hereditary chiefs gathered in August to unilaterally declare the creation of the Wilp Wii Litsxw Meziadin Indigenous Protected Area to ensure unwanted mineral exploration does not impact struggling salmon populations. The claims on Gitanyow territory, as on Nuxalk land, were staked on land recently exposed by glacial recession.

Implementation of UNDRIP could provide certainty for B.C. mining industry

In a Nov. 29 opinion piece published in The Province, Jamie Bonham, director of corporate engagement at NEI Investments, and Katherine Wheatley, manager at Canada’s Shareholder Association for Research and Education, noted Canadian, U.S. and European investors worth around $1.1 trillion in assets are looking to the province to implement UNDRIP as a means to provide certainty for the industry.

“Too many mining companies still behave as if DRIPA doesn’t exist — and it may as well not until the B.C. government takes action to align the province’s mining laws with the act’s free, prior and informed consent provisions,” they wrote.

In the absence of government action, the Tahltan Nation is taking a different approach by working with a proponent to ensure the principles of UNDRIP guide all interactions and decisions.

“The ongoing evolution and growth of the Tahltan Nation shows outside governments, industry and the world how working alongside the Tahltan Nation as true partners can help secure certainty, economic benefits and pride for everyone involved,” Chad Day, Tahltan Central Government president, said in a statement.

The Nation and Skeena Resources, a mining company with interests on Tahltan territory, developed a relationship that led to the company giving up 3,500 hectares in mineral tenure claims to form the Mount Edziza Conservancy.  

Now, the company and the Nation are partnering on a project to restart the Eskay Creek mine and are doing so through a consent-based decision-making agreement.

Justin Himmelright, vice president of sustainability with Skeena Resources, said reconciliation is a cornerstone of the company.

“This is the way the future is going and to be a contributor to positive social change, I think is a very wise thing to be doing, from the point of view of sustainability of your industry and sustainability of your project,” he told The Narwhal in an interview. 

He explained that regardless of moral considerations, getting out in front of the changes that will come eventually makes good business sense.

“Nobody wants to work for the bad guy. The best people want to work for the best company.”

The company has developed a reverse permitting system, where any ideas or plans are first presented to the Nation and agreed on before applying to the province for permits.

Alexander said a similar relationship between a proponent and a First Nation is unfolding on Stk’emlúpsemc te Secwepemc Nation territory. In October, the Nation signed a groundbreaking consent-based agreement with New Gold for a major mine. 

“The smartest thing for a proponent is to come into compliance and negotiate a consent-based impact benefit agreement, so that there’s already synchronicity,” he said. 

B.C.’s attempts to modernize forestry policies fail to uphold UNDRIP: First Nations

Meanwhile, the province recently put forward a suite of legislative amendments to its Forest and Range Practices Act, none of which bring the law into alignment with UNDRIP.

“Forestry policies — put in place two decades ago — have limited our ability to fight climate change, protect old-growth forests and share the benefits with Indigenous and local communities,” Katrine Conroy, Minister of Forests, Lands, Natural Resource Operations and Rural Development said in a statement on Oct. 20, following the introduction of the amendments to legislature. “By increasing public control between government and First Nations, we’re committed to smarter management of our forests that prioritizes public benefits and engagement now and into the future.”

Charlene Higgins, chief executive officer of the BC First Nations Forestry Council, told The Narwhal the province started its engagement with Indigenous Peoples on the amendments during wildfire season. She said when Nations received notification of the process, many responded to flag their concerns and ask for resources, but never received a response.

“These are very technical changes, and every one of them impacts Aboriginal Rights and governance and stewardship responsibility,” she said in an interview, adding that communities were expected to answer 91 questions during the engagement process. “[Logging] companies are using three to four foresters to answer these questions. Very few Nations have that technical capacity.”

Higgins said complaints about the process are falling on deaf ears, and shared by way of an example a letter sent to the government on Nov. 15 by the Ashcroft Indian Band.

