B.C.'s energy regulator has created a legal loophole that is facilitating a "last-ditch" effort to build a liquefied natural gas pipeline in northern B.C.

The exemption will allow the project, which is being partially bought by the Nisga'a Nation, to begin construction this summer using a decade-old environmental assessment for the project, as reported by Brent Jang this week, despite opposition from other First Nations along the pipeline route calling for the assessment to be renewed.

If constructed, the Prince Rupert Gas Transmission Project (PRGT) will be a roughly 900-kilometre LNG pipeline stretching from northeastern B.C. to the province's north coast. Initially slated to end in Prince Rupert, its proposed route has since been modified to end at a floating, Nisga'a-owned LNG terminal on the Nass River.

Ownership of the proposed terminal location, which is on Nisga’a treaty lands, is being disputed by the Nine Allied Tribes of the Tsimshian nation, who say the location is part of traditional territories according to Tsimshian laws and oral history.

The project was first proposed by TC Energy and completed its environmental assessment in 2014. It then lay dormant for years, until the Nisga'a Nation and a Texas-based company announced plans to buy the project in March.

In a press release published at the time, Eva Clayton, president of the Nisga’a Lisims Government overseeing the development said the move was, “a historic day for the Nisga’a Nation and represents a sea change in major industrial development in the country.” A TC Energy spokesperson said in a Thursday statement that construction of PRGT is scheduled to start at the end of August if the deal goes through.

The project's environmental assessment expires in November 2024, which means that construction needs to have "substantially started" before then for the original assessment to remain valid. If not, the pipeline owners will need a new assessment — a costly and time-consuming process, explained Tara Marsden, Wilp sustainability director for the Gitanyow hereditary chiefs. The Gitanyow are currently locked in a legal land dispute with the Nisga'a.

But the Gitanyow and other First Nations along the pipeline route have pushed back, noting that the project consultations and environmental assessment are nearly a decade old and don't reflect present-day environmental and political conditions. They want an updated assessment of the project's impact and fresh consultations with Indigenous groups impacted by the project.

In April, the Gitanyow released an independent report they commissioned about the PRGT's likely climate and environmental impacts, should it proceed. The document criticizes the narrow scope of the project’s environmental assessment, saying it underestimates climate impacts.

After nearly a decade without progress, the Prince Rupert Gas Transmission Project appears set to begin construction this summer after the B.C. energy regulator created a legal loophole to allow the project to proceed.

Once a project has started and received a permanent environmental assessment "you can't make changes to it," Marsden said. "You are stuck with whatever technology, whatever mitigations, whatever recommendations or conditions are in that certificate."

The project's current certificate dates to 2014, she noted, meaning its recommendations and risk mitigation measures are no longer appropriate in light of increased climate disasters.

Typically, the province will only allow a project to start after it has consulted with impacted First Nations. But in a move Marsden said appears designed to circumvent this opposition, last January the B.C. Energy Regulator (BCER) amended the project's permit. The unusual change divided consultation requirements with Indigenous peoples into three sections along the proposed route, one of which lies entirely in Nisga'a territory. It is in this section where construction is slated to begin in August.

The change "was done very intentionally and [is] potentially legally questionable," Marsden said. She added that the project is also required to undergo a cumulative impact assessment — which has not been completed — prior to the start of construction.

The B.C. Energy Regulator did not respond to a request for comment by deadline.

In a March letter sent by B.C. Minister of Environment and Climate Change Strategy George Heyman to Marsden and Malii/Glen Williams, the Gitanyow hereditary chiefs’ lead negotiator, the ministry said the government "encourages" project proponents to signal their intent to start construction "approximately 12 months" before their environmental assessment expires. The PRGT application comes roughly seven months before its permit will expire.

The letter also confirmed that before deciding if a project has started enough it doesn't need a new environmental assessment, the government will "consult with First Nations, which includes seeking their views about whether the project is substantially started and requesting any relevant information."

The government will then send its decision to the consulted First Nations "prior to the substantial start determination decision," he wrote. But Marsden said the Gitanyow have not yet been consulted about whether the province should allow construction on the PRGT to start.

The B.C. Ministry of Environment and Climate Change Strategy did not respond to a request for comment by deadline.

She fears the amended consultation rules mean the nation will not have a chance to voice its opposition before it is too late — in violation of the province's own consultation requirements.

"This government seems to be very willing to break its own laws to facilitate this project," she said.

Updates and corrections

| Corrections policy
June 14, 2024, 10:06 am

Editor's note: This story was updated on June 14, 2024 to note a dispute about ownership of the location of the proposed LNG terminal at the end of the Prince Rupert Gas Transmission project.

Keep reading