Updated Jan. 15, 2024, at 9:00 a.m. PT: This story has been updated to include an additional response from Fisheries and Oceans Canada.

In late January 2023, Coastal GasLink submitted a routine report to the federal government. The document was a  weekly description of progress on the company’s construction of its gas  pipeline through a Wet’suwet’en river, filed with Fisheries and Oceans  Canada.

The report, obtained by The Narwhal  through freedom of information legislation, detailed recent site  activities and included a list of issues that came up during  construction. That week, events at the river crossing had taken a  serious turn. 

“Clore River water levels increased to the  extent that the pumps and intakes installed could not cope with the  increased flow,” the report stated. “This event [culminated] with the  river isolation being overwhelmed and the work site becoming inundated  with water to the extent that works … could not continue.”

In plain language: the construction site  flooded. A series of grainy photos attached to the document show  equipment and infrastructure half-submerged in icy water, frozen in the  path of the river, known to the Wet’suwet’en as Lho Kwa.

As the federal government reviewed the  fossil fuel company’s reports, it did not disclose the information it  received to members of the public. 

The Narwhal reviewed hundreds of pages of  records and conducted numerous interviews with involved parties to piece  together a pattern of conduct by the federal government that  continually failed to provide complete information to the media,  concerned organizations and Indigenous leaders. Its lack of transparency  around the incidents at the Coastal GasLink crossing of Lho Kwa  suggests government secrecy around the impacts on salmon populations, a  resource that Indigenous and non-Indigenous communities throughout  northwest B.C. rely on for food security, economic benefits and cultural  well-being.

Jeffrey Young, senior science and policy  analyst with the David Suzuki Foundation, said the federal department,  commonly referred to as DFO, has an obligation to the public to be open  and transparent.

“I think transparency is a basic  responsibility of any government to the people it’s representing,” he  told The Narwhal in an interview. “And when you have such a clear  responsibility and a clearly defined law, there’s no excuse.”

Public forced to use freedom of information legislation to get answers from DFO

In early 2023, The Narwhal reached out to  the federal government for clarity around alleged issues with the Clore  River crossing. In a response sent on Feb. 3, just a few days after the  flooding of the site, Fisheries and Oceans Canada did not mention the  flooding incident.

Referring to an earlier allegation of issues with sediment and erosion control, a problem that plagued pipeline construction  since it began in 2019, the agency said government officials had  visited the site and were “assessing the data to determine compliance  with the Fisheries Act.”

Around the same time, Shannon McPhail,  executive director of Skeena Watershed Conservation Coalition, was  asking Fisheries and Oceans Canada and its provincial counterparts for  information about the river crossing, concerned the company wasn’t doing  enough to protect salmon habitat. 

On Jan. 5, 2023, Brenda Rotinsky, a senior  official with the federal department, told McPhail they were working to  address her concerns.

“I haven’t forgotten to reply!” Rotinsky  wrote in an email. “We are trying to get some answers to your questions  from [Coastal GasLink] so that you have the most up to date information  and they have been difficult to reach over the holidays. You should hear  back from us next week on what we know so far.”

McPhail never received another email from the department about the issue.

“Maybe their standard operating procedure  is to evade reasonable questions long enough that people just give up,”  she said in an interview. “Except that I haven’t given up. I just know  that I can’t go to the very department responsible for protecting fish.  You have to laugh, otherwise you’re just going to cry because it is so  ridiculous.”

Fisheries and Oceans Canada did not  explain why no one followed up as promised. The department also did not  specify why it said it needed to discuss with the fossil fuel company  before answering McPhail’s questions.

Young said while the agency may have valid reasons to hold back some technical information if it is pursuing legal  enforcement, the public should not be forced to use freedom of  information legislation to answer basic questions about events that  affect the health of a watershed.

“There could have and should have been  clearer communication than what has been provided,” he said. “They  should be open and transparent about what they’re seeing and what  they’re doing about it — how they’re going to address the issue.”

After reviewing the recently released  report and other documents obtained through freedom of information  legislation, The Narwhal asked Fisheries and Oceans Canada why it did  not disclose the information at the time, despite the relevance of  questions submitted to its media department and similar questions asked  by McPhail and others. 

The government agency did not answer. 

