Canada: British Columbia’s Supreme Court Considers The Duty To Consult In The Context Of An Environmental Review Process

On April 3, 2014 the British Columbia Supreme Court released its decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568. The case concerned an application for judicial review of a Master Development Agreement (MDA) entered into between the project proponent, Glacier Resorts Ltd., and the B.C. Minister of Forests Lands and Natural Resource Operations in respect of a ski resort located near Invermere, British Columbia (Project).

The judicial review application was commenced by the Ktunaxa Nation on the grounds that (a) the Minister failed to fulfill the Crown's duty to consult and accommodate the Ktunaxa in respect of the MDA; and (b) the MDA violated the Ktunaxa's right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms.

The Court dismissed the Ktunaxa's petition, holding that the Crown had met its duty to consult and did not breach the Charter. A number of significant implications arise from the decision for resource development projects subject to Aboriginal consultation, and in particular for proponents engaged in multi-stage regulatory approval processes. This is another decision that confirms that the Crown met its duty to consult (see Osler's Update on Louis v. British Columbia, September 30, 2013).


Consultation regarding specific government conduct will be assessed in light of the past and broader consultation in respect of a project

In this case, the MDA represented the final approval required to commence development of the Project. The approval process for the Project had commenced in 1991 and spanned a period of 21 years. The regulatory process began when Glacier submitted a formal proposal to the Minister in accordance with the Commercial Alpine Ski Policy. From the outset, the Ktunaxa communicated its opposition to the Project and requested continued consultation.

The regulatory process proceeded through several phases, including (a) land-use planning for the Kootenay region; (b) an extensive environmental assessment under the B.C. Environmental Assessment Act; (c) consultation in respect of the "draft master plan" for the Project; and (d) additional meetings, workshops and studies over a period of approximately two years. The Ktunaxa was engaged throughout and provided with capacity funding. It never formally challenged previous administrative decisions in respect of the Project.

Toward the end of the process, the Minister advised the Ktunaxa that in the Minister's opinion (a) the consultation that had taken place was reasonable; (b) the Ktunaxa's outstanding issues were primarily interest-based rather than legally driven; and (c) the Project could proceed on the basis of the proposed mitigation measures. It was only at that time that the Ktunaxa took the position that its asserted Aboriginal rights could not be accommodated under any circumstances.

The Court applied the well-established jurisprudence in assessing the adequacy of the consultation and accommodation, with a focus on process, not outcomes. It concluded that when a court reviews the procedural aspects of the duty to consult, it is appropriate to consider all of the consultation in respect of past regulatory processes relating to the Project.

While not dispositive, the Court noted that the fact that the Ktunaxa had not challenged the earlier regulatory approvals lay in stark contrast to its extreme late-in-the-day "no-accommodation" view of the Project. The Court held that while a First Nation must not be punished for continuing to negotiate rather than litigate, it does not absolve the obligation to identify the asserted Aboriginal rights and title that will be affected by a project.

The Court concluded that the consultation process and accommodation offered to the Ktunaxa were reasonable in the circumstances, not least because the Ktunaxa had been extensively consulted, and practical and thoughtful accommodation and mitigation proposals had been required.

Expert evidence relating to strength of the claim will not be admissible if strength of the claim is not at issue

The Ktunaxa filed five expert reports in support of its petition. The Court considered the admissibility of the evidence in the context of the duty to consult and where a Charter right is implicated. It held that there is no need to resort to extrinsic evidence on judicial review when (a) the duty to consult is conceded; (b) the scope of consultation is agreed to be deep; and (c) consultation efforts were made in good faith.

Extrinsic evidence that goes to characterizing an asserted Charter right is not admissible on judicial review if it should have been placed before the decision-maker. Significantly, a party invoking a Charter right has an obligation to bring the relevant evidence to the decision-maker prior to the decision being made. Accordingly, new evidence relating to the nature and right of the Aboriginal rights being claimed was determined to be inadmissible, but evidence relating to the scope and adequacy of consultation was admissible.

Freedom of Religion: Section 2(a) of the Charter did not preclude the Project

According to the Ktunaxa, the Project is to be located in an area that is of paramount spiritual importance within its claimed traditional territory. The Ktunaxa believe the sacred area to be the Grizzly Bear Spirit's home and territory. It asserted that approval of the Project constituted a violation of section 2(a) of the Charter because it would result in the Grizzly Bear Spirit leaving the area.

The Court stated the test for a violation of section 2(a) of the Charter in the circumstances: when an otherwise lawful use of land is asserted to cause the loss of meaning to or fulfillment of religious practices carried out elsewhere, the interference cannot exceed the threshold of being beyond trivial or insubstantial. In order to establish a section 2(a) infringement, there must be objective proof of interference with the observance of that practice.

In reviewing the Minister's decision, the Court stated that deference should be given to the exercise of discretion, especially given the advantage that the decision-maker has in applying the Charter to the specific facts. The question for the reviewing Court is whether there was an appropriate balance between rights and objectives and whether the rights at issue were not unreasonably limited.

The Court found the Ktunaxa's underlying argument to be an assertion that the Project would cause a loss of meaning to religious actions, but not that the religious actions themselves would be constrained. As a result, the Court held that a subjective loss of meaning without some associated coercion or constraint could not meet the test and, thus, section 2(a) of the Charter did not extend to protect the right asserted by the Ktunaxa. In any event, the Court stated that the mitigation measures offered by the Minister were clearly intended to reduce the impact of the Project on the Ktunaxa's religious rights, and the decision to approve the Project was reasonable in the circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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