Canada: B.C. Ministers Not Required To Determine Whether Energy Project Infringes Treaty Rights

Last Updated: February 22 2017
Article by Graham Ragan and Jordan Sewell

Case: Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58

On February 2, 2017, the British Columbia Court of Appeal released its Reasons for Judgment dismissing the appeal of Prophet River and West Moberly First Nations ("First Nations"), finding that a) ministers do not have the duty nor the expertise to assess whether a Crown project infringes treaty rights; and b) there was adequate consultation.

Factual Background and Procedural History

The British Columbia Hydro and Power Authority ("BC Hydro") is undertaking construction of a hydroelectric dam on Treaty 8 lands ("Project").1 In 1899, the First Nations entered into Treaty 8, which expressly granted hunting, trapping and fishing rights within the territory subject to "such regulations as may from time to time be made by the Government".2 Further, the Crown was entitled to take up tracts of land for "settlement, mining, lumbering, trading or other purposes".3 The First Nations oppose the Project and are concerned its environmental and ecological impact will defeat their treaty rights.4

In October 2014, the provincial ministers of Environment and Forests, Lands and Natural Resource Operations ("ministers") issued an Environmental Assessment Certificate ("Certificate") for the Project.5

The First Nations brought an application for judicial review of the issuance of the Certificate stating the ministers were bound to determine whether the Project would constitute an unjustified infringement of their treaty rights and that there had been inadequate consultation.6

Supreme Court of British Columbia Decision

The Supreme Court found the ministers do not have statutory powers necessary to determine the rights of interested parties in any proposed project. The ministers do not possess the requisite expertise nor can they compel testimony, hear legal submissions, or require the production of documents to answer the complex question of treaty right infringement. 7 The Supreme Court concluded the better course would be for the First Nations to commence an action for the breach of the treaty.8

The Supreme Court further held that the Crown made a good faith effort to consult and accommodate the First Nations' concerns.9

British Columbia Court of Appeal Decision

1. Ministers are not required to make a determination that the Project would infringe treaty rights

The First Nations argued that the ministers were obliged to exercise their discretion in issuing the Certificate in accordance with section 35 of the Constitution. However, the Court found that administrative statutory discretion can only be exercised in accordance with the authority afforded under the governing statute.10 Issues of treaty infringement are not determined by ministers of the Crown but by the courts.11 The Court held that what is important is that consultation and accommodation be adequate not that the Crown determine that to be the case.12

2. There was adequate consultation with the First Nations

The First Nations argued consultation was inadequate because alternatives to the Project were not considered. They sought an abandonment of the Project in its entirety.

The Court noted the First Nations participated in the all stages undertaken under the environmental assessment process.13 Over the course of seven years, BC Hydro met with the First Nations 177 times and funded their full participation in the assessment and consultation process leading to a number of substantial modifications to the Project.14 The Crown suggested a number of alternatives but none were agreeable to the First Nations. Further, the Project was determined to be the most cost effective option.15

The Court held that the abandonment proposal was tantamount to a veto. The Court reiterated that the Crown's duty of consultation and accommodation does not afford Aboriginal peoples veto rights over a proposed activity.16 An honest disagreement over whether a project should proceed does not mean the consultation process was inadequate.


1 Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58, at para. 2.

2 Ibid at para. 3.

3 Ibid.

4 Ibid at para. 4.

5 Ibid at para. 16.

6 Ibid at paras. 1 and 17.

7 Ibid at para. 23.

8 Ibid at para. 24.

9 Ibid at para. 39.

10 Ibid at para. 28.

11 Ibid at para. 29.

12 Ibid at para. 31.

13 Ibid at para. 7.

14 Ibid at paras. 41 and 53.

15 Ibid at paras. 59 and 60.

16 Ibid at para. 65.

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.

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