Benefits agreement asks First Nation to discourage members from hindering B.C. pipeline project

Community members and legal experts are concerned about provisions in benefit agreements between First Nations and companies that ask leadership to dissuade their community members from speaking out against the project.

'No municipality would be allowed to sign off on such civil restrictions,' says band member

A man stands at a Coastal GasLink worksite in February 2018. (Chantelle Bellrichard/CBC)

Community members and legal experts are concerned about provisions in a signed benefit agreement between a B.C. First Nation and a pipeline company that asks leadership to dissuade their community members from speaking out against the project.

The specific provision appears in a leaked benefits agreement between Nak'azdli Whut'en, a First Nation located roughly two hours northwest of Prince George, and TC Energy's Coastal GasLink pipeline.

The $6.2-billion Coastal GasLink pipeline will transport natural gas along a 670-kilometre route, from northeastern B.C. to a yet-to-be-constructed liquefied natural gas facility on the coast in Kitimat. The pipeline is a key part of a larger $40-billion project being headed up by LNG Canada that aims to open Canada up to the growing global LNG market.

Coastal GasLink often promotes the fact it has signed agreements with the elected leadership of 20 First Nations along the proposed pipeline route as evidence of support for its project.

But the specifics of these individual agreements have been kept out of the public eye.

Among the benefits to Nak'azdli in the leaked agreement are education and training, contracting and employment opportunities, annual legacy payments over the lifetime of the pipeline, and "general project payments" to be paid in three instalments.

But there's also a condition that the band will "take all reasonable actions" to dissuade its members from doing anything that could "impede, hinder, frustrate, delay, stop or interfere with the project, the project's contractors, any authorizations or any approval process."

That includes dissuading band members from taking part "in any media or social media campaign."

That part of the contract is drawing concern from people in the community and legal experts who say this kind of language is becoming the norm in contracts put before First Nations by project proponents.

Nak'azdli band member Nicholette Prince said she was shocked when she saw that provision in the contract.

"To me, it speaks to the fact that they really don't think we're full human beings, to be honest," she said.

"We're just in the way — like the spotted owl or the caribou. I have no idea how somebody could put that in writing. No municipality would be allowed to sign off on such civil restrictions."

Nicholette Prince, an instructor at the College of New Caledonia, is a band member of Nak'azdli Whut'en First Nation. (Supplied)

Prince said she isn't against the pipeline, though she does have concerns about "what's happening to the earth." She describes herself as a pragmatist and says she sees the benefits agreement as an opportunity to bring additional revenue into the community. 

"But it is disheartening to see agreements like this being passed that really seem to minimize our humanness," she said. 

A Coastal GasLink spokesperson said in an email that the company can't comment on any of the documentation given to CBC News because project agreements are meant to be confidential between the company and each First Nation. 

The spokesperson also wrote that Coastal GasLink values the relationships it has built with First Nations along the pipeline route and that its approach to engaging with Indigenous groups and other stakeholders is based on "building relationships, mutual respect and trust while recognizing the unique values, needs and interests of each community."

Becoming standard

Merle Alexander, a lawyer who works in the area of First Nations economic development, said he has seen this kind of provision put to Indigenous communities in benefit agreement contracts before.

"It's definitely starting to show up in the standard template," he said, noting it isn't just showing up in contracts drafted by Coastal GasLink.

Merle Alexander is an Indigenous resource lawyer with the Vancouver-based Miller Titerle and Co. (Miller Titerle)

Alexander said he's also seen communities push back successfully on this kind of clause, amending it to something more agreeable. It's important for communities to have adequate resources to be able to comb through these contracts, he said, and push back on provisions to which they object.

"If you think that the proponents' advisers and the proponent are fairly sophisticated, the fact that they're asking for that, I think, is unconscionable," he said. "I think it's illegal and contrary to the Charter."

Chief made tie-breaking vote in favour of agreement

Nak'azdli Chief Alec McKinnon said signing an agreement with Coastal GasLink was one of the most difficult decisions he's ever made. His nation was split on whether to make an agreement with the company.

In 2015, the Nak'azdli held a referendum on whether to enter into a benefit agreement with the province of B.C. for the Coastal GasLink pipeline, as well as the Prince Rupert Gas Transmission pipeline.

Nearly 300 band members took part, with more than 70 per cent voting no.

Nak'azdli was the last of the 20 First Nations along the pipeline route to sign a benefits agreement with Coastal GasLink. 

The province has also signed its own benefits agreements with 17 First Nations related to the pipeline project. A provincial spokesperson said as of today, 15 of those agreements are in effect.

Nak'azdli's chief said the band hasn't fully endorsed an agreement with the province, meaning the First Nation accounts for one of the two provincial agreements not in effect. 

By early 2018, several years after Coastal GasLink first approached Nak'azdli about its project, McKinnon said pressure from the company to sign an agreement was growing. At the time, a final investment decision from the joint-venture partners in the proposed LNG Canada project was looming.

Former Coastal GasLink president Rick Gateman is shown in a January 2019 file photo. (Chad Hipolito/Canadian Press)

McKinnon said the community was given a deadline of May 1, 2018 to decide if it was going to sign. When the decision went to a vote at council, the results were split: three councillors voted in favour, three voted against.

McKinnon made the tie-breaking vote, voting in favour.

He signed the contract in May 2018, along with former Coastal GasLink president Rick Gateman and executive vice-president Karl Johannson. The document includes more than a dozen articles, with specific provisions ranging from confidentiality clauses to specific benefits the company committed to providing the First Nation over the pipeline's lifetime.

McKinnon said he still believes signing the contract was the right choice because of the economic benefits his community stands to gain.

"To this day, many communities are still managing poverty and I feel that all these economic development opportunities from the project can be life-changing for some of our members," he said. 

McKinnon also sees the agreement as a way to ensure Coastal GasLink is open to listening to community concerns about environmental protection.

Nak'azdli recently objected to the construction schedule and the potential impact on two salmon-bearing rivers, he said, and the company agreed to amend the construction timeline.

Chief unsure how Coastal GasLink could enforce provision

When it comes to the provision around taking action to dissuade people from protesting or posting things on social media, McKinnon said he doesn't plan to monitor his community in that way. 

"It's none of my business what they do on social media," he said. "How can they enforce that clause? It's freedom of speech. They can say whatever the hell they want."

He said he also made it clear to Coastal GasLink that he wouldn't be taking action against band members should they speak out and that he doesn't think the company would try to enforce that provision.

"You see a lot of British Columbians and Canadians knocking down the project and you don't see their prime minister or premier slapping their hand and saying, 'You can't post that on Facebook.'"

Prince said it doesn't make a difference if the chief doesn't intend to enforce the provision; the fact that it was left in the agreement, she said, shows elected leadership was "willing to accept that companies have very little respect for the First Nations people they're making agreements with." 

With the agreement already signed, concerns from community members about its contents would have to be taken up internally with Nak'azdli's leadership.

If leadership wanted to change the contract, there are provisions that allow for amendments, as well as dispute resolution.

The contract also notably includes what lawyers refer to as a severability clause, where a provision of the agreement that is "prohibited or unenforceable" can be severed from the agreement without affecting the remaining provisions.