Canada: Case Comment: Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34

On January 13, 2016, the Coastal First Nations, an alliance of eight First Nations on British Columbia's North and Central Coast and Haida Gwaii, received a favourable decision from the British Columbia Supreme Court in Coastal First Nations v. British Columbia (Environment). At issue was the role of British Columbia in the environmental assessment process for Enbridge's Northern Gateway Pipeline Project (the "Project"). The court struck down a provision in an Equivalency Agreement between the British Columbia Environmental Assessment Office and the National Energy Board that permitted British Columbia to abdicate its ultimate decision-making authority to determine whether to approve the Project after an environmental assessment. This decision is significant in light of the numerous proposed interprovincial and transcontinental oil and gas pipelines, including TransCanada's Energy East, and other major projects requiring both federal and provincial approval. For these projects, the court has now cautioned provincial governments against giving up involvement in the corresponding review and approval processes. Additionally, the court has reminded provincial governments that strategic high level decisions are subject to the constitutional obligation to meaningfully consult and accommodate First Nations.

Background

The Equivalency Agreement sets a framework for a joint federal-provincial environmental assessment process and applies to projects that require approval under both the British Columbia Environmental Assessment Act ("EAA") and the National Energy Board Act. Enbridge's conditionally-approved Northern Gateway Pipeline, located on "purportedly provincial Crown lands," is the first Project that the Equivalency Agreement applies to. Notwithstanding the joint federal-provincial review, the Project requires approximately sixty permits, licences and authorizations from British Columbia. For reviewable projects, these types of operational approvals cannot be issued until an Environmental Assessment Certificate ("EAC") is obtained and a project meets the criteria set out in the provincial statutory framework.

Coastal First Nations challenged section 3 of the Equivalency Agreement, which removed the requirement to obtain an EAC, on two grounds. First, Coastal First Nations argued that while British Columbia may enter into the Equivalency Agreement, it must retain its decision-making powers and responsibilities under its own provincial environmental assessment review and approval process. Second, Coastal First Nations asserted that the Minister of Environment was required to consult affected First Nations before entering into the Equivalency Agreement as well as when deciding not to terminate the Equivalency Agreement, a necessary step under the Agreement in order to require that a decision on the EAC be made pursuant to section 17 of the EAA. The court decided in favour of Coastal First Nations on both grounds.

In finding that British Columbia acted inconsistently with both its statutory duties and constitutional obligations, the court issued the following declarations:

  1. The Equivalency Agreement is invalid and is set aside to the extent it attempts to remove the need for British Columbia to carry out its own environmental assessment for the Project.
  2. Ministers are required to exercise section 17 authority under the EAA in relation to the Project.
  3. British Columbia's participation in the environmental assessment process for the Project was not in keeping with the honour of the Crown. In particular, British Columbia failed to fulfill its consultation and accommodation obligations that it owed to Coastal First Nations when it made a decision, pursuant to the Equivalency Agreement, that had the potential to adversely affect constitutionally-protected Aboriginal rights and interests.
  4. British Columbia is required to consult with the Gitga'at First Nation about the potential impacts of the Project on areas of provincial jurisdiction and how those impacts may affect the Gitga'at First Nation's Aboriginal rights.

In making these declarations, the court was required to determine (1) whether the EAA applies to interprovincial pipelines; (2) whether the Minister could abdicate its powers and responsibilities under the EAA; and (3) whether the Crown failed in its constitutional duty to consult First Nations.

Does the EAA apply to Interprovincial Pipelines?

Northern Gateway Pipelines took the position that section 17 of the EAA as it applies to interprovincial pipelines is an unconstitutional exercise of provincial power. The court concluded that regulation of the environmental impacts of the Project is not within the exclusive jurisdiction of the federal government and thus the EAA may apply to interprovincial pipelines. Importantly, the court observed that prohibiting provincial environmental regulation over the Project would severely limit British Columbia's ability to protect the social, cultural, and economic interests in its lands and waters. Indeed the court suggested that establishing provincial conditions for the Project, over and above federal conditions and imposed through an EAC, would "fall squarely in line with the purpose of federal environmental protection legislation governing the Project." However, the court accepted that constitutional concerns could arise if British Columbia imposed conditions on the Project under the EAA but that such a determination could not be made unless and until specific conditions are imposed.

Can the Minister Abdicate its Powers and Responsibilities under the EAA?

