Despite getting the go-ahead from the B.C. Environmental Assessment Office Aug. 9, two North Vancouver First Nations are pushing back on the proposed gas pipeline that would transect sensitive cultural and environmental areas.
The two First Nations — the Musqueam and Tsleil-Waututh — allege the approval process was rushed and failed to meet the standard for achieving consent from local First Nations.
Ernie George, director of Treaty Lands Resources for the Tsleil-Waututh Nation, says the nation doesn’t think some sacred sites are protected enough and the issued environmental certificate was “a bit premature because we don’t have those protections in place.”
The Musqueam and Tsleil-Waututh Nations wanted to meet with the minister to discuss the concerns that weren’t addressed in the original approval process. Despite this, using only a few weeks of the standard 45-day review window, the project was approved.
“It’s no surprise,” says Merle Alexander, partner and aboriginal resource lawyer at Gowling WLG LLP in Vancouver who represents Tsleil-Waututh Nation. “The truth is once the Environmental Assessment Office sends a recommendation, there’s been few instances — especially in the LNG context — where the minister didn’t move quickly to approve the project.”
Based on the current model of approval, this is typical, Alexander says, noting changes to the Canadian Environmental Assessment Act by the Harper government in 2012 made the approval process for LNG pipelines “super streamlined” by leaving decisions to the province and removing the federal government from the approval process.
“It leaves a lot of big decisions to be made after the fact,” he says. “There’s no guarantee the corridor will be moved because the majority of approval is already provided by the province.”
FortisBC and the First Nations are now involved in a discussion group to try and work out the issues with the project, but at the end of the day, “that’s not what the First Nations asked for,” says Alexander.
“Tsleil-Waututh asked that the actual corridor be changed before it’s approved,” he says. “I guess there is a possibility this working group could create the same result, but the biggest problem with the ongoing discussion is at the end of the day Fortis essentially will determine what the end move is — whether to move the corridor or not.”
Alexander says the approach of the First Nations has been, “This is our title land, and your project needs our consent, and the terms of that consent is you move the corridor.”
The decision to comply with the First Nations’ terms is now “left in hands of the proponent, not even government.”
“The way it’s proceeding forward is not recognizing they have a level of jurisdiction here through their consent requirements,” Alexander says, adding it’s akin to pipelines being built through your own backyard while you’re saying no — that doesn’t feel good, he says.
Alexander also notes these nations don’t have an adversarial relationship with FortisBC. They’ve been working with Fortis pipelines through their territories for decades.
The pipeline, which would feed the Woodfibre LNG export facility located in Howe Sound, B.C., now tops the list of only a few other potential pipelines in B.C.
Alexander says, only three or four years ago, it looked like LNG projects were going to be a major economic driver in the province, with 19 or 20 proposed pipelines queued up.
“The majority of the LNG projects have been put on hold or are on an indefinite delay, so right now most market analysts would probably put the Woodfibre LNG at the top of the list to be most likely to proceed,” Alexander says. “It’s the last hope there will be an LNG industry in British Columbia.”
Thomas Valentine, a senior partner with Norton Rose Fulbright LLP, says the challenges facing LNG projects in Western Canada continue to grow.
“Although the fundamentals for the LNG industry remain attractive as the world continues to move toward natural gas, the solutions to Western Canada’s challenges have been slow to develop,” he says.
Valentine cites the cost of developing the infrastructure required to support the B.C. projects, the uncertainty surrounding the project approval process and mounting opposition from stakeholders as key reasons for the scaling back of LNG projects.
“The investments required are so significant, and the uncertainties are so pressing, that project developers are thinking long and hard about their next steps,” he says. “As a result of all this, the future for West Coast LNG presents a much more cautious picture than the picture painted a few years ago.”
For the parties involved in the WoodFibre pipeline project, the back-and-forth might land them in more adversarial circumstances.
The First Nations were “clear on submissions to the province they were not going to allow their sacred sites to be damaged, so at this point the nations will in good faith continue to consult and test out these discussions, but at the end of the day, if the corridor simply won’t move, there’s a problem,” Alexander says, but he adds they’re not there yet.
“Judicial review of these certificates remains an option. A six-month time period has started ticking for Tsleil-Waututh to make that decision.”
Tsleil-Waututh, for its part, remains hopeful.
“I think the conversations we’ve been having — it starts out alright and then when you get to sticky points it gets a little dormant,” George says. “But nothing’s impossible at this point. We still have the ability to talk through things.”
As for FortisBC, the company did not return a request for comment, but on its web site posted a statement, saying it will “continue to engage with aboriginal groups, local stakeholders and the community as we move forward with the next phase of planning and permitting.”