Canada: BC Supreme Court: Province Cannot Surrender Statutorily-Imposed Environmental Assessment Obligations

Last Updated: March 4 2016
Article by Charles W. Bois


The British Columbia Supreme Court has declared that the Province cannot effectively "contract-out" of its environmental certification obligations on proposed energy projects without breaching its duty to consult with affected Aboriginal groups. In Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34, the Court addressed the enforceability of the Equivalency Agreement (the "Agreement") entered into by the Environmental Assessment Office ("EAO") and the National Energy Board ("NEB") in 2010 in respect of Enbridge's Northern Gateway Pipeline Project (the "Project"). Specifically, the Court was concerned with clause 3 of the Agreement, which provided that any NEB assessment of a project would constitute an equivalent assessment under the Environmental Assessment Act, S.B.C. 2002, c. 43 ("EAA") and, therefore, would permit the project to proceed without a provincial Environmental Assessment Certificate ("EAC") – the Province's "OK" stamp for projects that may have an adverse impact on the environment.

In finding that the Province cannot abdicate its certification role by agreement, the Court engaged in an extensive statutory interpretation analysis of the EAA and concluded that the certification decision is not optional. The Court issued a declaration that the Agreement is invalid and set aside to the extent it purported to remove the need for an EAC pursuant to clause 3.

Who challenged the Agreement and why?

The legal challenge was brought by way of judicial review. The Petitioners – the Coastal First Nations Great Bear Initiative Society and the Gitga'at First Nation – objected to the EAO's decision to not address whether an EAC was required for the Project on the basis that an NEB assessment had already been conducted. The Project is a proposed pipeline that would carry an average of 525,000 barrels of diluted bitumen per day from Bruderheim, Alberta to Kitimat, British Columbia. If approved, the Project would traverse the traditional territory of many of the First Nations from the north-central coast of British Columbia and Haida Gwaii that comprise the Coastal First Nations alliance, including that of the Gitga'at First Nation.

The Petitioners argued that the Province could not abdicate its decision-making responsibility under s. 17(3) of the EAA, which requires a certification decision following an environmental assessment. In addition, the Petitioner submitted that the Province had breached its constitutional duty to consult with respect to both the signing of the Agreement and the decision to not consider whether or not to issue an EAC.

Application of the EAA to Interprovincial Pipelines

In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, the Supreme Court of Canada commented at paragraph 64 that the environment is "a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty." The BC Supreme Court relied upon these comments to dismiss the argument that the interprovincial nature of the Project brought it within the exclusive jurisdiction of the federal government and, therefore, any provincial statutory compliance requirements were unconstitutional.

The Court also observed that prohibiting provincial environmental regulation over federal works and undertakings would severely limit the Province's ability to protect the social, cultural, and economic interests in its lands and waters and would violate the principle of co-operative federalism. While the Court accepted that inter-jurisdictional immunity and paramountcy concerns could arise if the Province imposed strict conditions on the Project pursuant to its authority under the EAA, the Court stated that such a determination could not be made in the absence of awareness of the form such conditions would take.

Statutory Interpretation of the EAA

As noted earlier, the Petitioners took the position that the Province cannot abdicate its jurisdiction under s. 17 of the EAA to make a decision regarding whether to issue an EAC. The Court agreed and dismissed the argument of the Province that ss. 17, 27, and 28 of the EAA, when read together, constituted the requisite authority to enact clause 3 of the Agreement.

Utilizing the "modern approach" to statutory interpretation, the Court concluded that any interpretation of the EAA ought not create a statutory loophole that would function to subvert the EAA's underlying objective of balancing commercial interests and environmental protections. Once a project has been designated a "reviewable project" under the EAA, s. 8 mandates that no activity may be undertaken in the furtherance of that project except in accordance with an EAC. The only relief from this prohibition is provided by s. 10(1)(b), which permits the Executive Director to obviate the EAC requirement if the project will not have a significant adverse environmental, economic, social, heritage or health effect. According to the Court, these sections establish that a project with potentially adverse environmental effects must both undergo an environmental assessment and obtain an EAC.