McPhail said she’s lost all faith in the federal department and its provincial counterparts.

“That project was under a global  microscope,” she said. “That was the opportunity for our regulators to  showcase their skills. Instead, what they showcased is that we’re fucked  with any project that the DFO and the BC Energy Regulator has any  decision-making or regulatory power over.”

Fisheries and Oceans Canada did not  comment prior to publication and the BC Energy Regulator referred The  Narwhal to its previous responses to other reporting.

Young said the Fisheries Act is very clear  and equips the federal government with solid legal powers to protect  species like salmon — but it only holds up if it’s being properly used  to prevent impacts to fish habitat, or dole out consequences for  violations of the law.

“It has a certain level of clarity that is  often lacking in law,” he explained. “It’s referred to by the  government itself many, many times in terms of how Canada has strong  environmental standards when it’s promoting itself around the world.  Those claims are only true if it’s enforced.” 

“In my view, we’re getting to a place  where legal accountability around DFO and the federal government’s  responsibilities to salmon in the implementation of the Fisheries Act is  in question,” Young said.

TC Energy and federal officials at DFO only disclosed partial information

A few weeks before TC Energy, the  Calgary-based company building Coastal GasLink, informed the federal  department of the flooding incident, Wet’suwet’en monitors had visited  the site and alleged the pipeline company had failed to protect fish habitat,  raising concerns declining salmon and steelhead populations in the  watershed were being negatively impacted by construction activity.  Receiving little response from provincial and federal authorities,  Wet’suwet’en officials revisited the river on Jan. 28.

“We walked along the riverbank downstream  of the work site and you can see a band of dark mud deposited as the  water level dropped,” Gary Michell, Wet’suwet’en fish and wildlife  monitor, said in a statement at the time. “That sediment presents significant risks to salmon and steelhead eggs downstream.”

Days before the construction site flooded, a TC Energy contractor representing the pipeline project sent an email  to federal fisheries officer, Ian Bergsma, noting “Coastal GasLink has  identified turbidity events at Site 616 (Clore River) and Site 714  (tributary to Hirsch Creek) over the past couple of days.”

The notification foreshadowed the events  to come. As temperatures around the region fluctuated, flip-flopping  between around five degrees above freezing to 20 below in a matter of  days, the ice upriver became unstable and the pipeline that was being  built right through the waterway stood directly in harm’s way. 

On Jan. 30, Bergsma sent an email to  senior Fisheries and Oceans Canada officials, telling them he spoke with  a pipeline representative that morning “about the Clore River  crossing.”

“Loss of isolation occurred on Friday  night … resulting in the dewatered area being flooded and subsequently  frozen over,” he wrote. “Water levels rose again yesterday despite  freezing conditions — they suspect that an ice jam on a tributary stream  broke loose resulting in further elevated water levels.”

Meanwhile, TC Energy, the Calgary-based  company building the 670-kilometre pipeline, described the unfolding  situation as an intentional part of construction activity.

“To manage the rise in water levels due to  higher temperatures last week, we initiated a temporary overflow of our  barrier at the Clore River yesterday,” the company wrote in a public statement on Jan. 30.

It is not clear why TC Energy failed to  tell the public last year that its site had flooded but critics say it  was trying to downplay environmental damage at the site. The report  obtained by The Narwhal described the events in detail.

“Warm weather conditions caused ice sheets  to slump into the channel, impounding flow, causing ice sheet movement,  sloughing and scour at the sump head walls,” the document said. “An  extended period of warm weather accompanied by moderate rain resulted in  an eventual release of flow from an upstream obstruction. This caused a  rapid rise of flow. Ongoing high flows and rapid decrease in  temperature caused pump screen freezing.”

TC Energy told The Narwhal the public statement was a description of emergency mitigation measures, not the  flood itself. The barrier mentioned was a dam set up to temporarily  redirect the river around the pipeline crossing. After the site was  flooded, the pipeline company worked to clean up and remove equipment  before letting the river run its natural course until the high waters  receded. 

“As we stated in late January last year,  we initiated a temporary overflow of our barrier at the Clore River in  response to rising water levels due to high temperatures in the region,”  a spokesperson wrote in an email. “This flood contingency measure was  used to mitigate impacts to the riverbed and bank that would have  otherwise occurred in an uncontrolled overflow.”

Fisheries and Oceans Canada did not directly answer a question about whether the department independently confirmed the cause of the flooding nor whether officials had assessed the adequacy of protective measures prior to the incident.

In an email, the spokesperson shared a graph showing hydrometric data, noting “the flooding in late January 2023 was the result of high flows due to an unseasonably warm/wet precipitation event affecting the watersheds.”

The spokesperson added the department worked with TC Energy “for many years prior to construction to assess the stream crossings and methods used to avoid and minimize impacts of the pipeline to fish and fish habitats.”

Feds still investigating incident, despite Coastal GasLink completion

Government agencies subsequently concluded  the pipeline company was meeting the conditions of its permits and  staying in compliance with environmental laws at the river crossing. An  internal government document drafted in March noted the BC Energy  Regulator was satisfied Coastal GasLink’s “watercourse crossing  activities at the Clore River have been conducted in accordance with  regulations and conditions specified in [its] permit.”

That document, a briefing note prepared  for B.C. ministers Josie Osborne and George Heyman, noted the existence  of a series of agreements between the provincial regulator and other  government departments, including the federal fisheries agency.

“There is a memorandum of understanding  between the [BC Energy Regulator and Environmental Assessment Office]  (as well as other agencies, including the DFO) that addresses aspects of  compliance and enforcement between regulatory agencies,” the note  stated.

Fisheries and Oceans Canada told The Narwhal the briefing note is not accurate.

“There are no formal agreements between  DFO and the BC Energy Regulator,” a spokesperson with the federal  department wrote in an email.

Young said regardless of whether there is a  formal agreement, the federal government “deferred” its powers to  provincial authorities on the Coastal GasLink project.

“Fisheries and Oceans Canada has a key  responsibility here,” he said. “It’s the Fisheries Act that ultimately  has the key powers to protect rivers and salmon from these impacts.”

“When problems do arise, they may be  hesitant to fully apply their authority, because it becomes a  federal-provincial jurisdictional type of issue or more of a political  issue,” he added. “And that’s a problem.”

When The Narwhal initially pressed  Fisheries and Oceans Canada for clarity around its involvement, the  department told The Narwhal it was investigating the allegations and  could not comment. Nearly a year later, the federal agency said it is  still conducting its investigation.

“Conservation and protection  investigations are complex and can vary widely in the length of time  they take to conduct,” a Fisheries and Oceans Canada spokesperson told  The Narwhal. “Any investigation involves a great deal of research, often  including voluminous amounts of technical information and  authorizations, other documentation, collection of evidence, samples,  photographs and gathering of any pertinent witness statements. All are  necessary to build a case to submit as a potential violation to the  Crown, who then decide whether charges will be laid.”

TC Energy announced in November the Coastal GasLink pipeline was mechanically complete. Gas is set to start flowing to the LNG Canada liquefaction and export facility in Kitimat, which will commence its startup operations this year.

McPhail said the fact that the pipeline was completed before the results of the investigation were finished  sends a message to companies like TC Energy. 

“Industry can look at this and laugh and  say, ‘Look, we can break all the laws we want and we’re gonna get it  done long before they get their investigation done — and 99 per cent of  the infractions that we commit aren’t going to result in anything that’s  going to cause our project any harm.’ ”

Young said while he’s hopeful an  investigation will still lead to charges, the federal agency’s failure  to prevent the pipeline project from damaging fish habitat over the past  few years “is a problem in and of itself.”

“It does raise an extra question about how  much faith we should be putting in the federal government that they’re  doing some sort of thorough behind-the-scenes science-based  investigation that will lead to good enforcement outcomes,” he said,  adding a “political compromise” could be an alternate outcome. 

“The Fisheries Act is extremely clear,” he added. “And when it’s clearly violated, it needs to be clearly enforced.” 

According to the Fisheries Act, violations of the legislation can lead to fines up to $500,000 or “imprisonment for a term not exceeding two years,” or both. 

The spokesperson did not provide an update on whether or when it will submit any evidence.

By Matt Simmons, Local Journalism Initiative Reporter

Original Published on Jan 15, 2024 at 10:00

This item reprinted with permission from   The Narwhal   Victoria, British Columbia

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