When I was first appointed Attorney General in 2013, I joined a government with the singular commitment to build the LNG pipelines and terminals needed to ship BC’s natural gas to world markets.
Recognizing the opportunity to the province, Premier Christy Clark made it the signature project of her government, and committed unwavering ministerial and staff resources to getting an LNG project operational.
The BC NDP formed government in 2017, and fortunately Premier John Horgan kept the same commitment to making the export of LNG a BC success story.
In October 2018, LNG Canada made the welcome announcement that their Kitimat project was a go, and that construction on the export facility would begin immediately.
The plant of course needs natural gas, and the natural gas needs a pipeline from the Dawson Creek area, a pipeline to be built by Coastal Gaslink (CGL). The combined value: about $40 billion, with the pipeline construction valued at $6.2 billion.
The CGL project has a fundamental requirement for success: the support of First Nations along the route. Each of the 20 elected First Nations band councils along the route reached agreements with the company, which will result in long-term financial benefits ($338 million), contract and employment contracts ($620 million), and other business opportunities ($400 million).
The CGL project has a fundamental requirement for success: the support of First Nations along the route.
The Nations have commented on both the short-term benefits of the construction contracts and the longer-term benefits of building capacity of their businesses and members. Major economic projects in their territories are few and far between.
The one group who has not reached an agreement – nor seems to be interested in one – is a group of hereditary chiefs from the Wet'suwet'en. They are mainly represented by the Office of the Wet'suwet'en, but one group, Dark House, operates independently.
The Office of the Wet'suwet'en has refused all offers to negotiate agreements with CGL. Dark House has refused all offers to meet. To them, this is their traditional territory, and the pipeline is not welcome.
Interestingly, the Office of the Wet'suwet'en is one of many Canadian groups who has received funding from Tides USA/Canada to stand in the way of Canadian energy projects.
Sooner or later, the matter was bound to land in court. In an admirably clear decision rendered on December 31, Madam Justice Church of the BC Supreme Court gave the green light for the project to proceed through the blockaded roads and bridges.
The case had first come before her a year earlier, in December 2018, when she granted an interim injunction to Coastal GasLink, allowing access to the Morice West Forest Service Road (FSR), which was blocked at the Morice River Bridge. CGL had received provincial authorizations for all the roads in the area.
Sooner or later, the matter was bound to land in court.
The plaintiffs were back in court a week later, as a new blockade had been set up west of the original blockade. The interim injunction was revised to include the entire Morice FSR.
The RCMP enforced the interim injunction in January 2019, a well-publicized breaking of the blockade.
Notwithstanding the injunctions and RCMP actions, repeated actions by the defendants and their supporters have caused ongoing delays to the project, all of which was before Justice Church in the hearing of the matter in June 2019.
There are many things to appreciate about the judgement itself. Justice Church was clear about her role and the kinds of decisions she needed to make in an injunction application. There’s no new law in the judgement, but it provides a clear and unambiguous description of Canadian law as it stands now and its application to this difficult case.
For example, Justice Church declined to rule on the Indigenous legal perspective. The relationships between elected and hereditary chiefs in the Wet'suwet'en are complicated. Given the lack of factual matrix, an injunction application was not the place to settle those issues.
The Justice found that the claim that BC law should not apply within Wet'suwet'en territory is not an assertion supported in Canadian law. All such issues need to be resolved by negotiation or litigation, as urged by the Supreme Court of Canada in Delgamuukw in 1997.
There was no evidence before the court of any Wet'suwet'en law or legal tradition which would allow blockades of bridges or roads or permit violations of provincial forestry regulations and other legislation. Self-help remedies are not condoned in Canadian law or Indigenous law. “Such conduct amounts to a repudiation of the mutual obligations of aboriginal groups and the Crown to consult in good faith.”
The Justice found that the claim that BC law should not apply within Wet'suwet'en territory is not an assertion supported in Canadian law.
It was up to the defendants to challenge by legal means the permits and authorizations, and the actions the blockaders have taken are an abuse of process.
Potential causes of action arising from the conduct of the defendants are nuisance, breaches of the Criminal Code, intimidation, inducement of breach of contract, interference with economic relations by unlawful means, conspiracy, and breach of Forest Service Road Use Regulation. (Note the word “potential” – the Justice makes no conclusive findings on these matters.)
Construction delays have cost in excess of $5 million, and there is no reasonable prospect of recovery from the defendants.
This case will be much referred to.
Considering all these matters, the Justice found that the public interest weighed heavily in favour of granting the interlocutory injunction, with an enforcement order attached, giving the authority for enforcement to the RCMP.
Uncertainty causes massive additional expenses to resource development in BC and Canada. This case is clear and certain in its description and application of the law. It will be much referred to.
However, these matters rarely resolve smoothly. It is no surprise that the blockaders do not support the decision – and they have now issued an eviction notice to CGL, who has left the area.
What comes through the judgement loud and clear is the lack of support for the blockaders from the elected Wet'suwet'en bands and the other First Nations along the CGL route.
Those First Nations see the project as a boon to the economy and prospects of northern First Nations, BC, and Canada. Like them, I hope the pipeline will be built.
Suzanne Anton QC is a former Attorney General of BC and Vancouver City Councillor
SWIM ON:
- Suzanne Anton last wrote about the results of the 2019 federal election.
- She also wrote about a court decision here, in the BC Court of Appeal's unambiguous ruling on Trans Mountain.
- Michael Taube wonders what 2020 will have in store for politics in Canada and beyond.
