Canada: BC Hydro Site C Litigation Update – Two Challenges To Site C Heard In Federal Court

This post provides an update on recent developments in the litigation commenced in respect of BC Hydro's Site C Clean Energy Project (Site C). Please see our earlier post for an overview of each of the Federal Court and Provincial Court proceedings.

The Provincial Court judicial review proceedings were heard by Justice Sewell in the BC Supreme Court between April 20 and May 6, 2015. Since our last update: a) the Peace Valley Land Owner Association (PVLA) has filed an appeal of the BC Supreme Court's decision to dismiss its petition; and b) two petitions brought in Federal Court by the Mikisew Cree First Nations and Athabasca Chipewyan were discontinued by the two petitioners prior to being heard.

The other two challenges to Site C were heard in Federal Court the week of July 21, 2015, both by Justice Manson. The challenges took the form of two separate applications: one brought by the PVLA, which focused on administrative issues (PVLA Petition); and the other brought by the Doig River, Prophet River and West Moberly First Nations, which centered on both administrative and aboriginal law issues (First Nation Petition). In both applications the respondents were the Attorney General of Canada (AG Canada) and BC Hydro.

Below is an overview of the arguments advanced in the Federal Court hearings.

Background

Both Federal Court applications challenge the Governor in Council (Federal Cabinet)'s decision made on May 1, 2014 that the significant adverse environmental effects that will likely be caused by Site C, as identified by the Federal Minister of the Environment, are justified in the circumstances (Justification Decision). In accordance with the Canada Environmental Assessment Act, 2012 (CEAA 2012), the Cabinet issued the Justification Decision following the Minister's issuance of a decision statement outlining the significant adverse environmental effects of the project (Decision Statement). It is the Cabinet's Justification Decision (rather than the Minister's Decision Statement) that was challenged in both petitions.

PVLA Petition

One of the issues in this proceeding is whether the Federal Cabinet must provide written reasons when making a justification decision under CEAA 2012.

PVLA took issue with the Justification Decision on the basis that the Cabinet failed to address whether there is a present need for Site C (as opposed to a future need). PVLA argued that Cabinet was required to assess the issue of present need, and the fact that Cabinet's Order in Council does not refer to this issue suggests that Cabinet did not consider it. PVLA argued that courts should not consider the reasons that might have been provided by Cabinet—if the required analysis is not present in the Order, the decision should be set aside.

BC Hydro and AG Canada, in response, argued that Cabinet has no obligation to provide reasons for discretionary decisions made under CEAA 2012. They argued that Cabinet considered the evidence of the Joint Review Panel, the positions of various stakeholders, and the broader public interest, and then made a discretionary policy decision that should be owed a large degree of deference by the courts. They argued that, so long as the decision is tenable in substance, given the record and evidence available, it should not be disturbed.

The court has, in effect, been asked to consider the extent of the reasons (if any) that Cabinet must provide when making important policy decisions. The court's decision on this issue could have policy implications if Cabinet is required to provide a greater degree of transparency in relation to the issuance of Orders in Council.

First Nation Petition

The key issues in this proceeding relate to the substantive and procedural limits on the Crown's right to "take up" Treaty 8 lands. The First Nation applicants asked the court to determine whether Cabinet is required, before making its Justification Decision, to make a determination of whether all of the development projects it authorized would have the cumulative effect of eroding the First Nations' Treaty 8 rights to the point where no meaningful rights remain (i.e. infringement).

The First Nation applicants argued that before deciding whether the adverse environmental effects of Site C were justified, the Federal Cabinet had to determine whether the development of Site C would infringe the applicants' Treaty 8 rights. They argued that Treaty 8 places both procedural and substantive limits on the Crown's ability to "take up" land under Treaty 8.

Procedurally, the Crown has a well-established duty to consult with First Nations whenever there is a possibility that Aboriginal rights will be affected by a Crown action or decision. In this case, the applicants argued that the Crown did not engage in sufficiently deep consultation. Substantively, the applicants argued that Treaty lands must not be taken up by the Crown if the result will be that no meaningful Aboriginal rights will remain (as such taking up would amount to an infringement of Treaty rights). They asserted that the Crown failed to consider whether all of the development in the Peace Valley—including the proposed Site C dam—would have the cumulative effect of constituting infringement by eroding their Treaty rights to the point where no meaningful rights remain.

BC Hydro and AG Canada argued that Cabinet did not, and cannot be, required to determine whether Site C would infringe the applicant's Treaty 8 rights. They accepted that, procedurally, the Crown needed to engage in deep consultation with the applicants. They also accepted that Cabinet needed to consider Aboriginal rights in coming to its Justification Decision. However, they maintained that Cabinet is not required to make a substantive determination as to Treaty rights infringement, and that doing so would be beyond the scope of Cabinet's jurisdiction. (We also note that the taking up of Treaty 8 lands in the province falls within the provincial Crown's constitutional jurisdiction).

The respondents further argued that the decision-making process undertaken by Cabinet is wholly unsuited to adjudicating disputed rights and Treaty infringement claims. Instead, they argued that a legal action in the provincial Supreme Court with discovery and a full trial on the merits would be the appropriate means of adjudicating such a claim of Treaty infringement.

Also noteworthy was Amnesty International's appearance as an intervenor in this petition. The Amnesty International representative argued that principles of international law obligated Cabinet, in making its Justification Decision, to ensure that Aboriginal rights were respected. In particular, Amnesty International referred to the United Nations Declaration on the Rights of Indigenous Peoples, arguing that although the UN Declaration is non-binding in Canada, it does not necessarily conflict with Canadian domestic law and is persuasive in establishing that Cabinet must determine whether Site C would infringe treaty rights. (The counterpoint to this position is the argument that certain principles of the UN Declaration are overbroad on a plain language reading, and as such are at odds with Canada's constitutional framework for the protection of Aboriginal and treaty rights).

The First Nation Petition raises important considerations about the scope of Cabinet's obligations to consider impacts on Treaty First Nations when making a Justification Decision that could significantly affect their Treaty rights.

Conclusion

Judgment is reserved in both of the Federal Court petitions.

Meanwhile, 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. In late July, contractors selected to work on Site C began to mobilize for construction. BC Hydro issued a statement that it expected preliminary construction—for instance, building worker camps and roads—to begin in early August.

The West Moberly and Prophet River First Nations have since filed an injunction application seeking to halt construction pending determination of their claims.   It reamins to be seen how the application will be determined and what, if any, impact it may have on the construction schedule. We will continue to keep you updated.

To view the original article please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions