Canada: Site C Update – Federal Court Judicial Review Proceedings To Commence This Week, Following BC Hydro's Receipt Of Provincial Authorizations To Begin Construction

This article provides a consolidated overview of recent developments in the six judicial review proceedings challenging the governmental approvals of Site C. Please check our blog for future updates on key developments in the proceedings.

BACKGROUND

BC Hydro's Site C Clean Energy Project (Site C) is being proposed as a key project to meet the Province's long-term electricity needs. If it proceeds, Site C will involve the construction of a third dam and 1,100 megawatt hydroelectric generating station on the Peace River in northeastern British Columbia.

On October 14, 2014, following the release of the environmental assessment report of the Joint Review Panel (JRP) on May 1, 2014, Site C received environmental approvals from the provincial and federal governments. In particular, it received: (i) an environmental assessment certificate (EA Certificate) from the BC Minister of Environment and approval of the EA Certificate by the Minister of Forests, Lands and Natural Resources Operations; and (ii) a decision of the Governor in Council (Justification Decision) finding that the significant adverse environmental effects of the Project identified in the decision statement of the Federal Minister of the Environment (Decision Statement) were justified in the circumstances. On December 16, 2014, the Province of BC announced its approval of Site C.

Between June and December 2014, six applications for judicial review were filed in the BC Supreme Court and Federal Court by various Treaty 8 First Nations located in BC and Alberta, and by the Peace Valley Landowner Association (PVLA), challenging various governmental decisions and approvals in connection with Site C. The status of each of these proceedings is discussed below.

Despite the ongoing nature of the legal challenges to Site C, the BC Ministry of Forests, Lands and Natural Resource Operations issued certain initial authorizations for Site C on July 7, 2015 under the Land Act, Forest Act, Water Act and Wildlife Act, authorizing commencement of construction activities such as timber removal, road building and other preparatory work.

1. British Columbia Supreme Court Proceedings

The two petitions filed in the BC Supreme Court were heard between April 20 and May 6, 2015. The court released a decision in the PVLA application on July 2, 2015, while judgment is reserved in the Treaty 8 First Nation proceeding.

Peace Valley Landowner Association

The PVLA is an incorporated society that represents local landowners that may be affected by Site C. By petition filed on October 28, 2014, the PVLA sought to set aside the provincial decisions to issue the EA Certificate. On July 2, 2015, Justice Sewell released the court's decision in Peace Valley Landowner Association v. British Columbia (Environment), 2015 BCSC 1129. The central issue in the litigation was whether the BC Minister of Environment and Minister of Forests, Lands and Natural Resource Operations (Ministers) gave adequate consideration to the recommendations of the JRP, and in particular the recommendations to address various economic considerations relating to the costs, benefits, need for and alternatives to Site C (Economic Recommendations).

By way of background, following the EAO's review of the JRP's report, the Executive Director of the Environmental Assessment Office (EAO) advised the Ministers that the Economic Recommendations were outside the scope of the JRP's mandate in the environmental assessment process and should not be made conditions of the EA Certificate. Accordingly, the Ministers issued the EA Certificate, but excluded the Economic Recommendations from the conditions to be attached to the EA Certificate.

The court agreed with the positions taken by BC Hydro and the Ministers that none of the Economic Recommendations could properly have been made conditions to the EA Certificate, as they were directed at government rather than BC Hydro or did not directly affect Site C. Accordingly, the court held that there was no basis to conclude that the Director had erred when he advised the Ministers that the Economic Recommendations were outside the scope of the JRP's mandate. In the result, the Ministers' treatment of the Economic Recommendations was held to be reasonable in the circumstances, and the court dismissed PVLA's petition.

BC Treaty 8 First Nations (Prophet River First Nation, West Moberly First Nations and McLeod Lake Indian Band)

Three Treaty 8 First Nations (Prophet River First Nations, West Moberly First Nations, and McLeod Lake Indian Band) filed this petition on December 22, 2014. However, McLeod Lake Indian Band withdrew its petition following the hearing and ceased to be a party to the proceedings on July 2, 2015.

The First Nations sought to quash the issuance of the EA Certificate on various grounds, including on the basis that the issuance of the EA Certificate was an unjustified infringement of their Treaty 8 rights and in breach of the Crown's duty to consult. They also sought an injunction preventing the Ministers from issuing any permits or authorizations, or taking any other action for the purpose of enabling Site C to proceed in whole or in part, and an injunction enjoining BC Hydro from performing any work pursuant to the EA Certificate until the petition is decided by the court.

