B.C. says it violated its own privacy laws when it gathered personal information from Coastal GasLink about “various individuals” involved in a high-profile conflict over the controversial pipeline project.
The province did not say how Coastal GasLink obtained the personal information, nor did it provide details about who was affected, instead arguing in documents filed with B.C.’s information and privacy watchdog, the Office of the Information and Privacy Commissioner, that releasing further information could exacerbate the breach and harm its relationship with the Wet’suwet’en Nation’s hereditary leadership.
“The ministry is aware that it did not possess the authority under Section 27 of FOIPPA [Freedom of Information and Protection of Privacy Act] to indirectly collect the personal information in the records,” lawyers with B.C.’s attorney general’s office said in documents filed with the OIPC earlier this year.
“Containment of a privacy breach cannot logically include ordering a further disclosure and dissemination of this sensitive personal information that the ministry did not have authority to collect.”
According to the submission to the OIPC, Coastal GasLink provided information to B.C.’s now defunct LNG Canada Implementation Secretariat, a branch of the province’s Energy Ministry, which then shared it with the Ministry of Indigenous Relations and Reconciliation “to inform them of the views of Coastal GasLink regarding the risks and activities in the area” prior to ministry staff visiting Wet’suwet’en territory.
B.C.’s Freedom of Information and Protection of Privacy Act states that personal information must be collected directly from the individual. While the act provides exceptions, the province did not suggest that any applied in this case.
The Tyee learned about the breach after it asked the OIPC to review information withheld by the province in response to a freedom of information request. In a July 3 decision, an OIPC adjudicator upheld the province’s decision to withhold most of the information, saying releasing it would be an unreasonable invasion of personal privacy.
While the information was sensitive enough to prevent public disclosure, it was not sensitive enough to trigger legislation that requires the government to notify people affected by a privacy breach, a spokesperson for B.C.’s Ministry of Citizens’ Services wrote in an email to The Tyee.
The privacy breach occurred in 2021, as members of the Wet’suwet’en Nation and their supporters occupied a work site where Coastal GasLink was preparing to drill under the Morice River, known to the Wet’suwet’en as Wedzin Kwa.
On Oct. 12, 2021, Rachel Shaw, who was at the time executive director with B.C.’s LNG Canada Implementation Secretariat, sent an email to Tom McCarthy, then acting assistant deputy minister with the Ministry of Indigenous Relations’ Negotiations and Regional Operations Division.
McCarthy is now the ministry’s deputy minister and Shaw is senior executive director with B.C.’s Clean Energy and Major Projects Office.
The five-page email was provided to The Tyee in response to a freedom of information request filed in early 2022. Most of its contents were redacted under sections of the act that protect personal information and intergovernmental relations.
In March 2022, The Tyee asked the OIPC to review the province’s decision to withhold the email’s contents. As the date for an inquiry approached late last year, the province notified the OIPC that it had discovered “an information incident” related to the records.
In a Jan. 11 submission to the OIPC, lawyers for the province said they were aware that the ministry likely did not have the authority to indirectly collect the personal information and that the Citizens’ Services Ministry had been asked to investigate.
The province said that releasing more information could harm B.C.’s “relationship with the Wet’suwet’en Nation, including in particular the Wet’suwet’en Hereditary Chiefs.”
Some of the information “would likely be viewed as controversial or in bad faith,” the province added, saying that it “does not adequately represent all the productive discussions and progress that has been made toward reconciliation.”
‘It’s industry that is steering the government’
B.C. created the LNG Canada Implementation Secretariat in 2018, after LNG Canada, a consortium of international investors, announced it would proceed with its export terminal in Kitimat. The facility, which will liquefy gas transported through the Coastal GasLink pipeline for overseas shipping, is set to come online next year.
Coastal GasLink, which was built by Calgary-based TC Energy, announced mechanical completion last year.
The secretariat’s purpose was to act as the province’s “main interface” with LNG Canada and Coastal GasLink, as well as an “internal interface for all involved provincial government agencies, the federal government and local and Indigenous communities,” the province said in its submission to the OIPC.
One of its primary functions was to “disseminate key information to and from government ministries to ensure all government objectives related to the project were being met,” lawyers for the province wrote.
Wet’suwet’en traditional leadership has opposed pipeline development through its traditional territory since before the Coastal GasLink pipeline was proposed more than a decade ago.
