Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682
In this decision, the British Columbia Supreme Court held that the B.C. environmental assessment process is not a forum to determine whether Aboriginal or treaty rights will be infringed.
Two First Nations, which were signatories to Treaty 8, sought an order quashing an Environmental Assessment Certificate issued to BC Hydro in relation to plans to construct a dam, power house and related infrastructure on the Peace River at what is known as Site C. The First Nations asserted that the Site C project infringed their treaty rights, that the decision to issue the certificate was unreasonable, and that the Ministers issuing the certificate were biased.
The certificate was issued to BC Hydro with 77 conditions after an extensive environmental assessment process and consultations.
In refusing to quash the certificate, the Court held that it was not an error for the Ministers to issue the certificate without deciding whether the project infringed Treaty 8 rights. The Ministers' decision was political and policy-based, not rights-based, and the procedures set out in the Environmental Assessment Act are inadequate for rights-based determinations. The Court also rejected the arguments that the decision to issue the permit was unreasonable and that the Ministers were biased in favour of the project. The decision is under appeal.
For more on the Prophet River decision and other decisions related to Site C, see McCarthy Tétrault LLP's Canadian Energy Perspectives blog post entitled " BC Hydro Site C Litigation Update – Appeals Pending."
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