From the point of view of Justice Church of the BC Supreme Court, it was probably pretty clear that the protesters blocking construction of the Coastal GasLink pipeline across Northern BC were breaking the law. Certainly, she had no problem with issuing an injunction (court order) on December 31st, 2019 prohibiting protesters or (depending on your perspective) land defenders from interfering with Coastal GasLink’s construction activities.
But we now know that Coastal GasLink is itself an environmental offender – repeatedly violating the terms of its Environmental Assessment Certificate, and likely also violating the Fisheries Act.
What does it mean when the courts issue orders siding with environmental offenders? Is there any chance that Coastal GasLink’s unlawful conduct can have an impact on its injunction order, potentially even leading to the order being rescinded?
Coastal GasLink’s injunction
On December 31st, 2019, the British Columbia Supreme Court granted Coastal GasLink an interim injunction, prohibiting members of the Wet’suwe’ten Nation and other land defenders who had blocked access to the natural gas pipeline project to prevent it from moving forward. This type of injunction is common in resource disputes – the company sues a few of the protesters and then asks the court for a court order to “preserve their legal rights” until the matter can go to trial.
Usually the original lawsuit doesn’t go to trial – because by that time the project is built. The company really just wants the injunction. This tool has been very effective for industry – a 2019 study by the Yellowhead Institute found that injunctions are much more likely to be issued to industry to allow development than to Indigenous groups seeking to halt it.
In deciding whether to grant an injunction, the courts will balance different factors established in court cases. A key question is whether the party seeking the injunction suffered irreparable harm, and if it deserved more protection from that harm under principles of equity.
In granting Coastal GasLink’s injunction application, Justice Church reasoned that Coastal GasLink had acquired all related authorizations and permits to build the pipeline and that the protestors were acting unlawfully. (As we wrote at the time, the court’s approach to dismissing Indigenous law was troubling). In Justice Church’s view, Coastal GasLink would suffer irreparable harm if its project was further delayed, and so she granted an interim injunction order. The RCMP was ordered to enforce the terms of the order.
Coastal GasLink’s compliance history
Meanwhile, Coastal GasLink has been finding itself in legal hot water – well, maybe, given the government’s attitude to environmental enforcement – lukewarm water. A review of the Environmental Assessment Office’s inspection records paints a picture of a company in non-compliance through different contraventions since 2019.
Coastal GasLink has received 37 warnings and 17 orders from the Environmental Assessment Office, related to a range of legal requirements arising from their Environmental Assessment Certificate.
In three cases the company’s violation of legal requirements related to erosion and sediment control measures, and their failure to correct the problem, has resulted in three substantial administrative penalties:
- A February 2022 penalty of $72,500 for violations occurring between April 27 and May 6, 2021;
- A May 2022 penalty of $170,100 for violations in October 2021; and
- A January 2023 penalty of $213,600 for violations in February, 2022.
A recent inspection by the Environmental Assessment Office on November 2-4, 2022 suggests that Coastal GasLink is still having problems cleaning up its act. The inspection found that the company was violating the law regarding erosion and sediment prevention, shown by the lack of sediment fences and straw wattles installed at the site, among other contraventions.
The polluted water running into local streams can have a massive negative impact. Greg Knox, Executive Director of SkeenaWild Conservation Trust explained the impact of sediment runoff on waters and fish:
It’s deposited on top of the gravel, which prevents water from flowing under and through the gravel and that’s what brings oxygen to the salmon and steelhead eggs. So you basically suffocate salmon and steelhead. … It can also kill juvenile salmon at high concentrations and impede adults from being able to draw oxygen out of the water.
The continued non-compliance of environmental orders by the company demonstrates a pattern of disregard of the local environment and legal requirements. What can be done to encourage the company to change its behaviour to comply with environmental orders, since clearly repeat administrative penalties have not had the desired result?
The warnings, orders and administrative penalties issued by BC’s Environmental Assessment Office may not even fully capture the company’s compliance issues. The Narwhal reports that Fisheries and Oceans Canada has halted monitoring of the construction’s impacts on fish and any compliance issues under the Fisheries Act due to alleged safety concerns (despite the department’s concerns that earlier monitoring had been inadequate). The reduced enforcement of environmental laws due to tensions stands in stark contrast to the huge investment in a controversial militarized division of the RCMP (the Community-Industry Response Group or C-IRG) charged with enforcing the injunction.
The revelations of Coastal GasLink’s environmental non-compliance and continued disregard for the law also raises questions about Justice Church’s characterization of Coastal GasLink as a company engaged in lawful activities but opposed by unlawful protesters. Should a law-breaking party be entitled to the court’s protection?
The doctrine of clean hands
The rules for when injunctions should be issued come out of a broad category of court powers related to “equity” or fundamental questions of fairness. Judges considering such applications have always insisted that the parties seeking injunctions and similar remedies “must come with clean hands”, meaning that they have not acted in a way that is unfair or unreasonable.
The “dirty hands” conduct has to bear directly relate to the issue at hand; someone cannot be denied injunctive relief simply because they are shown to have acted badly in some other context. Thus, a 2009 case concerning a blockade of CN Railway by members of the Mohawk Nation resulted in an injunction benefiting CN, notwithstanding an argument that the company was part of a long history of poor treatment of First Nations by Canada and by railway companies in general.
The fundamental issues in this action are whether CN had a right to operate its main line in the Territory and whether the defendants had a right to blockade the line. Facts that are unrelated to the operation of this line, by this railroad, in this location could not give rise to an equity that would defeat the plaintiff's claim. Thus, allegations of mistreatment of First Nations people in general, or misconduct of railways in general or even of CN in general, that are not directly related to this dispute, are what the law considers "scandalous and vexatious" – they are pleaded to raise irrelevant issues or to attack the opposing party, not to respond to the issues.
In that case there was nothing about CN’s conduct in relation to this particular railway line that raised a suggestion of dirty hands.
However, it seems quite arguable that Coastal GasLink’s pattern of violating the law on the very pipeline that protesters are blockading could provide a more direct connection between the alleged “dirty hands” and the request for an injunction.
Indeed, in the 1998 decision of the BC Supreme Court in Slocan Forest Products v. Valhalla Wilderness Society the defendants argued that an injunction preventing interference with road building operations should be set aside on various grounds, including an allegation that the company was violating forestry laws. Justice Meiklem did not find evidence that the logging company was actually violating the law, in part due to evidence that “the construction is being inspected twice weekly by forestry officials with no notice of non-compliance.” However, the court left unaddressed the question of the injunction might have been set aside if the company had been found to be breaking the law.
Could Coastal GasLink’s injunction be overturned?
For the most part, the clean hands doctrine has been considered at the time an injunction is issued (although events that have occurred since the original dispute arose can be considered). However, particularly in disputes involving a large groups of protesters, it is generally permissible for protesters or members of the public who may not have been heard at the time the injunction was issued to apply to have it set aside. New information defining the rights of the parties may also be a basis for considering whether or not an injunction should be set aside.
For instance, 1997 in British Columbia v. Perry Ridge Water Users Association, Justice Parrett of the BC Supreme Court set aside an injunction because a logging company plaintiff had failed to notify the court about several reports concerning landslide risk which the judge felt “created a misleading picture of events.”
With the recent revelations of the nature and extent of Coastal GasLink’s non-compliance, there is a case to be made that Coastal GasLink no longer has clean hands in relation to its construction of the pipeline. The company has violated the law repeatedly, and has continued to do so even when notified, warned, ordered and fined against its actions. The lack of legal compliance occurred in the construction of the gas pipeline, and the harm caused by the lack of compliance directly relates to the fears of environmental damage raised by the protesters.
Against this, Coastal GasLink would likely argue that if BC has not actually shut down the construction operations, it continues to have a legal right to build it and the courts should not refuse an injunction.
However, the courts have previously been aware of the potential for these public disputes over resource development to harm their reputation, especially if the public sees them as siding with resource companies over what be considered broader public rights or interests. In Allingham Logging v. Mychajlowycz (2001), Justice Williamson noted that injunctive relief, while available to resource development companies, “should only be followed in the last resort,” because:
The risks attendant upon the converting of a dispute between the citizen and the logging company or the citizen and the government into a dispute between the citizen and the court are serious indeed. It would benefit no citizen and indeed no institution, be it a corporate body or a government, if the legitimacy and the effectiveness of the court were compromised.
In Teal Cedar Products Ltd. v. Mashari (2021), Justice Saunders declined to extend an injunction against anti-logging protesters because she felt that the conduct of the RCMP in enforcing the injunction was so inappropriate as to undermine the reputation of the court. Her decision was overturned on appeal, but this result might have been very different if there had been a finding of inappropriate or illegal conduct against the logging company itself.
In our view, the optics of the BC Supreme Court issuing an injunction in support of a company’s construction of a pipeline, when the construction itself is breaking the law in many ways, are horrible.
However, there is a broader reason that the courts should consider setting aside an injunction under these circumstances. As we have written previously, BC has a problem with repeat offender polluters that it does not seem able or willing to correct – Coastal GasLink’s track record is unfortunately all too common.
To the extent that the courts should be a tool of the rule of law, an approach to injunctions that requires resource companies to comply with the law could be a powerful tool, particularly for those projects which are most controversial.
The overturning of the injunction order issued to Coastal GasLink would presumably allow members of the Wet’suwe’ten Nation and other environmentally concerned protestors to once again block development of the pipeline. Judges may be concerned that this is sending the wrong message.
However, they should be equally or more concerned by Coastal GasLink’s abysmal compliance record and the immediate danger its non-compliance poses to the local environment and Indigenous territories, as well as the reputational damage to the court of being seen to authorize this illegal activity.