B.C. Supreme Court hears petition for judicial review of Coastal GasLink certificate

Lawyers for the Office of the Wet'suwet'en were in B.C. Supreme Court on Thursday seeking an order quashing the extension of the environmental assessment certificate for a pipeline that was at the centre of countrywide protests in February.

The executive director of B.C.'s Environmental Assessment Office granted Coastal GasLink an extension last October, nearly five years after a certificate was first issued for the 670-kilometre natural gas pipeline.

A petition filed in February on behalf of the Office of the Wet'suwet'en, a non-profit society governed by several hereditary chiefs, says environmental assessment certificates set a deadline of five years, by which time a project must be "substantially'' underway.

If it's not, the certificate holder may apply for a one-time extension. Coastal GasLink submitted its application in April 2019, about six months before its certificate was to expire.

The document says the assessment office confirmed that the factors informing the decision to grant Coastal GasLink the extension included the company's compliance record, as well as "any new or changed potential significant adverse effects that would require revisions'' to the certificate and its conditions.

Concern over possible gender-based harms

Lawyers for the society said the Environmental Assessment Office's records of the decision failed to address what they argue is an established track record of non-compliance by the company, including more than 50 instances of failure to adhere to existing conditions throughout last year.

They argue the office failed to meaningfully consider the findings of the report from the National Inquiry into Missing and Murdered Indigenous Women and Girls released in June 2019 or undertake an analysis of possible gender-based harms associated with the pipeline project.

"The harms raised are a risk of rape and domestic violence and racialized violence,'' DJ Larkin, a lawyer for the Office of the Wet'suewt'en, told the court.

She referred to a passage in the inquiry's report that notes it heard evidence directly linking the influx of temporary labourers and work camps for resource extraction projects with escalating gender-based violence against Indigenous women and girls.

Larkin argued the company's existing social and economic effects management plan for the project does not and is not capable of mitigating such gender-based violence, which she said was not addressed in the original assessment of the project.

Larkin acknowledged that recommendations in the report from the inquiry into missing and murdered Indigenous women and girls are not legally binding.

But she argued that public confidence in the system of administrative justice requires the Environmental Assessment Office to perform its statutory function to assess and mitigate the potential gender-based harm associated with the pipeline project in a meaningful and reasonable way.

The Environmental Assessment Office has the power to attach new conditions when it extends a project certificate. The Office of the Wet'suwet'en is seeking an order that would send the decision back for further consideration.

The response to the petition filed on behalf of the Environmental Assessment Office asserts there is no merit for the judicial review.

It argues the petition conflates a report by the assessment office that recommended the extension of the certificate with the decision of the executive director, saying the report is an important component of the record of the decision but it's not correct to describe it as the reasoning.

The hereditary chiefs have opposed Coastal GasLink's project, while five elected Wet'suwet'en band councils signed agreements with the company approving construction.

The hearing resumes on Friday, when the court is to hear from lawyers for the pipeline company and the Environmental Assessment Office.