Coastal GasLink Pipeline analysis Part 2: Current social, legal and policy issues

Image: TC Energy

This article is second in a series of four analyzing the Coastal GasLink Pipeline, which is currently under construction to provide natural gas from Northeast B.C. to the LNG Canada project for export.

The interesting conflicts resulting from the pipeline’s unique social, environmental and political characteristics serve to demonstrate some of the reasons why pipeline approval and construction has become so difficult in modern Canada.

Also in this series:

In September 2018, TC Energy announced that it had secured Impact Benefit Agreements (IBAs) with all 20 elected First Nations band councils located along the Coastal GasLink (CGL) pipeline route (TransCanada, 2018a). The company's consultation process included both elected and hereditary leadership. Its efforts were heralded by B.C. Premier John Horgan as an example of getting it right when it comes to First Nations consultations (Penner, 2019); however, in this case, relations between elected First Nations band councils and the pre-existing hereditary systems has led to conflict. The result is that CGL has faced opposition in north-central B.C. from the Big Frog Clan of the Wet’suwet’en First Nations.

The dispute over whether the elected Wet’suwet’en band council had the authority to agree to IBAs on behalf of their clans remains an open question, and it highlights the complexities of Indigenous law. In response to the Wet’suwet’en elected band council agreement with TC Energy, and the subsequent initiation of CGL construction activities—which occurred on January 1, 2019—members of the Big Frog Clan set up barricades along the pipeline right-of-way, south of Houston, B.C. This led to a dispute between members of the clan and the RCMP as officers enforced a court injunction that deemed CGL construction was legal, and that it should proceed unhindered.

A recent challenge by Michal Sawyer, an environmental consultant from Smithers, B.C., argues that CGL should have faced a federal environmental review. Previously, Sawyer launched a similar challenge against TC Energy’s proposed Prince Rupert Gas Transmission pipeline, which the National Energy Board (NEB) later rejected. However, in 2017 the Federal Court of Appeal ruled against the NEB stating that it must consider whether that pipeline fell under federal jurisdiction (Canadian Press, 2017).

In fall 2018, the NEB agreed to consider the same challenge against CGL as it ruled that Sawyer’s argument met the threshold of a prima facie case, and that CGL may form part of a federal undertaking (NEB, 2018a). If the decision was made that federal jurisdiction applies, significant delays to CGL project timelines would be expected, which TC Energy said would “put real, tangible benefits to the people in B.C., including First Nations, at risk” (TransCanada, 2018b).

In July 2019, following a hearing with 13 active participants, the NEB ruled that CGL does not fall within its jurisdiction. The board determined that the project does not form a part of the NOVA Gas Transmission Ltd. (NGTL) System, and is not vital or integral to it (NGTL), or any other federally regulated pipeline.

The company praised the decision, noting CGL “is a single-line natural gas pipeline located entirely within B.C. Its only purpose is transport of natural gas within the province — from the Dawson Creek area to LNG Canada’s facility in Kitimat.

"Coastal GasLink was fully approved and permitted following extensive consultation with local and Indigenous communities, and a rigorous multi-year review that considered potential environmental, economic, social, heritage and health effects.”

The disputes surrounding CGL have reignited complicated questions about who has authority within First Nations: hereditary rulers, elected councils authorized by Canadian federal legislation, or a combination of the two. They also highlight the interesting dynamic of federal versus provincial regulation, and question the reasoning that federal jurisdiction should apply to energy projects that reside solely within the boundaries of a province.

Hereditary Systems and Authority Derived from the Indian Act

The recent conflict over First Nations jurisdictional authority, particularly as it relates to CGL development, stems from section 74 of the Indian Act, when the Department of Indian Affairs imposed the election process on all First Nations. By doing so, Canada moved away from the Indigenous hereditary system of governance (Edwards, 2019).

During pre-colonial periods, hereditary chiefs governed tribes. The genesis of the hereditary chief position flows directly from ancestor stories, and over the years this chiefmanship is passed down by strict protocol, primarily from father to son (Edwards, 2019).

For example, the Gwawenuk Tribes of the central coast region of B.C. has four to six ancestors, and by extension, each of its clans possesses four to six heads, or hereditary chiefs. Among them is one senior chief determined by the long-standing narrative. Under the Indigenous hereditary system, the genesis stories define the territories where clans originate (Edwards, 2019). Today, there are more hereditary chiefs in B.C. than elected chiefs. For each of the 200 tribes in B.C., between four and six hereditary chiefs exist; however, currently, not all chiefmanships are active as many were never resurrected after “the colonial weight of oppression” (Edwards, 2019).

According to Robert Joseph, hereditary chief of the Gwawenuk First Nation, differences of opinion between elected and hereditary leadership occur from time to time, especially when it comes to resource development that will disturb the environment (Edwards, 2019). Typically, hereditary leaders assert responsibilities over their lands when situations like these arise. In contrast, chiefs elected under the Indian Act are primarily responsible for activities on reserves such as infrastructure, housing, water, sewage, schools and day-to-day matters that affect their communities.

A previous version of this article incorrectly implied that TC Energy did not consult with the hereditary chiefs of the Wet’suwet’en First Nations. We apologize for the error.

Ryan Lemiski is a senior exploration geologist with Calgary-based Gran Tierra Energy. He completed Bachelor of Science and Master of Science degrees at the University of Alberta, and was recently part of the first cohort to graduate from the Master of Earth and Energy Resources Leadership program at Queen’s University.
Ryan’s interests include subsurface science and its application to oil and gas exploration, surface and stakeholder relation issues, and analysis of Canadian and global energy policy.

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