The BC Supreme Court has ruled against the BC Oil and Gas Commission (OGC), and overturned the approval of a natural gas pipeline north of Fort Nelson. In an oral decision on December 15, 2017, Madam Justice Gerow found that the OGC’s conduct was “unreasonable” and described the Commission as being “intransigent” (or uncompromising) for refusing to discuss issues of importance to Fort Nelson First Nation. The judge went on to find that the OGC had failed to properly consult with the Nation prior to approving the pipeline in June of this year.
The pipeline was proposed to run through an area known as the “Fortune Core”, which contains crucial habitat for the endangered boreal caribou herd in the Maxhamish Range. Fort Nelson First Nation tried to discuss the development of a caribou management and recovery plan for the area before the project was approved but the OGC refused to engage in that discussion. The Court also found that Fort Nelson First Nation acted reasonably and appropriately in its efforts to engage OGC in meaningful discussion of project impacts on the caribou herd.
Fort Nelson First Nation Chief Harrison Dickie said “If our concerns with appropriate caribou management had been taken seriously by the OGC and by the pipeline company, Rockyview Resources, this Project may well have proceeded. It is gratifying to have the court state that we were the ones acting reasonably in the process. The OGC failed to talk to us.” The OGC tried to blame the Fort Nelson First Nation for the failed consultation, claiming that the band was unwilling to meet with the OGC, but Justice Gerow found that it was the OGC who was at fault for dictating the topics that would and would not be discussed in a meeting. Justice Gerow stated that “when the Commission’s initial response is that it would not discuss concerns and was satisfied that there would be no material impact [on the caribou habitat], it cannot be said that Commission was willing to engage in consultation.”
“We always try to approach these consultation processes rationally and engage in a meaningful way with both government and industry” said Chief Dickie “but in this case we ran into a brick wall. I hope that the OGC has learned a lesson from this, that the way forward is to have an open dialogue rather than being inflexible and trying to force its agenda at the expense of legitimate First Nation concerns.”
Rockyview Resources Ltd. was set to start construction on the 37 km natural gas pipeline in the coming days or weeks, but that will now be on hold as the permits authorizing its construction have been quashed. The Court also awarded court costs to Fort Nelson. A transcript of the Reasons for Judgment is expected to be available in January.