“Efforts of the province to engage with us have been egregious and in bad faith,” the letter stated. “Under the declaration act, any changes being proposed to forest legislation, policies and regulations require our free, prior and informed consent.”

The Ministry of Forests, Lands, Natural Resources and Rural Development told The Narwhal in an emailed statement the province is taking steps to ensure First Nations are able to meaningfully engage.

“Engagement will be ongoing as we work to reshape how we care for our public forests and increase participation of Indigenous people in the forest sector,” the ministry wrote. “Changes to the forest act give the province the tools to redistribute timber harvesting rights to First Nations. The province intends to double the amount of forest tenure held by First Nations.”

Higgins said the council requested the province scrap the process and start over.

“We reject the current consultation and call for the redrafting of the intention paper and redesign the proposed consultation and engagement process, to ensure that Indigenous priorities, rights and principles are reflected in changes to modernize forest policies in B.C.,” Chief Bill Williams, president of the council, wrote in a letter to the province dated Sept. 8. 

“We’re saying the process is flawed, disingenuous, disrespectful, compressed and expedited,” Higgins said. “This is paternalistic and dismissive of Nations that have expressed concerns with the process and expressed concerns with the whole drafting of the intentions paper that was done totally internally by the province.”

‘We don’t have 20 years’

Court cases like Gitxaała’s, and others that may follow, could force the province to implement rapid change.

In June, a groundbreaking Supreme Court ruling found the province guilty of breaching the terms of its treaty with the Blueberry River First Nations in northeast B.C. by permitting and encouraging widespread resource extraction to the point that community members could no longer hunt and fish, practices that are constitutionally protected as Aboriginal Rights. The courts gave the province until the end of the year to chart a path forward on any new projects proposed, a decision that has been lauded by legal experts as a “game changer” for Indigenous Rights.

While court rulings have a role, and it could be significant, Alexander said he finds hope in a growing awareness of the issues at play and of the lack of political will to move things forward. He said the combination of poor consultation practices and hope that provincial and federal governments will live up to their commitments on UNDRIP is striking.

“I believe it’s no coincidence that these two things clash with each other right at the same time, because then the contrast is so stark: the expectation for free, prior [and] informed consent meets consultation happening at the lowest standard, the most impoverished view of consultation. That’s shaping the First Nations leadership of this province.”

For Statnyk, there’s also a stark contrast between provincial actions in other areas and its reluctance to legislate new laws related to UNDRIP.

“I just saw the province really tooting its own horn about passing new laws to protect people getting vaccinated from anti-vaxxer protesters,” he said. “They made this new law to keep families and children safe while they’re going to get a potentially life-saving vaccine.” 

“What about the safety of Indigenous land defenders, who are simply exercising their human rights to withhold free, prior [and] informed consent?” 

He added it’s vital change happens now.

“The very real crises that we’re facing on a daily basis throughout the province — whether it’s climate catastrophe or these conflicts over land and resources resulting in violent arrests and police raids — we don’t have 20 years to make this right.”

“I feel the impatience as much as anyone,” Alexander said. “We want it to happen yesterday because in the meantime our territories are being destroyed, in some circumstances. Sometimes I’m in the weeds, angry as hell.”

“I think Indigenous Peoples will be relentless and will pass the fight on from one generation to the next. And we’ll still be here.”

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Jerry cans of gas in an overflowing pool of water. Oil barrels lying on the ground. A dumpster filled to the brim, its lid propped open and bags of garbage left out in bear country. Murky water flowing into wetlands, lakes, streams and rivers. 

These are scenes from the route of the Coastal GasLink pipeline, as documented by provincial inspectors.

All of this, including impacts to watercourses, their beds and banks not properly restored after workers cleared the land in preparation for laying pipe, violates the terms of its project approval — adding to a growing list of 11 non-compliance orders issued by B.C.’s environmental assessment office since construction on the project began in 2019, including three new orders issued in November.