Coastal First Nations asserted that British Columbia must maintain its authority to make an ultimate decision whether to issue an EAC approving a Project with or without conditions and thus asked the court to find the Equivalency Agreement invalid to the extent that it permitted British Columbia to abdicate its responsibilities. The court agreed with Coastal First Nations and dismissed British Columbia's argument that it no longer had any authority to approve, refuse or issue conditions in accordance with s. 17 of the EAA unless either party terminates the Equivalency Agreement.

The court emphasized that British Columbia has "unique objectives, political and social goals, and legal obligations"when it comes to protecting the environment. By giving up the authority under section 17 to review all projects to which the Equivalency Agreement applies, British Columbia also lost the ability to ensure that those projects meet the objectives of the EAA. The court determined that the legislature could not have intended such an absurd result. While British Columbia can partner with the federal government to avoid duplication of environmental assessments, it must still review the results of such assessments and decide whether and how to approve projects that fall under its jurisdiction.  

Did the Crown fail to Act in Accordance with the Honour of the Crown?

After finding that the Equivalency Agreement invalidly removed the need for an EAC, the court turned to Coastal First Nations' claim that the Crown breached its duty to consult. Coastal First Nations claimed that the duty to consult arose both prior to entering into the Agreement and at the time that British Columbia decided not to terminate the Agreement so that an EAC could be issued. Again, the court found in favour of Coastal First Nations on this issue. While the court determined that British Columbia was entitled to enter into the Agreement without consultation, it held that the Province failed to act in accordance with the honour of the Crown before deciding not to terminate the agreement.

The court acknowledged that decisions made pursuant to the Agreement that have the potential to adversely impact Aboriginal rights and interests do indeed trigger the Crown's duty to consult and accommodate. Important to the court's holding was the fact that British Columbia was aware of the concerns of First Nations, which were consistent with the concerns expressed by British Columbia during the Joint Review Panel regarding the inadequacy of NGP's spill response.

The court rejected British Columbia's assertion that it was not required to engage in meaningful consultation with First Nations in this instance because of its own initiatives to address the spill response flaws. The court reminded British Columbia not to take a "paternalistic" approach to consultation:

Consultation . . . entails early and meaningful dialogue with First Nations whenever government has in its power the ability to adversely affect the exercise of Aboriginal rights. Consultation does not mean explaining, however fulsome, however respectfully, what actions the government is going to take that may or may not ameliorate potential adverse effects. Such a means of dealing with an admittedly difficult issue looks very like "we know best and have your best interests at heart". First Nations, based on past experience, quite rightly are distrustful and even offended at such an approach.

The court also noted that by failing to terminate the agreement, the Province had given up its ability to accommodate affected First Nations by imposing conditions on the Project. The court found that without retaining its section 17 authority, British Columbia could do no more than ask the federal government or Enbridge to protect First Nation's rights and interests. As the duty to consult is rooted in the honour of the Crown at both levels, the Provincial Crown is required to act honourably and in good faith in all of its dealings. This means that consultation must be meaningful and requires that the Crown decision-maker retain its ability to make decisions, accommodate First Nation concerns and effect compromise. Clearly, British Columbia was not in a position to meaningfully consult Coastal First Nations under the Equivalency Agreement.

What are the Implications of this Decision?

The court's decision as it now stands has implications both for Enbridge's Northern Gateway Pipeline Project and implications that extend to other projects subject to the Agreement.

  • The court made clear that its decision in no way purports to tell the Province what to do regarding the Project. The court firmly stated that the Province retains ultimate discretion under section 17 to issue an EAC with or without conditions. In so doing, the court presumably wished to highlight that it was not taking a position on the merits of the Project or the environmental concerns associated with it.
  • Provinces are required to maintain an ability to be meaningfully involved in the review and approval of projects. Participating as an intervener is not sufficient and will only lead to increased uncertainty for companies seeking approval of interprovincial, transcontinental or other major projects in Canada requiring both provincial and federal approval.
  • Meaningful consultation necessarily means being able to accomplish meaningful accommodation. This means retaining the authority to impose conditions over and above those imposed by the federal government.
  • Provinces cannot rely on Canada to discharge its constitutional duties of consultation and accommodation in circumstances of jurisdictional overlap.
  • The duty to consult will be triggered even in cases where there are no immediate impacts. The potential for adverse impacts is sufficient.
  • However, the duty to consult is not triggered when a province enters into agreements, like the Equivalency Agreement, because at that point, the connection between the agreement and possible adverse effects on Aboriginal rights is too weak and attenuated.

Moving forward, it will be important to keep an eye on whether or not British Columbia issues an EAC for the Project with or without conditions.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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