The Ministers maintained that they engaged in deep consultation with Treaty 8 First Nations during the Site C review process and acted in a manner consistent with the honour of the Crown. They also argued that the issue of whether Treaty 8 rights had been infringed was not suitable for summary disposition on judicial review, as it would require a full consideration of the evidence and historical record.

As noted above, the court heard the First Nations' petition following the PVLA's petition in April and May 2015, and the judgment is under reserve.

2. Federal Court Proceedings

Four judicial review applications were also filed in the Federal Court challenging various aspects of the review process that preceded Ministerial approval of Site C. Mikisew Cree First Nation and Athabasca Chipewyan First Nation recently withdrew their application, but the remainder of the applications are scheduled to be heard together in Vancouver from July 21 to July 24, 2015. A concise summary of each of these legal challenges is provided below.

Peace Valley Landowner Association

In this petition filed on November 6, 2014, the PVLA seeks to set aside the Justification Decision of the Governor in Council as well as the Decision Statement of the Federal Minister of Environment, on the grounds that their determinations that the significant adverse effects of Site C are justified are not reasonable in light of the recommendations of the JRP. In particular, they argue that since the JRP concluded that the adverse effects have not been demonstrably justified, there was no reasonable basis upon which the Minister could come to a different conclusion.

Treaty 8 First Nations (Doig River First Nation, Prophet River First Nation and West Moberly First Nations and McLeod Lake Indian Band)

Four Treaty 8 First Nations filed this application for judicial review on November 5, 2014. However, McLeod Lake Indian Band withdrew from this proceeding in June 2015.

The remaining First Nations seek: (a) an order to set aside the Governor in Council's Justification Decision; and (b) an injunction to prevent the issuance of any federal permits or authorizations or taking any other action to enable Site C to proceed (or an order to quash any such permits or authorizations or actions in the event they are issued or taken).

The application is made on the grounds that Site C cannot be reasonably justified under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) or at common law, as it infringes the First Nations' Treaty 8 rights, or alternatively that Site C cannot be justified in accordance with the principle of the honour of the Crown.

Alberta Treaty 8 First Nations (Mikisew Cree First Nation and Athabasca Chipewyan First Nation)

The Mikisew Cree and the Athabasca Chipewyan First Nations have Treaty 8 lands located in northeastern Alberta. They jointly commenced two applications for judicial review in the Federal Court, but as noted above, they recently withdrew from the Federal Court proceedings and are no longer scheduled to participate in the hearings taking place this week.

In their first claim filed on June 9, 2014, the First Nations initially sought to quash certain sections and recommendations of the JRP's report. In particular, the First Nations opposed the JRP's conclusion that Site C would have negligible effects on the downstream Peace-Athabasca Delta, which is within their traditional lands. They argued that the JRP's methodology was flawed, that the JRP did not observe principles of procedural fairness, and that the JRP came to an unreasonable conclusion based on the evidence before it.

In a separate claim filed on November 12, 2014, the First Nations sought to set aside the Federal Minister of Environment's Decision Statement on the grounds that Canada (a) failed to meet its duty to consult the First Nations, (b) failed to comply with the requirements under CEAA 2012, and (c) improperly and unreasonably relied on the JRP report.

RELATED BLUEBERRY RIVER FIRST NATIONS ACTION

Please see our previous article regarding the treaty rights infringement claim commenced by Blueberry River First Nations (BRFN) against the Province of British Columbia on March 3, 2015. Although BRFN's application for judicial review does not directly refer to BC Hydro or Site C, the claim could still have potential implications for the proposed project, as it is located within the First Nation's traditional territory in the Upper Peace River region of northeastern BC.

The BRFN's claim is one of the first treaty rights infringement claims to be argued primarily on the basis of cumulative impacts on a First Nation's entire traditional territory. BRFN seeks a court declaration that, by causing or permitting such cumulative impacts, the Province has breached its treaty and fiduciary obligations to BRFN, and has infringed on BRFN's treaty rights. BRFN also seeks interim and permanent injunctive relief against any activities that would cause further cumulative effects. If successful, the claim could have significant implications for current and future projects located in BRFN's traditional territory.

In closing, it remains to be seen how the remainder of these challenges to Site C will ultimately be determined. Please refer to our blog for a future update regarding the Federal Court hearings taking place this week.

* Special thanks to Jack Ruttle and Kevan Hanowski for their assistance in preparing this update.

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