Canada: What Do The Recent Site C Decisions Mean For Major Projects In British Columbia?

Last Updated: September 30 2015
Article by Robin M. Junger and Rohan Hill

Over the past month, the British Columbia Supreme Court and the Federal Court have rendered a set of decisions pertaining to the Site C Clean Energy Project. In doing so, the Courts have made clear that there is no requirement for First Nations to agree that consultation has been adequate, and they have made clear that governments can continue to govern in the public interest provided proper consultation has occurred. These decisions are important not only for the Site C Hydroelectric project – but also for any major project in British Columbia where the Crown and First Nations may disagree on whether consultation was adequate.

Background

The Site C Clean Energy Project is a proposed dam and hydroelectric generating station that would be constructed on the Peace River near Fort St. John, BC. The Project components include a 1050 metre long dam, an 1100 megawatt generating station and associated structures, an 83 kilometre long reservoir, a transmission line, and the realignment of four sections of Highway 29. At the time of its environmental assessment, the project had an estimated cost of $7.9 billion dollars (an estimate that has subsequently increased to at least $9 billion).

In late 2011, the British Columbia Environmental Assessment Office and the Canadian Environmental Assessment Agency announced their agreement to conduct a cooperative environmental assessment and established a joint review panel. Public hearings were held over 26 days in late 2013 and early 2014, and on May 1, 2014, the joint review panel released its report. In its report, the panel found that the project would likely cause various significant adverse environmental effects that could not be mitigated, including on fishing opportunities and practices, hunting and trapping, and traditional uses of land by First Nations. The panel also found that the project was likely to cause various significant adverse cumulative effects including on current use of land and resources for traditional purposes and on cultural heritage resources.

The Federal Minister of the Environment issued a decision statement on October 14, 2014 (re-Issued on November 25, 2014) concurring with the panel's position that the project was likely to cause significant adverse environmental effects and communicating the Governor in Council's decision that those potential significant adverse environmental effects were "justified in the circumstances".

Simultaneously, on October 14, 2014 the BC Minister of the Environment issued a provincial environmental assessment certificate for the project, deciding that, after considering the panel's report, the benefits of the Site C project outweighed the risks of significant adverse environmental, social and heritage effects.

The environmental assessment outcome and subsequent permitting have prompted an array of litigation. Several judicial reviews have been commenced before the British Columbia Supreme and Federal Courts by the Treaty 8 First Nations Prophet River and West Moberly (the Doig River First Nation is also a party to the Federal Court proceeding, and the McLeod Lake Indian Band was initially a party to two of these proceedings but subsequently withdrew). A further two judicial review applications were commenced by the Peace Valley Landowners Association, one before each of the courts mentioned above, and two judicial review applications were commenced in Federal Court by the Alberta First Nations Mikisew Cree First Nation and Athabasca Chipewyan First Nation. The Peace Valley Landowners Association's proceedings were both dismissed (though they have appealed the dismissal of the British Columbia Supreme Court proceeding) and the Alberta First Nations withdrew their judicial review applications before the Federal Court.

Recent Court Decisions

In decisions issued August 28 and September 18, 2015, the Federal and British Columbia Supreme Courts, respectively, dismissed judicial review applications pursued by the Prophet River First Nation and West Moberly First Nation (the "Applicant First Nations") in relation to the environmental assessment of the Project (a further judicial review challenging post-EA permits has been filed before the British Columbia Supreme Court but is yet to be heard in full as of writing). The Applicant First Nations had expressed strong opposition to the Project, and central to both proceedings was the issue of whether the duty to consult and accommodate had been met.

In the Federal Court proceeding, the Court recognized that there was no underlying requirement that First Nations and the Proponent reach agreement. The Honourable Justice Manson cited heavily from the recent decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352, where the Court, itself citing Haida, noted that "The focus is not on the outcome, but on the process of consultation and accommodation" and that "Fundamentally, the Crown is not under a duty to reach an agreement; the commitment is to a meaningful process of consultation in good faith".

