Canada: Site C Survives Another Legal Challenge

Last Updated: February 13 2017
Article by Robin Longe and Michael Manhas

Most Read Contributor in Canada, December 2017

On January 23 the Federal Court of Appeal dismissed an appeal by two First Nations relating to the federal government's approval of the Site C hydroelectric dam project under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). The court clarified the Governor in Council's (GIC) decision-making authority under CEAA 2012, finding that section 52(4) does not give the GIC the power to determine whether likely "significant adverse environmental effects" constitute an infringement of treaty rights when determining whether such effects are "justified in the circumstances."

This decision reiterates the courts' commitment to the consultation and accommodation process for projects that have expected impacts on lands subject to claims of rights and title by First Nations, and the importance of conducting good faith consultation and accommodation to help insulate a project from future challenges.


The appellants, the Prophet River First Nation and the West Moberly First Nations, are Treaty 8 First Nations. Treaty 8 covers 840,000 square kilometres spanning three provinces and one territory. Under the treaty, all beneficiaries are granted hunting, trapping and fishing rights within the treaty territory, while the Crown is granted the right to "take up" lands when needed for settlement, mining, lumbering, trading or other purposes.

The Site C project will involve the construction of the third dam and hydroelectric generating station on the Peace River, located in the area covered by Treaty 8. Previous hydroelectric projects have already flooded 70% of the Peace River Valley, and the Site C project will flood roughly another 55 square kilometres, half of the remaining Peace River Valley land base.

The environmental assessment process

The Site C project was subject to an environmental assessment (EA) under CEAA 2012. Once a project is reviewed, CEAA 2012 requires the minister of the environment to consider the EA to determine whether a proposed project will likely have significant adverse environmental effects. If so, section 52(4) requires the GIC to then determine whether the project is nevertheless "justified in the circumstances."

Because the Site C project was also subject to BC's Environmental Assessment Act, a joint review panel (JRP) conducted the EA of the project, which took three years, under both the federal and provincial regimes.

Aboriginal consultation, described at the "deep end" of the spectrum for the project, was integrated in the EA from the outset. The proponent and the Crown consulted 29 aboriginal groups potentially affected by the project, including the appellants. At each stage of the EA, the JRP invited discussion and proposals from potentially affected First Nations. However, the JRP's mandate was only to receive information on how the project may adversely affect asserted or established aboriginal and treaty rights, and not to consider whether the project constituted an infringement of treaty rights.

The JRP found that the project would likely cause significant adverse effects in the Treaty 8 area, including on fishing opportunities and practices, hunting and non-tenured trapping, and other traditional uses of the land, many of which could not be mitigated. Based on the JRP's report, the minister determined that the Site C project was likely to cause significant adverse environmental effects and established conditions for the project relating to the use of lands and resources for traditional purposes. Due to the significance of the environmental effects, the minister referred the matter to the GIC for its approval.

The GIC determined that the effects associated with the project were justified in the circumstances and approved the project. The GIC noted the Crown's "reasonable and responsive consultation process" which "provided...opportunity for dialogue" and "opportunities for the Aboriginal groups to review and comment on conditions." The concerns and interest of First Nations were "reasonably balanced with other societal interests," the GIC added.

Judicial review and appeal

The appellants unsuccessfully brought an application for judicial review of the GIC's decision, alleging its decision was unreasonable because it failed to determine whether the significant adverse environmental effects from the project constituted an infringement on their treaty rights and, if so, whether that infringement was justified. Notably, the appellants did not challenge the adequacy of the consultations undertaken. In dismissing the judicial review, the Federal Court found that the GIC was not required to consider whether the anticipated environmental effects amounted to an infringement of the appellants' treaty rights.

The Federal Court of Appeal upheld the lower court's finding, confirming that CEAA 2012 does not confer to the GIC the power to determine infringement of treaty rights because the legislation did not expressly or implicitly grant the GIC the power to decide questions of law. In the court's view, the GIC decision-making role is discretionary, not adjudicative, and is focused on the balancing of interests based on fact and policy. That role is inconsistent with determining the complex issues of law and fact required in an infringement analysis.

The court similarly found that judicial review is not the proper forum to determine whether treaty rights have been unjustifiably infringed because the summary nature of judicial review precluded the development of the full evidentiary record needed to assess infringement claims.

In reaching its conclusion, the court emphasized that the appellants' approach would unfavourably lead to a reversion from the Supreme Court of Canada's current consultation and accommodation framework developed in the Haida Nation and Taku River cases, to the prior approach found in R. v Sparrow, which required aboriginals to first prove the existence of a particular right. The court was clearly uninterested in weakening the Crown's duty to consult and to expand the use of the expensive and inefficient process provided in R. v Sparrow.

The court, however, parenthetically noted that an action for treaty infringement remained available in the event the Crown's "taking up of land" under the treaty renders the treaty right "meaningless," leaving open the door to a claim that the cumulative effect of the Crown's takings up over time amount to a de facto extinguishment of treaty rights. The court also made clear that its decision was made in the absence of a direct challenge to the adequacy of the consultation process, by which the GIC's decision could have been invalidated, though the court nonetheless implied it was satisfied with the consultation undertaken.

The court's decision reiterates the need for the Crown and project proponents to engage in constitutionally appropriate, good faith consultation and accommodation with affected First Nations. Although the decision at issue in this case was insulated by the strict legal powers delegated to the GIC by legislation, the court reiterated the commitment to consultation to achieve reconciliation and made clear that the adequacy of consultation could nevertheless have affected the validity of the GIC's order.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

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.

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