Fort Nelson First Nation wins legal challenge; Environmental Appeal Board cancels Nexen water license granted by BC government for fracking in Horn River Basin

Water licence for northeast B.C. fracking operation cancelled by Gordon Hoekstra, September 6, 2015, Vancouver Sun in Calgary Herald
The Fort Nelson First Nation has won a potentially precedent-setting decision from the B.C. Environmental Appeal Board that cancels the water licence of a natural gas fracking operation in northeast B.C.

The appeal board — in a decision that took 20 months to deliver [long enough to let Nexen finish fracing with water from that water source?] — concluded the science behind the licence was fundamentally flawed and the province did not consult the First Nation in good faith.

Both the province and the company involved, Nexen, had argued using the water would have no significant adverse environmental effects and there was adequate consultation.

Calgary-based Nexen, owned by Chinese state-controlled CNOOC Ltd., also made a plea that cancelling the licence would jeopardize hundreds of millions of dollars in investments.

But in a Sept. 3 decision, outlined in a 120-page report, a three-member appeal board panel cancelled the licence that allowed Nexen to extract water from a small lake about 90 kilometres northeast of Fort Nelson. The panel allowed Nexen to use the water it already has in storage.

“I think it’s going to set a precedent that B.C. now needs to pay attention and needs to start looking at critical environmental values throughout all of our territories — not just my territory or the other neighbouring First Nations territories, but all of British Columbia,” Fort Nelson First Nation chief Liz Logan said in an interview Monday.

“They need to have the proper science, they need to have facts they rely on. They need to have experts they rely on. They just can’t arbitrarily make a decision because of industry’s request.”

Nexen — which recently had 95 of its pipelines ordered shut down by an Alberta regulator after it had an oil and water pipeline failure there — could not be reached for comment Monday. Officials with the B.C. Ministry of Forests, Lands and Natural Resources, the agency that issued the water licence, said they would not be able to respond to questions until Tuesday.

Nexen had been issued temporary licences by the B.C. Oil and Gas Commission to take water from the a year from the small North Tsea Lake shallow, 13-hectare lake from 2009 through 2011. It was issued a long-term licence by the Natural Resources Ministry in 2012, which was to end in 2017.

While Nexen was approved for 2.5 billion litres of water a year, enough to fill about 1,000 Olympic-sized swimming pools, the company estimated they needed only 1.2 billion litres a year for their fracking operations, and, in fact, used even less than that.

In making its decision, the appeal board said that internal ministry correspondence showed the province intended to issue the water licence regardless of promised meetings with the Fort Nelson First Nation, and had no intention to substantially address concerns that might have been raised by the First Nation.

“The panel finds that this conduct was inconsistent with the honour of the Crown and the overall objective of reconciliation,” said its decision.

The panel also found that the province’s conclusion that the water withdrawals would have no significant impacts on the environment, including fish, riparian wildlife, and their habitat, was based on incorrect, inadequate, and mistaken information and modelling results. The limited data available after water was extracted still did not support a conclusion the environment would not be harmed, said the appeal board.

“Rather, the evidence before the panel establishes that excessive water withdrawals may cause adverse effects on the habitat of aquatic and riparian species, including species that the First Nation depend on for the exercise of their treaty rights,” said the panel.

Logan, the chief of the Fort Nelson First Nation, said they are not against economic development but stressed the environment, their culture and traditional way of life must also be protected.

She noted the First Nations had approved 150 referrals for various gas developments last year in their territory.

In a decision last year, a B.C. Supreme Court judge had rejected a lawsuit from a pair of environmental groups which argued the B.C. government was skirting its own laws by allowing energy companies to use temporary licences, often for years, to extract large quantities of water for fracking, instead of making them apply for long-term licences. [Emphasis added]

Fracker loses water licence by The Canadian Press, September 8, 2015, castanet
The Environmental Appeal Board has overturned a water licence granted to an oil and gas company in northeastern British Columbia, ruling the licence was based on bad science and bad faith.

The Fort Nelson First Nation has successfully challenged the long term water licence granted in 2012, which allowed Nexen Inc. to pump water from Tsea Lake, in a remote area about 100 kilometres northeast of Fort Nelson.

Millions of cubic metres of water were being used by Nexen for shale gas fracking, but the Environmental Appeal Board says the pumping must stop immediately.

It says the science behind the licence is fundamentally flawed and it also ruled the province acted in bad faith when it did not properly consult with the Fort Nelson First Nation, breaching a constitutional duty to consider potential adverse effects of the water licence.

Fort Nelson First Nation Chief Liz Logan says Nexen pumped water from the lake even during drought conditions, seriously affecting the lake, fish and surrounding environment.

She says the appeal board ruling sends a clear message to oil companies and the B.C. government that the liquefied natural gas industry will not proceed at the expense of the environment and treaty rights. [Emphasis added]

Fort Nelson First Nation wins legal challenge stopping Nexen water license for fracking in British Columbia by Oil Voice, September 7, 2015
Fort Nelson First Nation has won a major legal challenge against the BC government and Nexen Inc., an upstream oil and gas company. The first long-term water license granted in the Horn River Basin for shale gas fracking has been cancelled, effective immediately, by the Environmental Appeal Board.

The license, issued to Nexen in 2012, authorized the company to pump millions of cubic meters of water from Tsea Lake, a small lake in FNFN territory, each year until 2017.

‘Granting this license was a major mistake by the Province,’ said FNFN Chief Liz Logan. ‘Our members have always used the Tsea Lake area in our territory to hunt, trap, and live on the land. The company pumped water out of the lake, even during drought conditions. There were major impacts on the lake, fish, beavers, and surrounding environment. Water is a huge concern for us, and for all British Columbians. By approving this license, the Province demonstrated it is not protecting the public interest in water.’

After three weeks of hearings involving expert reports, scientific literature, and other evidence, the EAB has rejected the license on two grounds:

  • The EAB found that the science behind the license was fundamentally flawed in both concept and operation.
  • The EAB found that the Province failed to consult FNFN in good faith and breached its duty to consider the potential impacts on FNFN.

The EAB said that BC government officials showed a lack of good faith in their dealings with FNFN on the license, and that the consultation process was ‘seriously flawed.’ The EAB found that the Province breached its constitutional duty to consider the potential adverse effects on FNFN.

The EAB also rejected the Province’s conclusion that the license would have no significant environmental impacts, finding that the license was fundamentally flawed in concept and operation. It found that the company’s water withdrawal scheme was not supported by scientific theory or adequate data as it was based on incorrect, inadequate, and mistaken factual information and modelling results.

‘We want to work with the Province and industry on sustainable development in our territory, but we are being ignored,’ said Chief Logan. ‘We have in the past, and are willing to do so moving forward, as long as our treaty rights are respected and the public interest in environmentally sustainable development is upheld.’

By cancelling the license, the EAB has set a precedent for future provincially supported fracking and LNG exports. Licenses will not be able to pass, unless the following standards are sufficiently met:

  • meaningful consultation with FNFN and other affected First Nations on water and land use;
  • basing natural resource decisions on valid scientific models and adequate data; and
    upholding the public interest in preserving BC’s lakes, rivers and land for future generations.

‘This decision sends a clear message to the BC government and to the fracking industry that the LNG dream will not happen at the expense of our lakes, rivers, and treaty rights,’ said Chief Logan. [Emphasis added]

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