Is Coastal GasLink compliant with the UN’s Guiding Principles on Business and Human Rights?

The United Nations Guiding Principles on Business and Human Rights (UNGPs) outlines a State’s duty to protect human rights, but also notably (on pages 13 to 26) the corporate responsibility to respect human rights.

While it may be argued that the State has a primary obligation, the UN affirms that corporations have responsibilities too.

A foundational principle in the UNGPs is that, “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”

How might this apply to the Coastal GasLink fracked gas pipeline that TC Energy (formerly TransCanada Corporation) and other investors (including the Alberta Investment Management Corporation, KKR, and now possibly Export Development Canada) intend to build on Wet’suwet’en territory in northern British Columbia?

FPIC and due diligence

The Wet’suwet’en Hereditary Chiefs have not given their free, prior and informed consent (FPIC) to the construction of the mega-project on their unceded territory to which they hold rights and title. That is a human right recognized under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to which Canada is a signatory.

The Hereditary Chiefs, however, had proposed the McDonnell Lake route rather than the company’s preferred South of Houston Alternate Route.

The company’s webpage highlights, “Coastal GasLink examined the McDonnell Lake route using our standard route selection criteria (including environmental, social, technical, economic aspects).” Among the reasons noted the company noted for its rejection of that route was, “An estimated increased capital cost of between $600 and $800 million plus one year delay negatively impacts the viability of the LNG Canada project.”

David Pfeiffer, the president of Coastal GasLink, has further stated, “The current route was selected as the most technically viable with the least environmental impact.”

From these statements, it does not appear that human rights were an explicit consideration in their decision understood as “due diligence” in the UNGPs.

The UN’s Guiding Principles state, “In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.”

Injunctions, RCMP raids

On January 27, The Globe and Mail additionally reported, “[Pfeiffer] said Coastal GasLink prefers to avoid having RCMP enforce a court injunction against protesters [Indigenous land defenders], and he hopes it will be possible to soon remove a blockade of dozens of trees on a remote logging road [the Morice River Forest Service Road] that leads to a work camp [man camp] for the final 84-kilometre stretch of the pipeline across the Coast Mountains.”

That statement came after the militarized RCMP raid on Wet’suwet’en territory in January 2019 and prior to the second raid on the territory in early February of this year.

It also came after The Guardian had reported that RCMP commanders had instructed its officers in 2019 to “use as much violence toward the gate as you want” to remove an obstruction to Coastal GasLink’s operations on the territory.

The statement by Coastal GasLink’s president also came after the United Nations Committee on the Elimination of Racial Discrimination (CERD) had called on Canada to immediately suspend work on the Coastal GasLink pipeline until free, prior and informed consent had been obtained, to cease the forced eviction of Wet’suwet’en peoples opposed to the pipeline, to prohibit the use of lethal weapons and force against Indigenous land defenders, and to withdraw the RCMP from their traditional lands.

Does a transnational corporation’s “preference” not to use force meet the obligations outlined in the Guiding Principles on Business and Human Rights?

Missing permit, missed opportunity to deescalate

An additional matter to be considered is that on January 30 of this year, about a week prior to the RCMP raid, The Narwhal reported that Coastal GasLink had yet to submit a report to the BC environmental assessment office in order for construction of the pipeline to proceed in the area of the Unist’ot’en healing lodge.

Gavin Smith, a lawyer with West Coast Environmental Law, commented, “From a practical perspective the lack of the ability to begin construction in the area gives a strong reason to avoid any armed enforcement of that injunction to allow time for discussion and further recourse to the courts if parties decide to take that route.”

That would strengthen the argument that Coastal GasLink had an option to not seek RCMP enforcement of the injunction until this matter had been resolved.

Unlawful actions by the police

Furthermore, Harsha Walia, the Executive Director of the British Columbia Civil Liberties Association, commenting on recent RCMP actions noted, “There is absolutely no legal precedent or established legal authority for such an over-broad policing power. Simply put, RCMP operations in Wet’suwet’en territory have been unlawful.”

There does not appear to have been a public statement from Coastal GasLink in regard to this finding and the role played by the RCMP in advancing the company’s project. In contrast, Coastal GasLink almost immediately commented on an RCMP investigation into alleged actions by Indigenous land defenders.

PBI, UNGPs, Binding Treaty

Peace Brigades International has expressed concerns about the gap between the promise of the Guiding Principles on Business and Human Rights and their implementation.

In response, PBI-United Kingdom and the law firm Simmons & Simmons developed a Human Rights Defenders Toolbox that “seeks to address the fact that, despite the existence of these principles, gaps in their implementation mean that human rights defenders confronting corporate interests still face escalating violence.”

And PBI-Mexico has commented, “PBI believes that a Binding Treaty has the possibility to contribute to greater accountability for companies in relation to human rights abuses and could potentially lead to greater protection of human rights defenders working on business and human rights cases throughout the world.”

Peace Brigades International is a human rights organization that accompanies at-risk human rights defenders in Colombia, Guatemala, Mexico, Honduras and Kenya, and that advocates for human rights to be upheld to make space for the peaceful resolution of conflicts.

Photo: RCMP officers look on as contractors pass through their roadblock on Wet’suwet’en territory on January 9, 2019, two days after the RCMP raided the Gidimt’en checkpoint. Photo by Chad Hipolito/The Canadian Press.