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Saturday, March 2, 2019 | Your community newspaper since 1916

Pipeline lawsuit could have big impact Frank PEEBLES Citizen staff fpeebles@pgcitizen.ca The legal action by the Lheidli T’enneh First Nation against Enbridge could change the landscape of Canadian law. It could change Canada’s physical landscape as well. The LTFN has filed a petition in Prince George court asking for a trio of injunctions that would, if the court finds in their favour, shut off the natural gas flowing through two pipelines across the local territory, and fix the damage caused. It would also force the company to dig them up and move them to the territory of a First Nation willing to have them. (Almost all land in northern B.C. is someone’s traditional territory.) All this was a response to a massive explosion of an Enbridge natural gas pipeline only 500 metres from the homes of the main LTFN residential community about 15 kms northeast of Prince George. The blast occurred on Oct. 9 and, in the First Nation’s view, exposed the company’s lack of emergency response, the company’s disregard of the First Nation as a primary point of contact for any activities (repairing the pipe, starting the gas back up, etc.) on their land, and the company’s inability to assure anyone’s public safety since the explosion. “No matter what the ruling, the case will give further clarity by the court as to what Aboriginal title means in actual terms. The fact there is no treaty or formal occupancy agreement between the LTFN and any government asserting the right to govern (British Columbia, Canada, etc.) makes for a spirited legal argument in the making, one with Supreme Court of Canada possibilities similar to the groundbreaking William Case (aka Tsilhqot’in Case) which

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A natural gas line owned by Enbridge runs over the Fraser River and through Lheidli T’enneh territory. rendered an historic judgment in 2014. Here is the basic anatomy of this lawsuit, in the words of LTFN Chief Dominic Frederick and their legal specialist Malcolm Macpherson of Clark Wilson LLP. Macpherson outlined the beginnings of the lawsuit, which trace back to the beginnings of human occupancy of this area. “The Lheidli T’enneh have existed as a distinct Indigenous people with a common shared territory, and have exclusive ownership, occupancy, and use of its territory at and prior to the contact with Europeans and at the date over which sovereignty was asserted over British Columbia in

or about 1846, which is subject to Aboriginal rights and title recognized and affirmed by Section 35 of the Constitution Act, 1982. The Lheidli T’enneh territory was never extinguished by way of treaty or other measure, and remains unceded,” he said. Macpherson added the lawsuit was filed “on the basis of nuisance, negligence and trespass. The pipeline, the explosion, the repairs, and the return to service of the pipeline are, and continue to be, an unreasonable interference with the use and enjoyment of the Lheidli T’enneh’s proprietary interests, and as such constitute nuisance. “The defendants owed and

continue to owe a duty of care to the Lheidli T’enneh to exercise such reasonable care as required by the construction, the operation, and the maintenance of a natural gas pipeline across British Columbia, and on Lheidli T’enneh territory and reserves. (Those actions) greatly impacts the Aboriginal rights and title of the Lheidli T’enneh, and the defendants have failed to minimize those impacts as required by law.” Enbridge may choose to sit down with the LTFN out of court and come to an arrangement. Their two pipelines through this area deliver an estimated 80 per cent of the province’s home heating, plus many other uses of natu-

ral gas. Some is even delivered from these pipes to customers in Washington State. Shutting it off would be, at minimum, an inconvenience to millions of people. However, said Frederick and Macpherson, Enbridge and two federal agencies (the Transportation Safety Board and the National Energy Board) contend they do not know what caused the enormous explosion and intense fire. It was so violent it shook houses kilometres away, and glass shards rained from the sky as the heat glazed the dirt and spewed it through the air. The affected burn zone measured about 5.2 hectares. — see ‘IT’S NOT JUST, page 3

NRCA accuses Marriott contractor of welching on money owed Mark NIELSEN Citizen staff mnielsen@pgcitizen.ca The Northern Regional Construction Association board of directors has called on its members to boycott the Marriott Courtyard Hotel, saying the general contractor hired to guide the project to completion still owes local firms some nine months after the hotel opened. NRCA executive director Scott Bone said Friday that as of late 2018, Calgary-based UPA Construction Group Ltd. still owed about $1.8 million for work subcontractors properly completed and now wants them to accept reductions ranging from one to 30 per cent before the company will cut a cheque. “It’s unethical, it’s unprofessional and it goes against the contract that they have,” Bone said. He said the move to boycott Marriott is being done reluctantly, noting the dispute is primarily between UPA and the NRCA. However, he said the Marriott has a responsibility because the company manages the contract for its general contractors. “We want to build a relationship with the Marriott, we want the local community and our members to use the facility, but

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Workers remove scaffolding from the Marriott Courtyard Hotel in November. right now our board of directors and members are upset and, as you could probably appreciate, why would they go and spend money at a hotel when they haven’t even been paid for work performed?” Bone said.

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“This, in our view, is a short-term solution and our goal is to focus on the challenges we’ve had with UPA Construction in not paying our members in a timely manner or requiring them to reduce their

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contract pricing.” Bone also stressed that local businessman Rod McLeod, who played a key role in getting the project off the ground, has been “instrumental” in voicing the NRCA’s concerns. “He has been beating the drum and he has been very supportive in trying to get a resolution to this,” Bone said. Contracts at stake range from $5,000 to as much as $900,000 and over 15 contractors were affected, according to Bone. “Now you can see why (the) NRCA, who represents these members, has taken action,” he said. The NRCA has about 180 members and a notice has been circulated to about 1,800 construction firms in the province. “It’s a beautiful hotel, there are a lot of people who work there, it’s a business enterprise,” he said. “But I have been talking to them about this for over a year and we have indicated to them the challenge that not getting UPA to pay would have an impact on their reputation in the community.” UPA Construction Group Ltd. president Richard Allen declined to comment Friday afternoon, saying he is away and would get back to The Citizen on Tuesday. Built for about $30 million, the hotel opened its doors in May.

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