On November 22, 2012 in Halalt First Nation v British
Columbia, 2012 BCCA 472, the BC Court of Appeal overturned the
decision of a Chambers Judge regarding the BC Environmental
Assessment Office's duty to consult and accommodate the Halalt
First Nation with respect to a water well project. Specifically,
the BC Court of Appeal found that the duty to consult and
accommodate had been met.
Why the case is important
The decision of the Court of Appeal is important because it
makes clear that:
Modifications to project design and plans can be sufficient
accommodation of aboriginal interests, even if aboriginal groups
are not satisfied with those changes. It was not necessary to pay
It is not necessary to spend undue time and resources
discussing strength of claim if deep consultation is provided in
The duty to consult does not extend to activities that a
proponent might seek approval for at some point but which are
beyond the present authorization being sought.
Government staff have the ability to engage proponents and
aboriginal groups separately and in the order they deem appropriate
when consulting, provided all parties are given relevant materials
and an opportunity to comment.
This case involved a challenge to an environmental assessment
certificate issued for the Chemainus Wells Water Supply Project in
2009. The District of North Cowichan originally proposed the
installation of three wells to draw water from an aquifer on a
year-round basis, and the Halalt First Nation had concerns about
the impacts to the aquifer and related asserted aboriginal
During the assessment process, the Environmental Assessment
Office (EAO) considered the Halalt First Nation's concerns and
discussed them with the proponent. In the result, the project was
reduced from year-round well operations to operation in the winter
months, and from three wells to two, with only one well operating
at a time. The environmental assessment certificate that was
eventually issued authorized the operation of a well only on those
The District of North Cowichan indicated it would pursue
year-round well operations through a subsequent amendment of the
environmental assessment certificate.
The Chambers Judge found that the Halalt First Nation was not
adequately consulted on two bases; first, the BC EAO did not
consider and consult on the implications of year-round well
operation and second, the Halalt First Nation was not appropriately
consulted about the modifications to the project before the
modifications were made. The Chambers Judge issued an order staying
project activities pending consultation on year-round well
On the first point, the Court of Appeal returned to the
principles of Rio Tinto, emphasizing that the subject of
the duty to consult must be the specific Crown proposal at issue.
The ability of the BC EAO to address future potential adverse
impacts of year-round well operations was not compromised because
any future application for amendment to the certificate would
itself be subject to the duty to consult. The Court of Appeal
therefore concluded that the Chambers Judge erred in law by
ordering consultation on the speculative year-round well
On the second point, the Chambers Judge's finding arose
because the Halalt First Nation was not given prior notice of the
District of North Cowichan's modifications narrowing the scope
of the project. The Court of Appeal found that the changes were
directly related to the concerns the Halalt First Nation had
expressed and that the Halalt First Nation was subsequently
adequately consulted on the modified scope of the project. The
Court of Appeal held that the duty to consult, carried out
adequately on the deep end of the Haida spectrum by the BC
EAO, did not require advance notice of such modifications in the
Regarding the duty to accommodate, the Court of Appeal
overturned the Chambers Judge's decision that it was not
adequately fulfilled, finding that, in fact, the modifications to
the project were adopted in response to the Halalt First
Nation's concerns and were an accommodation of their interests.
The Court of Appeal also held that the BC EAO's refusal to
consider financial compensation as a form of accommodation to the
Halalt First Nation was not unreasonable, noting that "it is
not difficult to discern strong policy reasons for refusing
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It is relatively common knowledge that the government has a "duty to consult" aboriginal groups when undertaking actions or making decisions that could adversely affect aboriginal rights, aboriginal title and treaty rights.
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Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
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