Collectively, the enforcement orders reveal a pattern of Coastal GasLink failing to abide by the rules of the pipeline project’s environmental permits, despite the repeated written warnings and orders. 

At one site, inspectors found willows were planted to revegetate cleared banks but the willow stakes were too small and planted too shallow, limiting their chance at survival. “The willow stakes had more than 25 centimetres left exposed and the planting rate of one stem per 15 centimetres was often not met,” inspectors stated in a report dated Sept. 23, 2021, that laid out their concerns about environmental infractions along the pipeline’s right-of-way.

The inspectors recommended an administrative penalty, which could mean daily fines of up to $750,000 for every day infractions are not addressed, according to the Ministry of Environment and Climate Change Strategy. In the coming weeks, the ministry will determine whether a penalty is necessary — or if additional information is needed — and then give Coastal GasLink another chance to respond to its findings and any proposed penalty.

“Matters of non-compliance are taken very seriously — as evidenced by the recent orders that included taking the additional step of recommending an administrative penalty for continued non-compliance,” the Ministry of Environment told The Narwhal in an emailed statement.

While Coastal GasLink, owned by TC Energy, largely admitted to errors in responses to the inspections throughout the report, it also disputed whether it needed to do everything outlined by inspectors, arguing that some of it was “optional” and not mandatory.

“As willow staking is an optional mitigation intended to help promote new growth along a reclaimed watercourse bank, Coastal GasLink argues that any use of willow staking (whether it adheres to the typical guidance or not) is more beneficial than no willow staking,” the company said in response to the inspectors’ findings.

The Coastal GasLink pipeline, if completed, would transport 2.1 billion cubic feet of natural gas daily, with capacity to expand to five billion cubic feet per day, from sources in B.C.’s northeast to the LNG Canada facility currently under construction on Haisla territory in Kitimat.

On Nov. 9, nine days before RCMP units began arresting Wet’suwet’en land defenders on Gidimt’en clan territory in northwest B.C., the province’s environmental assessment office issued three more non-compliance orders to Coastal GasLink related to the Sept. 23 report. 

Sleydo’ Molly Wickham, a wing chief of Cas Yikh house and Gidimt’en camp spokesperson, said the company’s history of environmental infractions is a key part of why Gidimt’en members and supporters are committed to preventing the company from drilling under the Wedzin Kwa (Morice) River. 

When the company cleared land in late September, in preparation for drilling and laying pipe under the river, Wickham and supporters occupied the Coastal GasLink drill site. Land defenders, acting under the authority of Dinï ze’ (Chief) Woos of Cas Yikh House, held the location for 50 days before enforcing an eviction order first issued by the Wet’suwet’en hereditary chiefs on Jan. 4, 2020, triggering a chain of events that led to the arrests of more than 30 land defenders, supporters and journalists.

“We have the ability to drink water right out of our river,” Wickham told The Narwhal in an interview days before being arrested. “We cannot afford for Wedzin Kwa to be destroyed.”

Elected chief Maureen Luggi and councillors Karen Ogen and Heather Nooski, of the Wet’suwet’en First Nation, one of five Wet’suwet’en band councils in the 22,000 square kilometre territory, have said that those opposed to the project do not speak for all Wet’suwet’en people.

“We want to make it absolutely clear that the actions of a few members of the Gidimt’en clan who claimed to evict Coastal GasLink and the RCMP from the headwaters of the Morice River (Wedzin Kwa in our language) do not represent the collective views of the clan or of most Wet’suwet’en people,” they wrote in a public statement on Nov. 14. 

The chief and councillors represent about 140 community members, roughly half of whom live on-reserve west of Burns Lake. But it was not immediately clear how project supporters view Coastal GasLink’s environmental infractions.

The Narwhal reached out to the chief and council but did not receive a response prior to publication.