While the province and Coastal GasLink have pointed to agreements signed with five of six Wet’suwet’en band councils as evidence of support for the project, hereditary leaders maintain that it’s the nation’s traditional governance system — not band councils, which were created by the Indian Act — that has jurisdiction over the territory.
Canada and B.C. appeared to affirm that jurisdiction in a memorandum of understanding signed with the Wet’suwet’en Hereditary Chiefs in 2020, which said that “Wet’suwet’en rights and title are held by Wet’suwet’en houses under their system of governance.”
The MOU set out plans for negotiating a Wet’suwet’en title agreement, but that agreement has never been reached.
Chief Na’Moks, a Hereditary Chief from the Wet’suwet’en Tsayu Clan who also goes by John Ridsdale, told The Tyee that those discussions were active in October 2021.
But they were about to break down, Na’Moks added.
“It got to a point where anything we said was being ignored because they want the [Coastal GasLink] project,” Na’Moks said.
On Nov. 14, 2021, the Hereditary Chiefs evicted Coastal GasLink and blocked the Morice Forest Service Road, which provided access to the pipeline project and work camps, stranding hundreds of pipeline workers. A high-profile police action followed days later, resulting in dozens of arrests.
Na’Moks said the Hereditary Chiefs were in the midst of planning a meeting with government when an airplane filled with RCMP officers landed in Smithers to enforce Coastal GasLink’s injunction, upending the talks.
In an email to The Tyee, B.C.’s Indigenous Relations Ministry said it remains committed to implementing Wet’suwet’en title and looks forward “to returning to active discussions as soon as the Wet’suwet’en are ready to resume rights and title discussions under the MOU.”
It said that any solutions must involve both traditional leadership and band councils, something that must be resolved within the nation.
“The CGL project was challenging to relationships [and] there is also a desire to repair them and look to the future,” a ministry spokesperson wrote. “There will be many important questions that need answering and much healing will be required.”
Na’Moks characterized the province’s privacy breach as “normal operating procedure.”
“Any kind of damage that happens to people personally, and it doesn't matter their ethnic origin, it's collateral damage,” he said. “We know that it’s industry that is steering the government, provincially and federally.”
Na’Moks pointed to the Narwhal’s recent reporting into leaked recordings that show Liam Iliffe, who worked as a lobbyist for TC Energy, boasting about the company’s ability to influence government. Iliffe moved to TC Energy after leaving a senior position with B.C.’s premier’s office in 2022.
Sleydo’ Molly Wickham, a member of the Gidimt’en Clan and a prominent Wet’suwet’en figure in opposing the pipeline project, was among those arrested in November 2021. Sleydo’ had been occupying Coyote Camp, which consisted of cabins established at Coastal GasLink’s drill site, when the email containing personal information was exchanged within government.
Sleydo’ questioned why the Indigenous Relations Ministry, which is tasked with furthering reconciliation with First Nations, would have relied on information from industry rather than speaking directly with Wet’suwet’en leadership.
“They could have just asked [Gidimt’en Hereditary Clan Chief] Woos questions,” she said, adding that the province was in active discussions with the Chiefs at the time.
She also pointed out that the province was working with prominent Haida negotiator Miles Richardson, who had been hired a month earlier to assist dialogue between the parties, when the information breach occurred in October 2021.
In response to The Tyee’s questions about why it relied on information from Coastal GasLink rather than speaking directly with the Wet’suwet’en or the negotiator, a spokesperson for the Indigenous Relations Ministry said that “government was communicating with all parties during that period, including through our facilitators, to find a path forward.”
Sleydo’ said she has not been contacted by the province about the breach, nor had she heard about anyone who had. She said she could only speculate on the nature of the information that was shared.
Sleydo’, who lives relatively close to the pipeline route, said surveillance by Coastal GasLink’s private security company, Forsythe Security, is common. Both she and Na’Moks described being followed, having their licence plate numbers recorded and experiencing around-the-clock surveillance.
These allegations are backed up by an Amnesty International report, released last year, which described intimidation, harassment and unlawful surveillance of Wet’suwet’en land defenders by the RCMP and Forsythe Security. The human rights organization added that its own researchers were “followed, filmed and photographed” while visiting Wet’suwet’en territory.
