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 Council ("NNTC").
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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