As journalism professor Candis Callison told The Narwhal in September, it’s vital to remember that all communities — Indigenous and non-Indigenous — rarely agree on an issue unanimously. 

“There has to be more spaces for dissent within Indigenous communities,” she said. “In B.C. politics, there’s so much room for dissent within the NDP party, within the BC Liberals. And yet somehow, Indigenous people have to package themselves for mainstream narratives as if there’s no dissent within.”

Inspections of Coastal GasLink flagged pollutants, garbage and ‘project-related’ impacts to watersheds

The November orders followed another issued on Sept. 24, noting the company has been out of compliance since May 7, 2020, for not posting signage to “identify sensitive environmental features to ensure they are protected.”

Chris Parks and Clayton Smith, members of the province’s compliance and enforcement division, also found the company was not meeting its requirements to prevent human-wildlife interactions by properly securing, storing and disposing of attractants — like food — in vehicles and at work camps. The inspectors first flagged the problem in 2019 and noted recent inspections included a work camp on Unist’ot’en territory, where attractants were left “in project vehicles in a manner accessible and being accessed by wildlife.”

They also noted improper storage of gas canisters, oil barrels, diesel generators and drip trays under heavy machinery and fuel tanks, some of which were overflowing with contaminated water.

The company responded that its workforce was diminished due to public health orders related to COVID-19, but inspectors said “at the time of inspection workforce restrictions were no longer in place.”

Officers conducted follow-up inspections in October, one year after the company was found to be inadequately preventing sediment-laden water from entering four wetlands and more than a dozen watercourses, including the Clore River, a tributary of the Skeena River and important habitat for wild salmon and steelhead. The inspectors and Coastal GasLink were again at odds over the findings.

In the report, Coastal GasLink claimed sediment-laden runoff on Wet’suwet’en territory was not a product of work on the pipeline. The company told the province it is “confident that what is identified as sediment being deposited on the lake ice, is in fact natural tannins leaching out of the forest during spring melt. This is a natural process and should not be associated with Coastal GasLink’s [erosion and sediment control] compliance record.” 

Inspectors disagreed.

“No evidence, such as a signed submission by a qualified professional, was provided to verify this assertion,” the report noted. “Similar lakes in the area did not appear to show the same visible amount of sediment-laden runoff transporting into them.”

“On the balance of probabilities, the sediment-laden water observed to reach the lake at this location is project related,” inspectors concluded.

“This has been ongoing for the last couple of years, these violations, and there’s a big question of how the government can allow the company to continue pouring sediment into our local rivers and wetlands, without any real consequences,” Greg Knox, executive director of SkeenaWild Conservation Trust, told The Narwhal in an interview, noting the Clore River is one of the best steelhead rivers in the world.

Knox explained the impacts of sediment — from pipeline construction, logging, road-building and landslides — can be fatal to fish.

“It’s deposited on top of the gravel, which prevents water from flowing under and through the gravel and that’s what brings oxygen to the salmon and steelhead eggs. So you basically suffocate salmon and steelhead.” 

“It can also kill juvenile salmon at high concentrations and impede adults from being able to draw oxygen out of the water,” he added.

For Mike Langegger, a Kitimat resident and employee of Rio Tinto’s local aluminum smelter, whether you are for or against industrial development shouldn’t come into play when considering these infractions — it’s about balance.

“I work in industry, I get it,” he said in an interview. “It’s created a great quality of life for myself, personally, my family, for my peers, it’s good for the community.”

“We’re in the middle of a boom,” he continued, noting the economic boost the LNG Canada facility, under construction in Kitimat and which will be fed by the Coastal GasLink pipeline, has brought to the community. Langegger, an avid hunter and fisher, said while industry brings benefits, he’s concerned about the impacts an influx of industrial development will have on his community. “If you don’t have teeth in your regulations and bylaws, really what do you have? You have these companies that have more money than some countries.”

