The Coastal Gaslink pipeline infrastructure that will connect the PETRONAS’ North Montney gas fields to the LNG Canada export terminal on BC’s West Coast must pass through Wet’suwet’en territory and the Wet’suwet’en are objecting and resisting on the basis of Aboriginal title. In Delgamuukw v. British Columbia (1977) the Supreme Court of Canada court defined Aboriginal title as Indigenous peoples’ exclusive right to the land, and affirmed that such title is recognized as an “existing aboriginal right” in s.35 of the Constitution Act, 1982. The Canadian Encyclopedia notes however that, such rights as are recognized and affirmed are, however, not absolute and that Government regulation can infringe upon these if it meets the test of justification under s. 35(1).
Economic development through agriculture, mining, forestry and hydroelectric power, as well as the related building of infrastructure and settlement of foreign populations, are held to be valid legislative objectives that satisfy the justification requirement. These legislative objectives are, nevertheless, subject to accommodation of the aboriginal peoples’ interests in accordance with the honour and good faith of the Crown. Such accommodation of “aboriginal title” entails notifying and consulting aboriginal peoples with respect to the development of the affected territory, as well as providing fair compensation.
Apparently, concerns about this possibility were first expressed in internal documents in 2009 and it is suggested that as early as 2014, B.C. Hydro drew up an agreement with the B.C. Oil and Gas Commission (BCOGC), to create five-kilometer buffer zones around dams within which new fracking and drilling rights would not be issued.
While this alleged agreement indicates the serious concerns within BC Hydro, their public position seems a little more cavalier. In a response to Financial Times queries on this matter, BC Hydro seems to have responded with the following – “… our dams can withstand events many times larger than those associated with fracking.” The crown corporation holds that while, ” fracking does have the potential to increase natural seepage … ( this) … is an issue of increased cost, not dam safety … ”
As reported in an article arising from research undertaken as part of the Corporate Mapping Project (CMP), and in the context of what has been called a free-for-all in the energy industry, 17 organizations including the Canadian Centre for Policy Alternatives (CCPA) have called for a full public inquiry into natural gas industry fracking operations in BC. At the centre of this controversy is PETRONAS subsidiary, Progress Energy which built two massive unlicensed dams in violation of provincial environmental regulations.
These 2 dams are the largest amongst about 50 unlicensed dams that the CCPA brought to the British Colombian Government’s attention in May this year. In fact, the largest of these, the Lily Dam, is described as being 23 meters tall, the height of a 7 story building, while the threshold for the licensing requirement is 15 meters. Following on from the CCPA exposure of the situation in May, investigative journalist Andrew Nikiforuk has reported that BC’s Oil and Gas Commission (OGC) inspections revealed serious problems with 7 dams of which Progress Energy is responsible for 5. As a an initial consequence, the provincial government ordered Progress Energy to drain its two largest dams and has since government has since denied the company’s application for retrospective licensing.
Complicating the politics and the ethics of this corporate/ governmental relationship is the fact that the 2 massive Progress Energy dams, along with the 50 or so other such structures have built by energy companies on lands that are subject to the 1899 Treaty 8 made with the region’s First Nations. The Blueberry River First Nation (BRFN) lands manager Norma Pyle, affirms that the Nation has alerted the Crown about diminished water quantity, “We have been watching lake levels drop, muskeg disappear, mineral licks dry up and streams reduce to small versions of their former selves’. Further, BRFN’s legal counsel Maegan blames regulatory oversight as “hundreds of thousands of cubic meters of freshwater in their territory is being illegally impounded for oil and gas operations. ”
It is claimed that in the CMP article that documents obtained by the CCPA indicate that all of the unauthorized dams were built to trap freshwater used in the fracking process operation where huge quantities of water are pumped under intense pressure to fracture or crack open deep rock formations so that trapped methane gas is released. And it is further asserted that one such Progress Energy fracking operation. using 160,000 cubic metres of water, triggered a 4.6 magnitude earthquake near Fort St. John in 2015.
There are reported to be at least 51 unregulated and unapproved dams in Northern BC built by oil and gas companies for their fracking operations. The two largest facilities, Lily Dam and the Energy Town Dam, both over 15 meters tall, are operated by PETRONAS subsidiary, Progress Energy Canada Ltd. The scale of these dams means that they should be classified as ‘major projects‘ under BC’s Environmental Assessment Act. requiring that they be assessed by the Assessment Office (EAO) prior to construction. On Oct. 31 2017 the provincial Environmental EAO rejected an application by the company seeking to exemption for these structures from an environmental assessment.The dams have reportedly been operational for many years under the watch of the previous Liberal government and the new NDP Energy, Mines and Petroleum Resources Minister Michelle Mungall is reported to have stated that their government is “reviewing the details in order to strengthen oversight going forward,”
On Oct 10th this year, while the Progress Energy application for exemption was still in progress, Okanagan Indigenous leader, Grand Chief Stewart Phillip and Ben Parfitt of the Canadian Centre for Policy Alternatives wrote that “If the EAO grants Progress’s request, it sends a terrible signal that BC really is the Wild West. Rules and regulations are simply there to be ignored.” While the EAO has finally applied its own rules, saving us from the Wild West designation, this decision leaves us wondering, how well the authors’ terms, applied to our province in the preceding years of Liberal rule. More pertinently, it leaves us wondering if, under the new NDP/Green regime, we will finally get the proper oversight of such dams and if in future there will be prior consultation with the First Nations on whose traditional lands they are being built.