Communities impacted by resource development are fighting back: government should take notice

October 6, 2015

Whether it’s mining, logging, dams or pipelines, the people living closest to resource industry developments typically face the highest health, economic and environmental risks. Such inequities will only deepen if liquefied natural gas plants materialize on BC’s coast.

Sadly, the provincial government often behaves as though northern British Columbians are second-class citizens. Drilling thousands of gas wells, siphoning billions of litres of water from rivers and lakes, potentially deadly gas leaks, hydraulic fracturing operations that trigger earthquakes and water pollution are all considered acceptable costs of doing business: costs to be borne by others, conveniently far away from us.

But the government may soon have to change its ways. In recent victories before provincial tribunals and the courts, lawyers representing the Fort Nelson First Nation (FNFN) successfully fought two provincially approved fossil fuel-related developments. More such challenges may be in the offing.

Which raises the question: If government continues to stake our collective economic future on LNG, how does it deal honorably with those who face the greatest risks?

In August, BC’s Supreme Court found that the provincial Environmental Assessment Office acted improperly when it exempted a company from an environmental review. Canadian Silica Industries (CSI) wanted to open as many as six mines to excavate large quantities of fine-grained sand in FNFN territory. The sand is used in natural gas fracking operations.

FNFN lawyers showed how CSI had first submitted plans to the province that conveniently fell just below the point at which a review was required. (Reviews are mandatory when the total material to be mined exceeds a certain amount.) Then, when it became clear that CSI would mine much more, the Environmental Assessment Office gave the company an out. It said that only the volume of sand removed and sold by CSI would determine whether the company had to submit to a review. That decision, the court found, was a perversion of environmental rules. Now if CSI wishes to proceed its plans must be subject to fuller scrutiny.

Less than a month later, the FNFN won again. The Environmental Appeal Board rescinded a water licence held by Nexen, one of many natural gas companies operating in the north. The EAB found that the province used poor to non-existent science to justify approving Nexen’s application. The ruling also contained evidence that the company dangerously overdrew water in violation of the then existing rules.

Since the decision, Encana, another energy company that has used large volumes of water in FNFN territory for fracking, voluntarily relinquished its water licence. Now no energy company operating in FNFN territory has long-term water rights.

Significantly, both the CSI and Nexen rulings also found that the province failed to properly consult with the FNFN.

And that’s where things get interesting. Because each year the FNFN is notified at least 1,000 times by the province and energy companies about proposed developments in its territory. With just one LNG facility, such notifications could easily quadruple.

The FNFN and other First Nations rightly see this as a death by a thousand cuts, with each notification happening in complete isolation of the other. The FNFN’s legal challenges are a strong signal that the FNFN wants – and deserves – something better. FNFN members want jobs, and many already have or will take jobs in the energy sector. But jobs that severely compromise the environment appear to be another matter.

The good news is that there is historic precedent that could begin to take us in a more desirable direction. While it was far from perfect, there was a time when logging companies had to hold public meetings to show where they intended to build roads and log. Members of the public actually saw what companies intended to do well before they did it, and they had a chance to try to change outcomes.

What's needed today is a natural gas equivalent: a requirement that the provincial government and energy companies spell out well in advance where they plan to situate some of the most water-intensive and energy-intensive gas extraction developments on earth. Then we need a mutually agreed upon, robust, ecologically sound land-use planning process at which First Nations’ constitutionally protected rights are respected and where they sit at the table as equals.

To insist otherwise is not only disrespectful to our northern neighbors but to society as a whole. How many millions more tax dollars is our government willing to risk on failed court cases?

Ben Parfitt is a resource policy analyst with the Canadian Centre for Policy Alternatives.