Wet’suwet’en Nation hereditary chiefs, who pulled together the provincial records last month as part of a court challenge of the pipeline, say the pattern of rule-breaking raises doubts about whether the B.C. government should have allowed the project to continue.

Some rules were broken for years. Others were repeatedly broken and only came to light after Wet’suwet’en community members complained, show documents filed in court . The infractions ranged from blocking Indigenous people from accessing their traplines to missing deadlines on commitments to conserve caribou and endangered plants.

The company behind the controversial Coastal GasLink pipeline has violated conditions set by the British Columbia government more than 50 times, the province’s records show.

“We have regular inspections by regulatory bodies as well as our own environmental inspectors who are dedicated to ensuring compliance with our permits and certificates,” said spokesperson Terry Cunha.

TC Energy ⁠— the parent company of Coastal GasLink Ltd., which would build and operate the pipeline ⁠— said in an emailed statement that it works quickly with government officials to fix issues when they come up. (TC Energy was formerly known as TransCanada.)

“Each project has unique challenges and requirements,” the ministry said in a statement to National Observer.

The B.C. Ministry of Environment and Climate Change Strategy did not directly answer whether 50 violations of provincial rules is standard for energy projects like Coastal GasLink.

“Coastal GasLink has repeatedly flouted the conditions that were spelled out in their previous certificate, and shown only contempt for our people,” said Dinï ze' Smogelgem, a Wet’suwet’en hereditary chief of the Laksamshu (Fireweed and Owl) Clan, in a statement last month.

The EAO is one of two provincial agencies that signed off on Coastal GasLink, which doesn’t require federal approval because the proposed project would be fully within the borders of B.C. The other agency was the B.C. Oil and Gas Commission.

“We don't agree with that interpretation of the law, and it was a surprising position for the environmental assessment office to take,” said the lawyer representing the hereditary chiefs, Caily DiPuma, in a phone interview.

The EAO also didn’t have a legal duty to fully explain to the Wet’suwet’en why it greenlighted Coastal GasLink, the agency said. The only party it owed that to is Coastal GasLink, the EAO court filing added.

In response, the EAO argued in court documents that it’s unfair to pick the government’s reasoning apart. It also says the government wasn’t strictly required to factor in the pipeline company’s record of infractions, though the agency says “record makes it plain” that the issue was “properly considered.”

The hereditary chiefs also allege the regulator should have considered the well-documented links between resource extraction projects and violence against Indigenous women, children and two-spirited people.

Days before the raids, the hereditary chiefs filed an application in B.C. Supreme Court, alleging the province failed to consider Coastal GasLink’s spotty compliance record when it gave the pipeline company an extension on the environmental certificate, which is a prerequisite for construction. The petition asks a judge to overturn that decision, made by the B.C. Environmental Assessment Office (EAO), and send it back to the EAO to be re-examined.

The project became a political flashpoint last month after RCMP officers raided Wet’suwet’en camps and arrested pipeline opponents to clear them out of the project’s path. Solidarity protests erupted in response, several of which shut down key rail lines.

The hereditary chiefs have not consented to the pipeline, a natural gas project slated to cut through their unceded traditional territory 1,200 kilometres from Vancouver. The pipeline’s route runs from Dawson Creek in northeastern B.C. to Kitimat, B.C, where it would be converted to liquid and exported as part of the provincially and federally subsidized LNG Canada project.

In an emailed statement, the B.C Ministry of Environment and Climate Change Strategy did not answer questions about the court challenge. TC Energy, which is also respondent in the case, hasn't filed a response in court.

The EAO decision being challenged by the Wet'suwet'en isn’t its original 2014 approval of Coastal GasLink. Instead, the hereditary chiefs are applying to overturn the EAO's 2019 decision to extend the pipeline company's certificate.

The certificate granted in 2014 included a requirement that the company begin substantially working on the project by October 2019. By the time that deadline rolled around, the energy company had done some work on the ground, but not enough.

Coastal GasLink applied for a one-time extension on the certificate until 2024, which the EAO granted. The hereditary chiefs are contesting that decision.

"We are not saying that the EAO could never have approved this," DiPuma said. "We are saying that they did not adequately consider the compliance record. They did not explain how they got to the decision that they did in light of the repeated failure to comply."

The hereditary chiefs’ petition to the court notes that the province found dozens of infractions while inspecting Coastal GasLink in 2018 and 2019. The inspections were mostly in response to Wet’suwet’en complaints, the court filing said, and all cases of non-compliance are documented publicly on the EAO’s website.

At times, Coastal GasLink was found to have failed to follow through on conservation requirements ⁠— it missed deadlines for work to help local caribou and old growth forest. It also didn't complete habitat surveys meant to protect endangered plants on time, leading to an EAO order not to construct anything within 200 metres of endangered plants until the assessments were done.

Another time, Coastal GasLink blocked Indigenous people from accessing their traplines, something their certificate to build forbade. On several occasions, the company was found to lack good practices to contain contaminated soil.

The list of infractions also includes several cases where the pipeline company left food where bears could access it (when bears have access to human food, they can learn to prefer it over natural food sources and become dangerous). Coastal GasLink was supposed to buy an electric fence to keep out wildlife, but didn't order one until the EAO pointed out that the rule had been broken.