The Nov. 9 orders gave Coastal GasLink until Nov. 19 to provide confirmation that measures had been implemented to bring the project back into compliance. Natasha Westover, media spokesperson for the pipeline project, told The Narwhal in an emailed statement that the company is cooperating with the environmental assessment office.

“Erosion and sediment control is dynamic and changes constantly,” Westover wrote. “We adapt along the way and are constantly evaluating places along the project that require attention and are working to ensure that erosion and sediment control is managed appropriately.”

“Coastal GasLink continues to cooperate with the [environmental assessment office] and all other appropriate regulatory agencies to meet their requirements, standards, expectations and reviews,” Westover added.

The Ministry of Environment and Climate Change Strategy said the company has provided proof of coming into compliance regarding human-wildlife interactions, and added the enforcement department is continuing to investigate the other infractions.

“Verification of compliance at those sites will require ongoing evaluation and follow-up, including site inspections,” a ministry spokesperson told The Narwhal.

B.C. holds ‘significant enforcement powers’ to prevent further impacts

Knox said he’s not convinced Coastal GasLink will adequately address its environmental infractions, given the company’s history of failing to remedy problems flagged by the environmental assessment office and the province’s history of issuing warnings and orders but not taking further action.

“The question is, whose interests does the province have here?” Knox asked. “Is it the people of B.C. and people in the communities who are impacted by this? Or is it the company’s interests that they’re upholding? Because they’re not acting on these issues — the company continues to get away with these infractions with little or no consequence.”

He added the province’s lack of decisive action is inconsistent with B.C.’s salmon conservation goals.

“The government of B.C. has committed to protecting salmon and steelhead, and to increasing their efforts by developing a B.C. wild salmon strategy and more robust tools to protect salmon habitat. And yet, they continue to allow industry to do whatever they want.”

He explained the Clore River system is already heavily impacted by logging, including road-building, and increasingly prone to landslides as the impacts of climate change bring extreme rainfall events to the region. 

“This added siltation from pipeline construction means that the habitat in that system is being severely degraded,” he said, noting local chinook and steelhead populations are in decline, due to cumulative impacts of industrial development and climate change. 

“The solution to this problem is to enforce the rules,” he continued. “If [Coastal GasLink] isn’t willing to do proper construction that minimizes impacts on salmon habitat and water, then they should be stopped until they can clean up their act.”

“We’ve seen so many environmental infractions through this whole time,” Howihkat Freda Huson, a chief of Unist’ot’en clan, told The Narwhal in October. “They just [get a] slap on the wrist and pay a little penalty. The government makes all the rules and they watered down all the rules.”

Gavin Smith, lawyer with West Coast Environmental Law, told The Narwhal the environmental assessment office has power and authority under the Environmental Assessment Act to ensure infractions are nipped in the bud.

“It could [be] stopping work entirely and stepping in and actually actively overseeing or even, in theory, performing certain measures to ensure that the act is being complied with,” he said in an interview. “But that’s not the path that they’ve chosen.”

“The intention of the act was to have … significant enforcement powers in place that could be used if there’s recurring instances of non-compliance, for example,” he added. “I’m not sure that we’ve seen that borne out in practice.”

Last year, after Unist’ot’en and Gidimt’en clans flagged concerns about wetlands to the environmental assessment office, inspectors discovered the company did not follow its own wetlands management plan and adversely impacted 42 ecologically sensitive areas along the pipeline route and also failed to follow proper procedure to mitigate impacts to whitebark pine, an endangered species in Canada. 

As The Narwhal reported at the time, the province then ordered Coastal GasLink to stop all work within 30 metres of wetlands. To resume construction, the company had to send a qualified professional to conduct surveys and mitigation plans and provide notice to the environmental assessment office.

“Those qualified professionals are contractors or consultants that are being hired by Coastal GasLink,” Smith said. He noted the problematic nature of “having that lack of a degree of separation between someone who’s got power to essentially restart your project, who also happens to be on your payroll.”

