Canada: B.C. Court Of Appeal Review Of The BC Environmental Assessment Process – Case Comment On Fort Nelson First Nation v. British Columbia


In Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, the B.C. Court of Appeal recently considered three issues involving the Reviewable Projects Regulation under B.C.'s Environmental Assessment Act:

  1. whether a letter from the Environmental Assessment Office ("EAO") confirming a proponent's interpretation of the Regulation is a judicially reviewable "decision";
  2. the interpretation of the threshold to trigger a provincial environmental assessment of a proposed sand and gravel pit; and
  3. whether the EAO's communication to the proponent could amount to "Crown conduct" that triggers a Crown duty to consult with potentially affected Aboriginal peoples.


  1. A confirmation by the EAO that a project does not meet the threshold for environmental assessment is not a decision subject to judicial review. Proponents remain responsible under the Act for knowing whether their project is reviewable.
  2. The EAO's interpretation of the threshold in the Regulation was reasonable — the term "production capacity" does not include waste material. This provides certainty to mining proponents about the actual threshold for environmental assessment.
  3. The interpretation of a regulation, standing alone, does not attract the Crown's duty to consult with Aboriginal peoples. This provides both the Crown and project proponents with certainty, and avoids the tension that would arise if legislation were interpreted and applied differently in different areas of the province as a result of Aboriginal consultation.

Background Facts

The case dealt with whether a proposed frac sand mine near Fort Nelson, B.C. was subject to provincial environmental assessment. The proponent wrote to the EAO providing a description of the project and the applicable environmental assessment trigger, and asked for the EAO's confirmation that the project was below the trigger threshold. That request specified that the production capacity of the mine would not exceed 240,000 tonnes per year, based on the proponent's assumption that this production capacity would not include any excavated material to be screened out as "waste."

Under the Regulation, a sand and gravel pit is a reviewable project if it is:

A new pit facility that will have a production capacity of:

  1. > 500 000 tonnes/year of excavated sand or gravel or both sand and gravel during at least one year of its operation, or
  2. over a period of < 4 years of operation, > 1 000 000 tonnes of excavated sand or gravel or both sand and gravel.

The EAO confirmed in a letter (the "Letter") the proponent's understanding that the project would not exceed the trigger threshold. It also confirmed that "[p]roduction capacity does not include that portion of the excavated material which would not be sold or used in the operation." However, the EAO was clear that "[p]roject proponents are responsible for making their own determination as to whether or not their proposed project falls within the thresholds set out in the [Regulation]."

The Fort Nelson First Nation (the "First Nation") disagreed – its position was that the project would exceed this threshold. It brought a petition for judicial review on the grounds that the EAO's interpretation was unreasonable arguing that all of the excavated material, including waste, should count towards the production capacity. The First Nation further argued that the EAO's interpretation of the provision and consequent confirmation that the project did not exceed the trigger threshold was Crown conduct that attracted the duty to consult. The First Nation further argued that consultation on these points had been inadequate.

Decision on Judicial Review

On judicial review, the Chambers judge found the EAO's interpretation unreasonable and set aside the Letter. He held that the threshold criteria are not limited to just the sand and gravel to be sold or used by the proponent. He sent the determination of whether the proposed mine met the threshold back to the EAO for reconsideration. The judge also found that the Crown had a legal duty to meaningfully consult with the First Nation in good faith and to seek to accommodate the First Nation's Aboriginal rights under Treaty 8 with respect to the subject matter of the Letter, and declared that the Crown had failed to fulfill this duty to consult. The Executive Director of the EAO and the project proponent appealed the decision.

The Appeal

Issue 1 – Was there a reviewable decision at all?

The Court of Appeal disposed of the appeal on a key preliminary issue: Was there anything subject to judicial review? The basic premise underlying the Chambers judge's decision was that the Letter was a decision capable of being reviewed by the courts.

On appeal, the Court held that "judicial review provides for relation to the exercise of a statutory power of decision conferred by an enactment to make a decision deciding or prescribing (a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or (b) the eligibility of a person to receive, or to continue to receive, a benefit or licence." The Court then went on to consider the scheme of the Act to determine whether the Letter was an exercise of a statutory power of decision.