“The conditions are legally binding and they're there for good reason,” DiPuma said. “They're there to ensure that the environmental impacts of any project are mitigated to the greatest extent possible. And the job of the EAO is to ensure that certificate holders comply with those conditions.”

In its public report explaining why it would allow pipeline construction to continue, the EAO noted that Coastal GasLink didn’t have a perfect compliance record. But it also said Coastal GasLink had been “prompt” in fixing the problems, and in some cases, identified and solved issues on its own.

The Wet’suwet’en court filing alleges the EAO's logic is “unreasonable” and has “no rationale.” Some violations had been happening for years, while others were documented multiple times, the petition said. The hereditary chiefs also pointed to several cases where the company told the province it was following rules that it was later found to be breaking.

“The conclusions drawn are not supported by the facts,” the hereditary chiefs’ filing reads.

In response, the EAO’s court filing said the public report was an “important component” of its reasoning, but didn’t describe its entire decision-making process.

In any case, the EAO said, a court shouldn’t go over government decisions “as though it were a line-by-line treasure hunt for error,” nor should it expect the regulator’s decisions to be perfect.

The EAO noted that it consulted several stakeholders before making its decision, including the Wet’suwet’en hereditary chiefs. Overall, feedback to the extension of the certificate was positive, the EAO filing said.

The EAO filing also says the hereditary chiefs didn’t raise any issues when they were given a draft copy of the EAO’s decision; however, the same document notes elsewhere that the Wet’suwet’en did previously send their concerns to the EAO in writing.

Governments don't have to implement MMIWG calls to action, B.C. argue

A crowd of Wet’suwet’en supporters blocks traffic in east Vancouver on Feb. 19, 2020. Photo by Jesse Winter

The June 2019 results of an inquiry into the cases of Missing and Murdered Indigenous Women and Girls called for governments to do gender-based analysis of the impact of new resource projects. Projects like Coastal GasLink, which involves remote "man camps” of mostly male temporary workers, have been associated with higher levels of violence against Indigenous women, children and two-spirited people, a concern the hereditary chiefs flagged in their court filings.

The potential consequences for the community are “life and safety-threatening,” the hereditary chiefs’ court filing said.

In response, the EAO argued that preventing violence against Indigenous women is a “matter of importance,” but doesn’t meet the legal test for overturning its decision to allow Coastal GasLink to continue.

The EAO argued that it considered the Wet’suwet’en concerns about violence against women, but that the inquiry report’s recommendations weren’t legally binding. It “may provide the impetus for legislative actions,” the EAO court filing reads, but doesn’t “impose immediate legal obligations upon governments, regulators or private industry.”

The EAO also said Coastal GasLink had taken certain actions to protect the local community, including an electrified fence and policies against alcohol and drugs at work sites.

That fence was meant to deter wildlife, the Wet’suwet’en argued, and the other measures aren’t “logically responsive” to the core problem.

“My cousins are listed among the Murdered and Missing Women and Girls (MMIWG),” Smogelgem, the Laksamshu Clan hereditary chief, said in a press release last month. “B.C. must not be allowed to bend the rules to facilitate operations that are a threat to the safety of Wet’suwet’en women.”

In an emailed statement, Cunha, the TC Energy spokesperson, said the company works to ensure the safety of everyone working in the company’s camps to build the pipeline.

“Individuals must sign a code of conduct,” Cunha said. “We are committed to developing our workforce accommodation in a manner that reflects our core values of safety, responsibility, collaboration and integrity.”

No date has been set for the hearing.

Two Wet’suwet’en houses are also pursuing a second legal case to challenge the pipeline. That case, filed federally, argues that Canada has a legal duty to protect residents from climate change.

In the meantime, it isn’t clear when pipeline construction could begin. Last month, the EAO rejected a key report from Coastal GasLink that must be approved before the company can begin building an 18-kilometre portion of the pipeline in Wet’suwet’en territory.

The company now has 30 days to go back and do more consultation with the Wet’suwet’en before redoing the report. In the meantime, the company is still allowed to build pipeline in other portions of Wet’suwet’en territory, and do pre-construction work such as surveying.

Last week, the provincial government also came under fire after Wet’suwet’en hereditary chiefs, the B.C. Civil Liberties Association and the Union of B.C. Indian Chiefs released a letter showing that the province's Minister of Public Safety Mike Farnworth directly authorized the RCMP raids on Wet'suwet'en territory.

During the raids, B.C. Premier John Horgan and other officials had repeatedly said the province does not direct the police.

But the Jan. 27 letter from Farnsworth to RCMP Deputy Commissioner Jennifer Strachan shows Farnsworth designated the situation a "provincial emergency" and allowed the RCMP to deploy militarized police to the area.

"In many of our discussions, the province was passing the buck for RCMP operations but this letter spells it out in black and white," said Wet'suwet'en hereditary chief Na'Moks in a statement last week.

"We have come to the table with respect and truth but the province is not demonstrating respectful or truthful conduct... Canada and B.C. must answer to this mistruth and absolutely must change its ways."