Economic fate of Coastal GasLink pipeline and LNG Canada intertwined

Provincial fines issued to Coastal GasLink, which could escalate to include court-imposed penalties of up to $1,000,000 for a first conviction and up to $2,000,000 for subsequent convictions should they fail to make amends, would put the company’s relations with the Kitimat gas liquefaction facility on shakier ground. 

LNG Canada is a partnership between Shell Canada, Petronas, PetroChina, Mitsubishi and Korea Gas. This summer, a dispute was made public between LNG Canada and Coastal GasLink over increasing costs and delays on the pipeline project — and who would ultimately be responsible for these cost overruns. Coastal GasLink was initially estimated to cost around $4 billion to build in 2012, but by 2019, estimates had grown to $6.6 billion. A more recent price tag for the pipeline has not been made public, but TC Energy stated in its Oct. 29, 2021 quarterly shareholder report that it expects “project costs to increase significantly.”

In order to continue construction on the pipeline this fall, Coastal GasLink borrowed $840 million from TC Energy, which it repaid in October, and then borrowed additional amounts adding up to $175 million that was still owed as of the quarterly report. TC Energy has committed an additional $3.3 billion short-term loan to support the project, should it become necessary. 

Cost overruns on Coastal GasLink could eventually fall on gas shippers through increased pipeline tolls that would mean less profit for all of the oil and gas companies involved — several of which are backing LNG Canada. And any delay to the pipeline’s completion is a delay to production, and revenue generation, at LNG Canada. 

The economic viability of the two projects is also linked to government support. Both Coastal GasLink and LNG Canada are benefiting from significant government subsidies and tax breaks to support construction. In 2020, the Coastal GasLink project received a loan worth up to $500 million from Export Development Canada, a federal agency, and in 2019, LNG Canada added a $275 million direct investment from the federal government to a long list of exemptions and financial breaks from the province.

“Oil and gas is not sustainable,” Wet’suwet’en hereditary Dinï ze’ (Chief) Dsta’hyl Adam Gagnon told The Narwhal in an interview. Dsta’hyl, chief of Lihkt’samisyu clan, condemned the Nov. 18 and 19 arrests and said he considers continued government support of the projects deplorable.  

“The Crown is sponsoring terrorism on the Wet’suwet’en and all First Nations across Canada. The provincial government, the federal government are 100 per cent unilaterally supporting terrorism [and] they’re not just supporting it, they’re financing it. They’re pushing industry ahead to steamroll right over all Indigenous groups.”

In late 2019, the United Nations Committee on the Elimination of Racial Discrimination called on Canada to immediately halt construction of the pipeline and withdraw RCMP and security forces from Wet’suwet’en territory, noting it was disturbed by the “disproportionate use of force, harassment and intimidation by law enforcement officials against Indigenous peoples who peacefully oppose large-scale development projects on their traditional territories.”  

“They have a lot to gain because they’re going to collect tax off of it and they’re subsidizing it at the same time to make sure it happens,” Huson said. She added while it’s true many locals are employed by the projects, especially during construction, those jobs are short-lived. The pipeline, if completed on schedule, will be ready in 2023.

“Boom and bust, I call it,” she said. “They’re all going to make money real quick. And then after, they’re going to have no job. And how long is that money going to last?”

“I have a strong feeling that everything is going to collapse, and they’re not gonna finish that project.”

“We were taught by our grandma and our parents that we had to take care of the land in order for it to take care of ourselves, and always taught that you don’t just take, take, take,” Huson said. “You only take what you need.”

“This is the headwaters, why we’re fighting so hard.”

​​Editor’s note: Candis Callison is a member of The Narwhal’s board of directors. As per The Narwhal’s editorial independence policy, our news judgments are made independently of our board of directors, who are not involved in day-to-day news operations.

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.