Canada: Legal Challenges To Site C Dismissed

In the past few months, several applications for judicial review relating to BC Hydro's Site C Project (the "Project") have been dismissed. These legal challenges to the Project followed the approval of its environmental assessment at both the provincial and federal levels. By way of background, the environmental assessment with respect to the Project proceeded by way of a Joint Review Panel representing both the provincial Environmental Assessment Office and the Canadian Environmental Assessment Agency. The Joint Review Panel issued a report (the "Report") setting out findings and recommendations relating to the Project, upon which both the provincial ministers responsible for the environmental assessment (the "Ministers") and the federal Governor in Council (the "GIC") were to make decisions respecting the Project. In October 2014, both the provincial Ministers and the federal GIC approved the Project. Aboriginal and affected landowners challenged this decision on several grounds in both Federal Court and the Supreme Court of British Columbia.

PEACE VALLEY LANDOWNER ASSOCIATION V. BRITISH COLUMBIA (ENVIRONMENT), 2015 BCSC 1129

In this case, landowners affected by Site C challenged the environmental assessment certificate issued by the provincial Ministers on the grounds that the Minsters failed to consider or implement certain recommendations (the "Recommendations") made in the Joint Review Panel's Report. In particular, the landowners argued that the Ministers failed to consider the Report's recommendations that:

(a) the issues of estimated project cost and revenue requirement be referred to the B.C. Utilities Commission (the "BCUC") for determination;

(b) the issues of long-term pricing and load forecasts be referred to the BCUC;

(c) BC Hydro undertake further research on issues relating to alternative energy sources; and

(d) the issues of load forecast and demand side management be referred to the BCUC.

Contrary to these Recommendations, the Ministers issued an environmental assessment certificate for the Project without referring any issues to the BCUC or requiring any further study. The landowners argued that the Ministers erred in failing to implement these Recommendations as conditions attached to approval of the Project.

The Court rejected arguments put forward by the landowners that the Ministers had "ignored" the Recommendations. The Court noted that the Ministers explicitly stated that they had considered all of the Recommendations, and held although the Ministers did not accept all of the Recommendations, this did not mean they had ignored them.

The more pressing issue was whether the Ministers acted unreasonably in failing to implement the Recommendations. In that respect, the Court noted that the Ministers' decision was a highly political one based on a consideration of a wide range of competing factors, and was thus entitled to a significant degree of deference. Second, the Court found that the refusal to implement recommendations that would defer aspects of the Project's approval to the BCUC could not have been unreasonable given that the Clean Energy Act, S.B.C 2010, c. 22 (the "Clean Energy Act") explicitly removed the BCUC's jurisdiction to make decisions relating to the Project. Thus, the Court concluded that the decision not to implement the Recommendations was "clearly within the range of reasonable options in light of the facts and the law" and therefore dismissed the petition.

PROPHET RIVER FIRST NATION V. BRITISH COLUMBIA (ENVIRONMENT), 2015 BCSC 1682

In this case, various Treaty 8 First Nations (the "Petitioners") challenged the Ministers' decision to issue an environmental assessment certificate in respect of the Project on both constitutional and administrative grounds.

At the constitution level, the Petitioners argued that (a) the Ministers were "constitutionally obligated to determine whether the Project constituted an infringement of their treaty rights under Treaty 8, and, if so, whether the Project was justified"; and (b) the Ministers failed to adequately consult and accommodate the interests of the Petitioners.

With respect to the question of infringement, the Court concluded that the Ministers did not have an obligation to determine whether or not the Project constituted an unjustified infringement of treaty rights given the limited scope of the review. As stated by the Court:  

The responsibility of the Ministers under the EAA is to determine whether a project should be permitted to proceed in light of the considerations set out in s. 10. The EAA does not provide the Ministers with the powers necessary to determine the rights of the parties interested in the project under consideration. The Ministers have no power to compel testimony, hear legal submissions from the parties or require production of documents. The procedures set out in in the EAA are simply inadequate to permit determination of the issues framed by the petitioners in this proceeding. In addition, it is obvious that the Ministers have no particular expertise with respect to those issues.

