Members of a Northern B.C. nation are arguing in court that they should have been consulted on an archaeological mitigation plan prepared by a natural gas company on their traditional territory.

The Unist'ot'en house group of the Wet'suwet'en Nation and hereditary chief Knedebeas filed an application for judicial review in B.C. Supreme Court on Tuesday.

It challenges the decision of the B.C. Oil and Gas Commission and the provincial Archaeology Branch to accept a mitigation plan prepared by Coastal GasLink that the First Nation members say did not involve consultation.

The plan followed the discovery of stone tools on Feb. 13 at a construction site for the company's planned pipeline, which would transport natural gas from northeastern B.C. to Kitimat on the coast as part of the $40-billion LNG Canada project.

Work was temporarily suspended while the commission investigated, and it announced on March 8 that archeologists had found four stone artifacts that were likely not in their original location.

An excavator sits idle on a mound of debris at a Coastal GasLink worksite in February. (Chantelle Bellrichard/CBC)

Coastal GasLink says in a statement that it is limited in commenting because the matter is before the courts, but says it has a valid environmental assessment certificate and permit from the commission.

"Our preference is always to resolve our differences through respectful and meaningful dialogue. We remain focused on continuing to advance this fully approved and permitted natural gas pipeline, which is under construction and delivering jobs, opportunities and economic benefits to British Columbians and Indigenous communities," it says.

Company contracted archaeologist

The company says in the March 8 news release that it contracted an archaeologist to develop the mitigation plan in case of discoveries that would involve soil testing, visual inspections and ongoing monitoring.

It shared the plan with the Unist'ot'en members' lawyers, "should they wish to discuss the mitigation" with the commission, it says.

The site was entered in a provincial archaeology database following the discovery of the artifacts.

The commission referred questions to the provincial government, which declined to comment as the matter is before the courts.

Contested rights

In the 17-page court petition, the First Nation members say the Wet'suwet'en have never relinquished or surrendered their title and rights to the land and resources.

But they say they didn't receive a copy of the mitigation plan until after it had already been approved and call for the plan to be quashed or set aside.

"To date, no attempt has been made to include Unist'ot'en people in the archaeological work conducted on our own territory," they say in a statement.

Wet'suwet'en members say the nation has never relinquished or surrendered its title and rights to the land and resources. (Chantelle Bellrichard/CBC)

It says the six artifacts found are "important evidence confirming the long-standing use and occupation of Wet'suwet'en people in the area."

"As such, Coastal GasLink continues to disturb a significant archaeological site that informs Wet'suwet'en history, occupancy, and potential evidence for rights and title."

The company says it has signed agreements with all 20 elected First Nation governments along the pipeline path, but some members of the Wet'suwet'en have said it has no jurisdiction without the consent of its hereditary chiefs.

In January, police arrested 14 people at a blockade in the area. The B.C. Prosecution Service later said it did not have enough evidence to pursue charges of criminal contempt against the 14 individuals, but that it has approved a charge against of assaulting a police officer with a weapon against one person.