On January 14, the Supreme Court of British Columbia found that
the Province had improperly abdicated its decision making authority
with respect to the Enbridge Northern Gateway Project by entering
into an Equivalency Agreement with the federal government.
Furthermore, the Court found that the Province had breached its
duty to consult with First Nations by not consulting with First
Nations on the Province's decision not to terminate the
agreement and take steps to impose conditions on the project.
The Enbridge Northern Gateway Project is an interprovincial
pipeline, and as such it falls under the exclusive jurisdiction of
the Federal government. In order to proceed, the Project requires
an environmental assessment under the Canadian Environmental Assessment Act,
2012 ("CEAA 2012") and a Certificate of Public
Convenience and Necessity from the National Energy Board
("NEB") under the National Energy Board Act ("NEB
Act"). The environmental assessment was completed on December
19, 2013 and was approved by the Minister on June 17, 2014, with
209 conditions attached to the Project. The NEB issued a
Certificate of Public Convenience and Necessity on June 18,
By agreement dated June, 2010, the British Columbia Minister of
Environment, as represented by the Executive Director of the
British Columbia Environmental Assessment Office
("BCEAO"), reached an agreement with the NEB confirming
that projects such as transmission pipelines that are within the
jurisdiction of the NEB Act would not require an assessment or
certificate under the British Columbia Environmental Assessment Act
("BCEAA"). Madam Justice Koenigsberg's decision in Coastal First Nations v. British Columbia
(Environment), 2016 BCSC 34 takes issue with this
Madam Justice Koenigsberg found that the BCEAA is legislation
with a purpose of general environmental regulation that coexists
with the federal regulation of interprovincial projects. She found
that the BCEAO did not have the authority to abdicate its authority
to grant a certificate for the Project and thereby foreclosing its
ability to impose conditions on the Project.
In our view, the decision is inconsistent with the recent
decision of the BC Supreme Court in Burnaby (City) v. Trans Mountain Pipeline
ULC, 2015 BCSC 2140, in which the Court found that the
doctrine of federal paramountcy applied to the effect that the NEB
Act's jurisdiction over interprovincial pipelines trumped
provincial laws where those laws interfere with the core
functioning of a federal undertaking. The Court went on to say that
the provincial laws remain valid, but are rendered inoperative
where their application would interfere with the federal
undertaking. Finally, the Court found that the doctrine of
interjurisdictional immunity applied to prevent provincial laws
from improperly trenching on a protected core of exclusive federal
Presumably, the same principles apply in the Coastal
case. The Project is a federal undertaking, and as such lies within
the jurisdiction of Parliament. To the extent that any provincial
laws interfere with that jurisdiction, federal paramountcy renders
the provincial laws inoperative. Furthermore, the doctrine of
interjurisdictional immunity applies to prevent the provincial law
from interfering with interprovincial pipelines – which are a
protected core of federal jurisdiction pursuant to the NEB Act.
With respect to the duty to consult, the Court found that the
Province was not required to consult with First Nations in entering
into equivalency agreements, but would be required to consult where
the operation of those agreements had the potential to adversely
affect First Nations' claims or rights. Under the
circumstances, the Court found that it was a breach of the duty to
consult for the Province not to consult with First Nations with
respect to its decision not to terminate the Equivalency Agreement
and impose conditions on the project. This issue is arguably moot,
given the Court's declaration on the requirement for a
provincial certificate summarized above.
In the absence of an appeal, the result of the decision is that
all projects that meet the thresholds of reviewable projects under
the BCEAA require an Environmental Assessment Certificate,
regardless of whether those projects are federal undertakings
subject to exclusive federal jurisdiction. While the Province may
consider a federal assessment in determining whether or not to
issue a Certificate, the project may nevertheless be subject to
potentially inconsistent conditions imposed by federal and
provincial regulators. It remains to be seen whether the decision
will have practical implications for the Northern Gateway Project,
which is fully authorized to proceed under federal
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