On January 13, 2016 the British Columbia Supreme Court
determined that the Province breached its duty to consult the
Gitga'at First Nations in respect of Enbridge's Northern
Gateway pipeline. The court found that a province cannot rely on
federal efforts to satisfy its duty to consult with First Nations.
Interestingly, the Court also found that while the provincial
government may rely on federal environmental assessments to make
its decisions, it cannot abdicate its decision-making authority
As an interprovincial undertaking, the Northern Gateway pipeline
(and related projects) fall under federal jurisdiction. However,
the proposed pipeline disproportionately affects BC – the
route will traverse the entire province, some 660 kilometers, and
cross more than 800 provincial watercourses. The marine terminal
will also have substantial impact on BC's coastal lands and
water. This engages the Province's shared jurisdiction over the
In an effort to avoid redundancy in the approval process, the
Province and the National Energy Board (the "NEB")
entered into an agreement intended to promote a "coordinated
approach". More specifically, the agreement provided that the
Province would defer to the NEB's environmental assessment
instead of conducting its own assessment, and issuing its own
environmental assessment certificate, as would ordinarily be
required under the Province's Environmental Assessment Act, SBC
2002, c-43 (s 17). Although the agreement could be terminated on
notice, the terms of the agreement would otherwise prevent the
Province from imposing its own conditions on the approval of the
pipeline and related projects.
The NEB subsequently constituted a Joint Review Panel,
responsible for completion of the NEB's environmental
assessment. The Joint Review Panel consulted with the Province and
affected First Nations, including the Gitga'at. The adequacy of
this federal consultation was not challenged.
On June 17, 2014 the federal government approved the pipeline,
subject to the fulfillment of 209 conditions. Notwithstanding that
four of B.C.'s five "minimum requirements" for
approving the project were not included in the conditions, the
Province did not terminate its agreement with the NEB.
The Gitga'at First Nations (and other petitioners)
complained that by agreeing to waive its discretion to issue an
environmental assessment certificate, the Province could no longer
protect the interests of the Province, or meaningfully consult and
accommodate First Nations. The Court agreed. The Honourable Madam
Justice Koenigsber declared the agreement invalid to the extent
that it removed the Province's discretion to issue an
environmental assessment certificate pursuant to section 17 of the
Province's Environmental Assessment Act and ordered
the Province to consult the with Gitga'at about the potential
impacts of the pipeline on areas of provincial jurisdiction.
This case serves as a useful reminder that even where provincial
and federal environmental jurisdictions overlap, each government
retain and exercise its own decision-making discretion (unless
the legislation otherwise permits), and
discharge its own duty to consult and accommodate First
A copy of the decision, Coastal First Nations v British
Columbia (Environment), can be found
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