B.C. community groups and First Nation file court challenge against regulator over pipeline

A coalition of community groups and a First Nation in Northern British Columbia have launched a court challenge against the BC Energy Regulator (BCER). They say the regulator is bypassing legal requirements by allowing construction of a pipeline to begin without a complete and updated picture of the total environmental impact.

The Skeena Watershed Conservation Coalition, Kispiox Valley Community Centre Association, and Kispiox Band, who are represented by Ecojustice lawyers, filed the judicial review earlier this week. The organizations hope to “hold the BCER to account for breaking its own rules and ignoring concerns from communities directly impacted by the project,” according to a press release issued on Aug. 29. 

The project in question is the Prince Rupert Gas Transmission pipeline (PRGT) that will carry natural gas to the Pacific for export overseas. The court challenge is not associated with Gitanyow Hereditary Chiefs and activists who recently blockaded service roads and burned 10-year-old pipeline benefit agreements to protest the pipeline.

There must be a full and up-to-date cumulative impact assessment before the community can even begin forming an opinion on this project, which would pass seven kilometres from Kispiox village, Chief Councillor of Kispiox Band Kolin Sutherland-Wilson told Canada’s National Observer in a phone interview.

“We've witnessed everything that's happened with Coastal GasLink. We've witnessed what's happening with similar projects and the resulting runoff, the lack of controls, especially with projects of the scale and this particular industry — the natural gas pipeline industry — we've seen that there'll always be a whole host of non-compliance issues,” he said.

One consequence of the construction will be a 500-metre wide clearcut “that would essentially bisect our valley,” explained Sutherland-Wilson. That creates a whole suite of issues, such as sedimentation in the waterways, impacts to salmon spawning habitat and other wildlife, and community members’ ability to harvest on the land. Other concerns include the fact that man camps — a mainstay of Canada's resource extraction industry — are linked to violence against Indigenous women and girls, according to a Parliamentary study from late 2022.

The PRGT pipeline was bought by the Nisga’a Nation and their industry partner Western LNG from TC Energy in March of this year. The proposed pipeline will connect Coastal GasLink to the Ksi Lisims terminal, the proposed LNG facility jointly owned by the Nisga’a and Western LNG. 

The PRGT is designed to transport natural gas about 775 kilometres from northeastern B.C. to Ksi Lisims. Construction on the pipeline began last week on a subsection that sits on Nisga’a lands. 

Matt Hulse, an Ecojustice lawyer representing the coalition, says the court challenge argues the regulator has “bypassed the legally required step in order to fast-track construction.” 

Hulse is referring to what the regulator refers to as a “substantial start,” a term used to determine if a project is far enough along in construction that it can move forward with its existing permits. 

Time is ticking on the PRGT, with its current decade-old environmental assessment permit set to expire at the end of November this year. If the pipeline is not found to have a substantial start, then another assessment would be needed, Hulse said. 

It “could take a couple years to do, and it will cost a lot of money… and the proponent, I presume, wants to avoid that,” Hulse added. 

Earlier this year, the BCER accepted a cumulative effects assessment for only this one subsection of the pipeline. According to the judicial review, the BCER’s permits for the pipeline required a cumulative effects assessment that considered the whole pipeline. That assessment also wasn't up to date and relied on information from the 2014 environmental assessment of the PGRT project and other incomplete information, Hulse said.

The company is trying to get the work for the substantial start done on this subsection of pipeline before the deadline, according to Hulse.

In an emailed statement to Canada’s National Observer, the BCER said the cumulative effects assessment for this section of the pipeline has already been done, and the regulator accepted it. It added that construction cannot begin for other sections because conditions, including cumulative assessments, haven’t been completed.

The judicial review argues the 2014 assessment is no longer accurate because there have been significant changes to the project plan, the pipeline route, the watersheds and nearby communities. 

Climate change impacts have gotten worse, the market for LNG is changing and the old environmental assessment is “really relying on outdated information and we don’t fully understand the effects on communities that live along the route or the environment,” Hulse said. 

There is a sense for the coalition that launched the judicial review that the BC Energy Regulator is “ignoring their concerns,” Hulse said. 

Kispiox Band does not have a pipeline benefit agreement, Sutherland-Wilson noted. Those deals were struck with various hereditary chiefs along the pipeline route, which seemed to satisfy the province’s requirements, he said.

That’s not always the case. This situation is an “interesting juxtaposition” to that of Coastal Gaslink, where “these same provincial bodies decided … the legitimate signatories for these agreements were all the band councils and they completely disregarded the will of the hereditary chiefs down there, who had a resounding ‘no’ to the project,” Sutherland-Wilson added.

“It's definitely curious that with two different projects, with two nations that share a very similar governance system, that they can pick and choose who the legitimate body is, almost based upon, who is willing to accept the project,” he said.

The PRGT is facing opposition from the title-holding hereditary chiefs, he added. “There's a lot of support within Kispiox for the work that they are doing and how they are addressing this issue.”

Earlier this week, Gitanyow Hereditary Chiefs blockaded an access road and burned pipeline benefit agreements for the PRGT in a ceremony while the blockade was being established.

“We need to really think hard about what these regulatory bodies are [and] who they're meant to work for,” Sutherland-Wilson said.

Matteo Cimellaro & Natasha Bulowski / Canada’s National Observer / Local Journalism Initiative