To determine the depth and sufficiency of consultation, Justice Manson considered the record before him. He noted that over a seven year process of consultation, BC Hydro had met with the interested Treaty 8 First Nations 177 times and provided nearly $6 million in capacity funding, which was in addition to funding provided by the provincial and federal governments. BC Hydro had consulted with them prior to preparing the first draft of the Environmental Impact Guidelines, prior to designing and implementing field studies, prior to finalizing the design of the project, prior to preparing the EIS, and prior to the Province's decision as to whether to proceed with the project. Further, the Minister and Cabinet had reached their decisions after extensive input from the public, government agencies and Aboriginal groups, including the applicant Treaty 8 First Nations.

Justice Mason noted that consultation with the Applicant First Nations had been a lengthy process, conducted in good faith, and was extensive both qualitatively and quantitatively. He also noted that it was apparent from the record that while the Crown engaged with the Applicant First Nations to address mitigation measures to be taken after the joint review panel released its report, the Applicant First Nations had refused to engage in that dialogue after deciding that the only viable solution for them was for the Project not to proceed. After noting that a commitment to the consultation process does not require a duty to agree, Justice Mason explained that what was required was "good faith efforts to understand the concerns of the Applicants", and proceeded to hold that the Respondents had made such efforts.

In the British Columbia Supreme Court Proceeding, the Honourable Justice Sewell similarly canvassed the fairly extensive consultation history, and noted that among the 77 conditions included on the environmental assessment certified issued by the Ministers were a number of accommodation measures intended to avoid or reduce potentially significant adverse impacts on Aboriginal rights and further noted that BC Hydro had made a number of modifications to the Project during the environmental assessment for the same purpose. Justice Sewell also discussed the financial payments and contributions offered by BC Hydro and the Province to the Applicant First Nations (though not accepted by them), which involved lump sum and installment payments likely totaling in the tens of millions of dollars.

As Justice Mason had, Justice Sewell cited prior jurisprudence for the position that the consultation process does not require acceptance of a First Nation's position and that it is not necessary to reach agreement with them. Meaningful consultation requires a respectful consideration of the position put forward by a First Nation. In this case, Justice Sewell was satisfied that the government had made reasonable efforts and acted in good faith with respect to consultation with the Applicant First Nations, and noted that following with respect to the outcome of those consultation efforts:

[159] In the end the parties were unable to reconcile their differences over the Project. However, I conclude that they failed to achieve reconciliation because of an honest but fundamental disagreement over whether the Project should be permitted to proceed at all. I am satisfied that the government made a good faith effort to understand the petitioners' position on this issue and made reasonable efforts to understand and address the petitioners' concerns.

[160] The object of consultation and accommodation is reconciliation between governments and First Nations. In this case, that reconciliation was not achieved because the government has concluded that it is in the best interests of the province for the Project to proceed and the petitioners have concluded that there is no adequate accommodation for the effects of the Project.

Conclusion

These decisions illustrate that just as the duty to consult does not imply a duty to agree on the substantive issues, there is similarly no requirement that parties agree on the sufficiency of consultation itself. While the Court will indeed supervise the Crown's actions to ensure the duty to consult has been met, that is not the same as requiring agreement.

None of this is to say that the Crown or proponents should take the duty to consult lightly, and concerns expressed by First Nations about the adequacy of consultation should be considered as genuinely as concerns about the effects of a project. But provided that is done, the lesson of these cases is that major projects will not necessarily be "tied up in court" simply because there is a lack of consensus. Given the diverse views associated with major project development generally, this is a very important point for governments, industry and First Nations to all keep in mind. Governing in the public interest may not always be easy, but despite frequent assertions to the contrary, the courts have given enough guidance to make clear that it can be done.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

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
Robin M. Junger
Rohan Hill
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais 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