Five questions: The #CoastalGasLink Pipeline & The #Wetsuweten
Note: This commentary only provides a general overview only with some discussion which does not contain legal advice and should not be construed as such. The record of the #CoastalGasLink Pipeline & the #Wetsuweten dispute is vast and it is not covered in its entirety. Support the Unist'ot'en Camp, part of the Wet'suwet'en, here.
CGP is BC company that is building a pipeline through Wet'suwet'en territory.
While CGP consulted some of the Wet'suwet'en, they did not obtain consent of Wet'suwet'en hereditary chiefs, part of the Unist'ot'en.
The dispute is now over this lack of consent; meanwhile CGP relies on common law remedies to enforce their construction to take place.
At the hearings for CGP's remedies (the injunctions), the judge rejected and dismissed Indigenous law, Wet'suwet'en legal remedies, and concentrated largely on the common law and statutory definition of "highway" to hold that the the Wet'suwet'en who did not consent to the project, were engaging in self-help remedies, or unlawful conduct (namely, tortious and criminal conduct), to block a highway.
On the definition of highway, previous case law is limited to its circumstances and the application of previous case law examined the definition of highway for criminal code purposes, without the consideration of Indigenous rights.
Please note that there several houses and clans part of the Wet'suwet'en and that CGP consulted some of these groups, but did not obtain consent from others (i.e. Unist'ot'en). This post is a general overview and is not meant to displace or dismiss any particular Indigenous group's efforts.
What is going on?
Coastal GasLink Pipeline (CGP) is a British Columbia (BC) company, wholly-owned by Trans-Canada Pipelines, now TC Energy, or CGP’s parent company. CGP allegedly obtained necessary permits and authorizations to commence construction for a natural gas pipeline running from west of Dawson Creek to Kitimat (approx. 670 km). The project will be owned, and operated by Trans-Canada/TC Energy through CGP.
On November 26, 2018, CGP filed an application for an injunction with BC courts to restrain several named defendants, part of the matrilineal group of Wet’suwet’en (the “Wet’suwet’en”), a First Nations group in BC, from blockading and preventing access over certain areas of the Wet’suwet’en’s territory.
In the 2018 application, CGP sought an interlocutory injunction, and alternatively, an interim injunction over certain areas of the Wet’suwet’en’s territory. These areas include two sections of land where construction was to commence. One section provides access to the other, and the latter is only accessible via the former; you need one section to get to the other section. CGP alleged in their application that, in order to complete the construction project, certain construction activities of the project must be completed by January 2019 in order to meet its deadlines, in 2021 and 2022, with other project partners. These construction activities include:
maintenance of existing roads, including bridge and culvert repair and replacement, gravelling of road surfaces, brushing of road boundaries and clearing of trees for safety purposes;
construction of new access where existing access is not available;
grading and preparation of the area and installation of a work camp, known as Camp 9A, which will be required to undertake construction in Section 8;
clearing of trees from the right-of-way for the pipeline and hauling of logs to designated storage locations or timber mills; and
mulching of vegetation or regrowth in areas previously cleared.
Traveling in a northern or rural area, you may sometimes see transmission lines or, similarly, railways, over tracts of land. These lands must remain cleared (as per legislative requirements for tree and other debris). To complete construction or maintain the rights-of-way to build a pipeline (assets similar to transmission lines), companies may require access roads or construct new access areas where there is none. Based on the reading of this case, this is what is required: access roads and right-of-way clearing/maintenance. Picture the transmission lines or railroads, especially if you have never seen a pipeline right-of-way.
The defendants include various members of the Wet’suwet’en, some of who were consulted by CGP. CGP alleges it made efforts to consult other members, the Unist’ot’en who a matrilineal group of Wet’suwet’en and who voiced their opposition to the project. Unist’ot’en and other Wet’suwet’en groups continue to voice opposition today.
The Wet’suwet’en sought an extension to respond to the 2018 application relying on personal circumstances. The Wet’suwet’en also alleged that CGP have not worked with the Wet’suwet’en’s legal process.
CGP alleged that the Wet’suwet’en’s actions were unlawful and contrary to the rule of law, pursuing self-help remedies instead of remedies through the court. Thus, the Wet’suwet’en’s actions must be restrained through an injunction. CGP's position was that the Wet’suwet’en’s actions were tortious (unlawful conduct as defined in common law). The judge agreed and held that there was prima facie (i.e. at first glance) evidence of tortious conduct by the Wet’suwet’en.
On December 14, 2018, the judge ordered an interim injunction until judgement rendered on the interlocutory injunction, to be heard at a later date. The judge allowed an extension for the Wet’suwet’en to file a reply. The interim injunction in the form sought by CGP remained in effect until the judgement for the interlocutory injunction application (the recent December 2019 order) or further order from the court. The judge also allowed enforcement provisions of the interim injunction based on social media posts by the Wet’suwet’en, and likely other evidence. This was done in the interests of justice.
The interim injunction was revised on December 21, 2018 to include a larger area of land. Despite this injunction, the blockade remained and the RCMP attended the area on January 7, 2019 to enforce this injunction. After unsuccessful attempts seeking to have the blockade voluntarily removed, the RCMP began to scale the blockade and secured the area, making 14 arrests.
The interlocutory injunction was heard in June 2019. After these hearings, an interlocutory injunction was granted on December 31, 2019 with similar enforcement orders.
What happened since then?
Various groups and individuals have supported the Wet’suwet’en’s efforts. Other supporters set up resistance camps including along the right-of-way, which is the area of construction. During the June 2019 hearing, CGP alleges intimidation and various other tortious and criminal activities. In the recent decision December 2019, the judge dismissed much of the Indigenous law asserted at the June hearings. The judge recognized the diversity of the perspectives among the Wet’suwet’en but agreed with CGP that “the [Wet’suwet’en] are posing significant constitutional questions and asking the court to decide those issues in the context of application with little or no factual matrix” (para 138). The judge also agreed with CGP insofar that the Wet’suwet’en’s actions were self-help remedies. As a result, the judge held that the Wet’suwet’en’s actions were contrary to the rule of law, an abuse of process and cannot be condoned by the court. The UN Committee on the Elimination of Racial Discrimination issued a directive under its early warning and urgent action procedure, calling on Canada to immediately cease construction on three projects, including CGP’s project.
What is an injunction?
An injunction, generally, is a form of relief in an ongoing dispute between two parties. The interim and interlocutory injunction acts a tool for the plaintiff to secure their rights in the event they succeed later in, for example, a trial.
The test for someone to meet when bringing an injunction includes:
whether there is a fair question to be tried;
whether the plaintiff will suffer irreparable harm if the injunction is refused; and
whether the balance of convenience, while considering the public interest, favours retaining the status quo until the court has disposed of the legal issues.
On the fair question, CGP advanced evidence of various tortious and criminal conduct that included intimidation, harassment, and other criminal activities.
On the irreparable harm, CGP argued that since the Wet’suwet’en were engaging in unlawful conduct (the tortious and criminal conduct), among other things, the injunction should be granted, whether or not irreparable harm is established. Irreparable harm asks whether there is a reasonable prospect of recovering damages from a party, or in this case, the Wet’suwet’en. There was no evidence that the Wet’suwet’en’s could pay the damages, in the “tens of millions of dollars” (para 196). Irreparable harm is established.
On the balance of convenience, this involves an assessment of “adequacy of damages as remedy, the likelihood that damages awarded will be paid, the preservation of contested property, which party has altered the status quo, the strength of [CGP]’s case, and factors affecting the public interest” (para 200). The judge examined this from a pure economic lens and ignored the Indigenous law governing the Wet’suwet’en and its territory. The judge also held, on the public interest test, that CGP did obtain all necessary authorizations and permits, while the Wet’suwet’en pursued unlawful activities, or self-help remedies. The judge did not consider the public interest application to the Wet’suwet’en’s interests.
Why would someone get two injunctions?
Injunctions are a pre-trial form of relief. An interim injunction may be made with or without notice to the opposing party. Arguments at the interim hearing are limited and generally, the order is for a brief period of time. An interim injunction may be imposed on a party to allow, like in this case, the plaintiff (CGP) to prepare for the hearing on an interlocutory injunction. The interlocutory injunction is usually for a longer period of time, or until a final determination.
What is the public interest?
The public interest is generally a contextualized assessment and may be applied in a variety of ways. Generally, in these instances, the public interest is an economic analysis, while there is little weight given to vulnerable or marginalized population groups; the public interest in other cases may seek to prevent vulnerability among a certain group of people. In this case, the Wet’suwet’en advanced a public interest argument specific to them but the judge did not give much weight to it. The judge viewed the public interest argument in a much broader perspective (i.e. loss of jobs, among other things), and as such, granted the injunction.
The judge seemed to rely heavily on the fact that the Wet’suwet’en blocked a “highway” in her decision. The blocked road is a forest service road and the road is on the Wet’suwet’en territory. A forest service road is a resource road which is generally used/maintained for industrial purposes but may be used by the general public and others for access. A forest service road in the Wet’suwet’en territory likely requires a different analysis than that in this decision. Justice Church in her analysis relied on the Criminal Code’s definition of highway and held that a forest service road was found to be a highway in previous case law. Previous case law is limited to its circumstances and the application of previous case law examined the definition of highway for criminal code purposes, without the consideration of Indigenous rights.
Further, as per Judith Sayers, “Aboriginal title in B.C. remains largely unresolved, with the exception of the five per cent of the Tsilhqot’in lands declared by the court to be their lands and some areas with treaties.” CGP ought to have known that there was a dispute over the aboriginal title claims in this territory and ought to have taken steps to obtain consent, if possible, of the Wet’suwet’en. If it was not possible to obtain consent or consult the dissenting Wet’suwet’en, CGP ought to have considered other possible routes or abandoning the project.
From the public filings by Trans Canada Pipelines, I find it alarming that the First Nations communities would agree to this project’s benefits and commitments so long as the project was in service. Hypothetically, once the project is no longer in service, the First Nations no longer receive any benefits or commitments. It’s kind of like a dine and dash!
Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264
Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343