Under the environmental assessment scheme in BC, the onus is on the proponent to determine whether a project is reviewable based on the criteria set out in the Regulation. The legislation contains no mandated decision by the EAO regarding whether a project is reviewable under the Regulation.

The Court of Appeal therefore concluded that the Letter was not a decision by a statutory delegate about whether the project was a reviewable project under the Regulation. The Letter was clear that it was not a "legal opinion" and confirmed that the onus for determining the need for an environmental assessment under the Regulation is on the proponent. The Court characterized the Letter as a "non-binding opinion" that was not subject to judicial review.

Issue 2 – What is the threshold for triggering environmental assessment?

Despite this preliminary conclusion, the Court went on to consider the merits of the appeal and interpreted the threshold necessary to trigger an environmental assessment for a sand and gravel mine.

The EAO's interpretation and application of the Regulation was upheld as reasonable. The EAO favoured, as was done in Friends of Davie Bay v. Province of British Columbia, 2012 BCCA 293, an interpretation which creates a "bright-line rule" that can be applied without undue speculation. Its view was that "production capacity" means the amount of "product" or "output" of something that has value added, and that it would be contrary to the ordinary meaning of production capacity to include "waste material" within its definition. The Court agreed that this interpretation is consistent with the scheme of the Act and the Regulation. In each of the other project types listed within Table 6 (Mine Projects) of the Regulation, production capacity is defined with respect to the output of the mine.

Importantly, the Court also concluded that the EAO's articulation of the threshold did not undermine the statutory scheme and objectives. Although the object of the Act is environmental protection, the overall scheme balances the need for environmental protection against encouraging economic development. The thresholds in the Regulation are designed to be easily applied by proponents, while other provisions in the Act function as safeguards, allowing projects to be designated as reviewable by the Minister or, in some circumstances, by the Executive Director. The Court concluded that the EAO's interpretation of the threshold criteria was reasonable.

Issue 3 – Was the Crown's duty to consult engaged?

Finally, the Court considered whether the Crown's duty to consult had been triggered. One of the key points of disagreement between the parties was whether the EAO's interpretation and application of the reviewability threshold constituted "Crown contemplated conduct". Both the proponent and the EAO argued that statutory interpretation is not "Crown conduct" capable of attracting a duty to consult. The First Nation argued that interpreting and applying the reviewability threshold was in fact "Crown contemplated conduct" and, in this case, the adverse impact was that the project would be subject to reduced environmental oversight, and would therefore expose the First Nation to greater potential impacts to its Aboriginal or Treaty rights.

The Court noted that the Supreme Court of Canada jurisprudence in this area is well-established. "A duty to consult arises when: (1) the Crown has knowledge (actual or constructive) of a potential Aboriginal claim or right; (2) the Crown contemplates conduct; and, (3) there is a potential that the contemplated conduct may adversely affect an Aboriginal claim or right." Crown contemplated conduct which may adversely impact on an Aboriginal claim or right is not confined to government exercises of statutory power, but can also extend to "strategic, higher level decisions."

The Court dismissed the First Nation's claim that a duty to consult was triggered by the EAO's interpretation. The Court grounded its finding in the tension that arises between the purpose of the duty to consult and the uniform nature of statutory interpretation. The Court held that regulations are rules of general application intended to apply universally throughout the Province. The "general objective behind statutory to provide a uniform answer to the meaning of an enactment that applies universally to all subject to it." (para. 124) Imposing a duty to consult over the interpretation of the Regulation may lead to different interpretations applying to different projects.

In so finding, the Court rejected the Chambers judge's finding that the interpretation of the Regulation was a "strategic, high-level decision" that could have potential adverse effects on Aboriginal or Treaty rights. The Court went on to state that the "Crown conduct" that may trigger the duty to consult in such a case is the Crown's contemplated issuance of the sought permit or other authorization.

In any event, the Court found that had the duty to consult been engaged, the EAO had fulfilled its duty.

With thanks to articling student Rochelle Collette for her assistance.

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.

Jennifer Nyland
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
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
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 (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

To Use 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.


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.


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