The infringement issue as raised by the petitioners requires the resolution of the proper construction of Treaty 8, a determination of the nature and extent of each petitioner's traditional territory and a decision as to the effect of the jurisprudence to date on these issues. It is in every respect a rights-based issue and requires a rights-based resolution. [Emphasis added.]

For essentially the same reasons, the Court also determined that it would be inappropriate to determine the infringement issue on the judicial review application given that the record before the Court "was inadequate to permit [the Court] to make the necessary findings of fact to determine whether there has been an infringement and, if so, whether it can be justified." The Court therefore concluded that the issue would be properly determined through an action commenced by a notice of civil claim.

The Court also held that the Ministers had properly discharged their obligation to consult and accommodate. The Court described the significant efforts at consultation and accommodation that had taken place, which in its view were sufficient. The Court found that despite such efforts, "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." In other words, the only outcome that would be satisfactory to the Petitioners would be if the Project was not approved. In such circumstances, all that was required of government was to "provide a satisfactory, reasoned explanation as to why the position was not accepted." The Court found that the Joint Review Panel's report constituted a satisfactory explanation in that regard.

Turning to the administrative issues, the Petitioners argued that (a) the Ministers' decision was unreasonable because it ignored relevant factors; and (b) the Ministers' decision gave rise to a reasonable apprehension of bias.

With respect to the first argument, the Petitioners relied on the fact that the Joint Review Panel had recommended further study on issues such as cumulative effects, and had also recommended that the BCUC review certain aspects of the Project, as discussed above. The Court rejected that argument because it "in substance calls for the court to reweigh the information that was before the Minister" and because the Ministers "could not be said to be acting unreasonably in declining to refer matters relating to the Project to the Utilities Commission in view of the provisions of the [Clean Energy Act] that expressly exempt the Project from the jurisdiction of the Utilities Commission".

Finally, the Court also rejected the Petitioner's argument that pre-existing provincial policy requiring the development of hydroelectric power in the region had caused the Ministers to close their minds to alternatives, such that approval of the Project was a "foregone conclusion". The Court found that such an argument "amounts to a collateral attack on the [Clean Energy Act], which gives statutory effect to the Two Rivers Policy." In other words, simply following legislative requirements cannot give rise to a reasonable apprehension of bias.

In the result, the Court dismissed the petition.

PEACE VALLEY LANDOWNER ASSN. V. CANADA (ATTORNEY GENERAL), 2015 FC 1027

In this case, the Federal Court dismissed an application for judicial review arising from the GIC's decision to approve the Project. The only issue was whether the GIC's approval of the Project was unreasonable, given that the Joint Review Panel had found that the date for the Project selected by BC Hydro (2024) was not justified. In the Joint Review Panel's view, the need for the Project would not be justified until 2028 – four years later.

The Federal Court found that a difference of four years was "not significant in the life of the Project" and noted that "forecasting need is inherently uncertain and the methods employed by BC Hydro were confirmed to be sound in such an uncertain task". The Court also noted that the GIC was "charged with making a highly polycentric decision and deserves deference in this regard", and that as a body of elected officials, it was "accountable to the electorate: the public itself".

Accordingly, the Court held that the GIC's decision was not unreasonable and dismissed the application for judicial review.

PROPHET RIVER FIRST NATION V. CANADA (ATTORNEY GENERAL), 2015 FC 1030

This decision concerned largely the same issue that was determined in Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682 (discussed above) – specifically, whether the GIC had a duty to determine whether approval of the Project would infringe treaty rights and, if so, whether such infringement could be justified. For much the same reasons that the B.C. Supreme Court concluded that the provincial Ministers were not required to undertake such analysis, the Federal Court similarly held that the GIC was not required to consider the issue of infringement. The Court also concluded that the federal government had reasonably discharged its duty to consult and accommodate the interests of the affected Treaty 8 First Nations. The application for judicial review was dismissed.

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