Project Proponents in BC are keenly aware that First Nations
legal issues must be given due consideration in many natural
resource industries such as mining, forestry, hydro and oil and
gas. The BC Court of Appeal has upheld that a First Nation
organization should have been properly included in a consultation
process over the Cache Creek Landfill Project. It is a
message to all statutory decision makers in BC that short cuts in
consultation will be legally flawed. Businesses may also need
to be diligent where they are aware that there is known First
Nation interest not at the consultation table.
On February 18, 2011, the BC Court of Appeal released its
reasons in Nlaka'pamux Nation Tribal Council v.
British Columbia (Environmental Assessment Office).
The Court of Appeal has reversed the BC Supreme Court's
decision on a key consultation requirement. The project
involves a proposal for an extension of the existing Cache Creek
landfill used for waste generated in the Lower Mainland. The
site of the landfill expansion is within territory claimed by both
the Nlaka'pamux Nation and the Secwepemc Nation. Among
the Nlaka'pamux Nation, different positions were represented by
a variety of entities, including the Nlaka'paumux Nation Tribal
The Court of Appeal held that the section 11 order (the
"Order") issued under the Environmental Assessment
Act (the "Act") was deficient. The Court held
that the Act requires section 11 orders to include any First
Nations consultation that is to form part of the process. In
this case, the EAO failed to modify the Order even though it was
informed of NNTC's request to be brought into the environmental
assessment process. Instead, the EAO offered to consult with
NNTC outside of the assessment process. The Court held that
the denial by the EAO to provide a role for NNTC within the
assessment process was a denial of access to an important component
of the planning process and did not result in adequate
consultation. In short, the EAO should have modified the
Order to set out the role of NNTC.
The Court also noted that meaningful consultation faces
challenges when different Aboriginal entities represent different
portions of the Nation and take conflicting positions.
However, an absence of consensus among groups within the Nation
should not compromise the Crown's duty to act honourably to
achieve a more efficient process.
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The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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