The Province argued that since s. 17(3) of the EAA makes no reference to environmental assessment agreements entered into with other jurisdictions under s. 27, then there is no requirement for the Province to review or make an EAC decision with respect to any project falling within such an agreement. The Court disagreed with this position and emphasized the distinction between an "assessment" and a "decision based upon an assessment". Whereas an "assessment" is an "evaluation or an estimate of worth" according to the Oxford English Dictionary, s. 17(3) establishes the authority to make a decision on the basis of that assessment. Therefore, regardless of the outcome of the assessment or the existence of a s. 27 environmental assessment agreement, the Province must make a certification decision. In short, a s. 27 agreement (such as the Agreement) does not eliminate the Province's s. 17(3) responsibility to consider whether or not to issue an EAC. The Court supported this conclusion by observing that nowhere in the EAA did the Legislature combine the assessment and certification processes.

Honour of the Crown

The Court also dismissed the argument of the Province that the duty to consult rested with the federal government due to the fact that it had conducted the Project's environmental assessment under the Agreement. In support of this contention, the Province cited the Saskatchewan Court of Appeal ("SKCA") decision in Buffalo River Dene Nation v Saskatchewan (Minister of Energy & Resources), 2015 SKCA 31, where the SKCA stated at paragraph 104 that "actual foreseeable adverse impacts on an identified treaty or Aboriginal right" are required to trigger a duty to consult.

While the Court agreed with the Province that the 2010 signing of the Agreement did not trigger a duty to consult, it held that the decision to terminate or not terminate the Agreement – per clause 6 of the Agreement – had the potential to adversely impact the Petitioner's Aboriginal rights by virtue of the lack of an EAC requirement. Therefore, the Court found that the Province had a duty to consult once the terms of the Agreement began to impact the decision-making process for the Project and that it breached this duty by failing to adequately respond to requests for information and consultation by the Petitioners.

Where does the Project go from here?

The scope of the Agreement has been dramatically altered. Both the Province and the federal government have been put on notice that attempts to share the burden of ensuring regulatory compliance in areas of overlapping jurisdiction cannot be resolved through abdication of responsibility by either authority. The Province must now fully evaluate the Project and determine whether it should issue an EAC pursuant to s. 17(3) of the EAA.

However, the analysis does not end there. If the Province decides to issue an EAC, it must also consider whether or not to attach conditions to it. Back in December 2013, the Province recommended approving the Project subject to five conditions:

  1. Successful completion of the environmental review process;
  2. Implementation of world-leading marine oil-spill response, prevention, and recovery systems;
  3. Implementation of world-leading land oil-spill response, prevention, and recovery systems;
  4. Establishment of legal protections for Aboriginal and treaty rights, including opportunities to participate in and benefit from the Project; and
  5. A fair share of the Project's fiscal and economic benefits that reflects the level, degree, and nature of the risk borne by the Province, the environment, and taxpayers.

All but four of the above conditions were left out of the final draft of the formal approval released by the federal government. Therefore, the questions to be answered now become: Should the Province make an EAC subject to these conditions? And if yes, will these conditions raise the inter-jurisdictional immunity and paramountcy concerns discussed by the Court?

What are the Implications of this Decision

The Court's analysis and disposition that the Equivalency Agreement is invalid to the extent it does away with the requirement for a provincial Environmental Assessment Certificate, suggests that the decision could have adverse implications to those projects in BC that are awaiting approval under an Equivalency Agreement, including but not limited to the Trans Mountain Pipeline Expansion, projects proposed by Spectra Energy (formerly, Westcoast Energy Inc.) and Nova Gas Transmission's proposed natural gas pipeline from the Horn River Basin.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Charles W. Bois
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions