Irrevocable consent

According to the IBA, Coastal GasLink aims to secure “irrevocable consent” for the project from the First Nation.

The First Nation must also act to dissuade band members from engaging in any internal dissent within the First Nation against the project. The unsigned agreement reads:

“[The First Nation] will not take, and will take all reasonable actions to persuade [First Nation] members to not take, any action, legal or otherwise, including any media or social media campaign, that may impede, hinder, frustrate, delay, stop or interfere with the Project’s contractors, any Authorizations or any Approval Processes.”

Experts on IBAs have been warning for years that serious issues can arise when commercial law is used to interpret Aboriginal constitutional rights. With these agreements, we now see how. The draft agreement states:

“[this is the] full and final satisfaction of any present or future claim by [the First Nation]… against Coastal Gaslink… for any infringement by the Project of [the First Nation’s] Section 35(1) Rights.”

The extent of constitutional Aboriginal rights is being defined here by a private energy corporation, specifically limiting the exercise of Aboriginal rights. A separate provision affirms that the band can take legal action against British Columbia.

Future protection is granted to Coastal GasLink in the case that Aboriginal rights are expanded to the nation through legal or policy means. The draft agreement states:

“If [the First Nation] obtains any interest in land including Aboriginal title or ownership or jurisdiction over lands used by the Project… [the First Nation] affirms the Authorizations … will continue” and that these changes will not affect the Agreement.

Dayna Nadine Scott, a law professor at York University, has interviewed lawyers with experience drafting IBAs for a research project, due out in the spring. She says this language is highly problematic and is often referred to as “gag orders,” preventing communities from raising concerns when new issues come to light.

Therefore, the unsigned agreement restricts the band from challenging any of the company’s legal rights of development, even in the case of changes to the First Nation’s legal rights, as recognised by courts or governments.

Possibility for natural gas to crude oil conversion?

The unsigned agreement also raises the issue of the possibility of converting the pipeline for other uses.

Previously, First Nations in the region were almost unanimously opposed to the Northern Gateway pipeline proposed by Enbridge, because it carried significant environmental risks, such as oil spills in coastal waters. Coastal GasLink garnered significantly more support, in part because of its pipeline would carry natural gas, not bitumen.

The unsigned agreement says: “Coastal GasLink will not convert the pipeline component of the project to use for transportation of crude oil, bitumen or dilbit without the consent of [First Nation].”

That line, “without the consent of First Nation,” means the subject of conversion was very likely raised in negotiations between the parties. The First Nation protected itself by confirming this change would require an amendment or a new agreement altogether to obtain consent for the change.