Information collected by Forsythe Security has been used in court against those arrested under Coastal GasLink’s injunction, in addition to information collected from social media by a private investigator working for the RCMP.
Internal emails released to The Tyee show that provincial employees also exchanged information obtained online, including from an anonymously authored blog known to make false and inflammatory claims about the pipeline conflict.
A Nov. 26, 2020, email sent to Tom McCarthy by a co-worker, for example, included a link to the blog. While the province initially withheld part of the link, saying it contained personal information because it included a name, it reversed that decision after a complaint from The Tyee. Sleydo’’s name was contained in the link.
It’s just one of several internal emails that included links to the blog. Links to the blog are also included in the five-page email sent to Indigenous Relations as it negotiated with the Hereditary Chiefs in October 2021.
In an email to The Tyee, B.C.’s Energy Ministry said the blog “was not used by ministry staff as an information source.” It did not respond to a followup question about the purpose of sharing the links between provincial employees.
Sleydo’ said it was “disrespectful” that government would use an unreliable source to inform itself about the Wet’suwet’en.
“That's not how you have relationships with somebody,” Sleydo’ said. “Communication is the foundation of any relationship. If they're going behind our backs and using disinformation to try to undermine our efforts and our system, then I think that that says a lot about what they think of us.”
‘Cynical and disingenuous’
The province’s failure to notify people affected by the breach while also saying that the information is too sensitive to release is a “have your cake and eat it too” argument, says Matt Malone, an associate law professor at Thompson Rivers University whose research focuses on privacy and access to information.
“The government's actions can be perceived as prioritizing its own interests over the rights of individuals,” he said. “It strikes me as cynical and disingenuous by the government to be using privacy arguments in this way.”
When asked about the outcome of its investigation into the breach, a spokesperson for B.C.’s Citizens’ Services Ministry confirmed that “some non-sensitive personal information had likely been provided to the province without clear authority under the Freedom of Information and the Protection of Privacy Act.”
The spokesperson added that it was not required to notify those affected because the information was “determined to be non-sensitive.”
When The Tyee noted the province’s earlier description of the information to the OIPC as “sensitive personal information,” the ministry said there are “two different standards” under the act for determining risks with disclosing personal information.
Third-party personal information contained in a freedom of information response cannot be disclosed as it would be an unreasonable invasion of privacy, the ministry said.
“However, when determining the risk of harm arising from a privacy breach, the standard of risk is different and notification is not required unless there is a real risk of significant harms such as identity theft,” the spokesperson wrote.
The ministry added that steps taken to remediate the breach included “targeted conversations” with staff involved in the incident and “written guidance that emphasized that personal information should be collected directly from the individual the information is about unless an exception applies.”
All public servants receive privacy training when they are hired and renew their training every two years, the ministry added.
Malone called these efforts “minimal or definitely insufficient.” He said that remediation should include not just training, but also a policy review and new best practices.
“It's not just privacy breach notification measures,” Malone said. “It's mitigation for the future. It's ‘What are you doing so that this doesn't happen again?’”
Malone said this breach was “unique” because privacy concerns usually focus on information leaks rather than improper collection.
“Privacy rights are multi-faceted,” Malone said. “They pertain to the collection of the information, they pertain to the use of the information, they pertain to the disclosure of the information. We tend to focus on the disclosure piece, but I think the collection is important, too.”
A spokesperson for the OIPC said the office does not keep records specifically about the improper collection of personal information through a third party but added that the most common privacy breaches involve stolen, lost or mistakenly disclosed personal information.
Statistics released in the OIPC’s most recent annual report show that “unauthorized access/sharing” of information accounted for more than 20 per cent of all reports to the commissioner last year, exceeded only by “misdirected communications,” which accounted for more than one-third of reported incidents.
The Ministry of Citizens’ Services confirmed in its response to The Tyee that it had not informed the OIPC of the 2021 breach, saying it was not required to do so, but added that it did provide notice of its investigation.
The OIPC’s inquiry decision last month about The Tyee’s information request doesn’t discuss the breach, nor does it address Section 25 of B.C.’s information and privacy act, which requires public bodies to release information that is in the public interest.
Malone said he found that surprising.
“This is the construction of a pipeline that is eminently in the public interest to discuss,” he said. “It strikes me as strange that the discussion of the public interest didn't come into the commissioner’s consideration.”
Read more: Indigenous, Energy, Rights + Justice
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