This case arose from a judicial review of a
decision approving an Environmental Assessment
Certificate (the "EAC") on the construction of
a transmission line in Columbia from the Interior to
the Lower Mainland (the "ILM Project"). Parts of the
ILM Project traversed areas over which the Petitioners, the Upper
Nicola Indian Band, the Okanagan Nation Alliance and the
Nlaka'pamux Nation Tribal Council, assert claims of Aboriginal
title and/or rights. The Petitioner First Nations claimed
entitlement to various relief on the basis that the Crown
Respondents, the Minister of the Environment, Minister of
Energy, Mines and Petroleum Resources and the Minister of
Aboriginal Relations and Reconciliation as well as British Columbia
Hydro, failed in their constitutional duty to consult. The
substantive issue was whether the Court should quash the joint
decision of the Ministers to approve the EAC.
The First Nations argued that the Crown took an overly narrow
view of its duty to consult and that such duty once engaged by
current actions, included existing and ongoing impacts of past
failures to consult. The First Nations argued that the scope
of the duty to consult in this case included the aggregate effects
of the full ILM system. Alternatively, the First Nations argued
that even if the duty was not that broad, the Crown committed
to engage in concurrent consultation as part of the environmental
assessment process on past claims and that ongoing rights
infringements related to past actions and should be required to
fulfill that commitment.
The Crown argued that they had fulfilled their constitutional
obligations and relied on their efforts. These efforts
included consultation with sixty First Nations, seven Tribal
Associations, six incorporated municipalities, four unincorporated
municipalities and three regional districts on the
project. The Crown denied that they agreed to consult on past
claims and ongoing rights infringements related to past
actions. The Crown also argued that there was no duty to
consult on existing and ongoing impacts related to past actions as
part of the environmental assessment process.
The petitions were dismissed. Justice Savage held that in
approving the EAC, the Ministers had a duty to ensure there was
appropriate consultation with the affected First Nations.
However, any duty of consultation would have to relate to the
impact on the claimed rights of the current decision under
consideration. Justice Savage held that the constitutional
duty to consult did not apply to the larger historical impacts of
previous works, or the ongoing existing impacts arising from
previous decisions. The decision followed the ruling of the
Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier
Sekani Tribal Council ("Rio Tinto") to
conclude that the purpose of the duty to consult is to protect
unproven rights from the effects of proposed conduct pending claims
resolution. In this case, it was held that the required
consultation concerned the adverse impacts flowing from the
specific ILM Project and that there was no broader commitment to
consult on the existing or ongoing impacts.
The First Nations had attempted to distinguish Rio
Tinto on the basis that that case dealt with unique facts and
a narrow question. Justice Savage disagreed and confirmed that
consultation is to be directed at the potential effects of
contemplated conduct, not the past, existing, ongoing or future
impacts of past decisions or actions. Justice Savage agreed
that the decision in Rio Tinto recognized the importance
of historical and ongoing issues but these did not form part of the
consultation on present proposed developments. The historical
effects on potential claims of Aboriginal
rights were held to be outside the scope of the
right to consultation.
As to the process of consultation followed in this case, Justice
Savage found that it amounted to a process of "deep
consultation" in that various opportunities
were offered, including an invitation to participate
in a Working Group, a request to comment on the various
work plans drafted in relation to the project and the ability
to comment and review the Project Terms of
Reference. Justice Savage also found that there was no
commitment to harmonize the separate consultations which had taken
place on existing works and that the Crown could not be interpreted
as having committed to suspend the environmental
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