In Coastal First Nations v British Columbia
(Environment), 2016 BCSC 34, the Court decided British
Columbia must issue its own environmental decision and consult
First Nations on the Northern Gateway Project (NGP), instead of
deferring to the federal environmental assessment and consultation
processes. In doing so, the Court carved out a limited role for
British Columbia to assess and decide on the NGP, an
interprovincial pipeline that has been approved by the National
Energy Board (NEB), and expanded the trigger for consultation
with First Nations.
In 2010, the BC Environmental Assessment Office (EAO) entered
into an Equivalency Agreement (Agreement) with the NEB. The
Agreement stated that the NGP did not require a provincial
assessment under the BC Environmental Assessment Act (EAA)
and could proceed without an EAA certificate (EAC). The NEB and the
Canadian Environmental Assessment Agency formed a Joint Review
Panel in 2010. After the federal review, the Project was approved
with its 209 conditions on June 18, 2014.
The Court held that the Agreement could not relieve the Province
of its obligation to issue a decision under the EAA, and its
related duty to consult affected First Nations. Three broad
implications emerge from the Court's analysis.
B.C. Cannot Rely on the Federal Decision
The Court decided that sections 27 and 28 of the EAA allow the
EAO to rely on the federal environmental assessment but not the
federal decision. The Agreement was invalid to the extent that it
purported to remove the need for an EAC for the Project and a
decision by the Province under section 17 of the EAA. The Court
found the Legislature intended for the Province to maintain its
decision-making authority for projects that may have a significant
Province has Little Guidance on How to Exercise its Limited
The Court agreed that while the Province could not refuse to
issue an EAC, it nonetheless has the constitutional right to
regulate the "territorial environmental impacts" of the
interprovincial undertaking, as the "dominant
characteristic" of the EAA is the regulation of environmental
effects in the Province. The Court decided that the Province may
add further conditions to an EAC that narrow the scope of the
federal approval and its conditions but there are limits to the
conditions that the Province may impose. Conditions may only be
imposed so long as those conditions do not "impair" or
create an "operational conflict" with the federal
approval. In effect, the Province is left to exercise a small
fragment of its section 17 EAA authority, with no clear guidance on
how to do so.
Crown's Duty to Consult Can Be Triggered by Inaction
The Province did not breach its duty to consult the First
Nations before signing the Agreement in 2010. However, the Province
breached its duty by failing to consult with the Coastal First
Nations and the Gitga'at First Nation between December 2013 and
June 2014, when it knew that the Province's concerns about the
NGP – which were shared by the First Nations – had not
been substantially addressed and the Province could have terminated
the Agreement. Here, Crown inaction, instead of "contemplated
conduct", triggered the Province's duty to consult. This
case represents an expansion of existing consultation triggers and
may open the door to a new line of duty to consult claims.
This decision has profound implications for reconciling
provincial and federal jurisdiction over the environmental review
of interprovincial projects, and the related Crown duty to consult
affected First Nations. It also casts more uncertainty over the
NGP, and any inter-provincial project that must be reviewed.
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