Canada: Judicial Blueprint For Aboriginal Consultation

Although many major projects have failed to progress due to unsuccessful Aboriginal consultation efforts, recent court cases on the Site C dam in BC have at last provided clear guidance for carrying out a successful Aboriginal consultation process.

Among the (many) struggles endured by project developers in Canada, one of the most significant has been to design a consultation process with Aboriginal peoples that can pass muster with Canadian courts. For almost a generation, the courts have offered only the most general, abstract and ethereal guidance.

Recently however, various courts have reviewed the highly controversial and visible Site C consultation process and after detailed analysis, have universally declared the process followed in that case to be sufficient.1 Although these decisions have been at the trial and appeal level – the Supreme Court of Canada has just reviewed the record and declined to over-rule the lower courts.

This post is not specifically a case comment. The Site C cases raised numerous legal issues which we purposely leave to one side. This post focusses solely on the current judicial view of the appropriate mechanics to be followed in a successful consultation process.

Background

Site C is a dam in northern BC proposed by BC Hydro, a BC crown corporation. If constructed, Site C would flood the Peace River Valley for 83 km between Fort St. John and the Peace Canyon Dam. It would also involve the construction and operation of an 1100 MW hydro-electric generating facility, the realignment of four stretches of Highway 29 where it dips into the Peace River Valley and two 77 km transmission lines running from Site C to the switching yard at Peace Canyon Dam.

Site C would be developed in the heart of the traditional territories of a number of Treaty 8 First Nations and would affect, in total, approximately 29 First Nations to varying degrees.2

Both the federal and provincial governments had jurisdiction over material elements of Site C and both had regulations in place requiring an environmental assessment by the Canadian Environmental Assessment Agency (CEAA) at the federal level, and by the BC Environmental Assessment Office (BCEAO) at the provincial level. To ensure coordination, the federal and provincial governments entered into a Joint Agreement to appoint a Joint Review Panel to oversee the activities of CEAA and the BCEAO; to conduct hearings and to assess the evidence and make recommendations to the two levels of government.

Several of the most affected Treaty 8 First Nations – the West Moberley First Nation and the Prophet River First Nation – did not accept the development of Site C on any terms and declined to enter into benefit agreements or other arrangements with BC Hydro. Despite their opposition, the federal and provincial governments ultimately approved Site C, subject to numerous conditions. The West Moberley and Prophet River First Nations sued to overturn the approvals and attempted to stop development of the project. Among the grounds cited to challenge the Site C approval process was the adequacy of the consultation process.

Adequacy of the Consultation Process

When evaluating the adequacy of a consultation process, the courts have articulated a general test requiring good faith efforts by the Crown to meaningfully consult and to substantially address Aboriginal concerns raised during the consultation process. Among the criteria used by the courts to assess the adequacy of consultation are the following: 3

  • thoroughness of the consultation process, starting as early as feasible in the project approval process;
  • means and mechanisms to provide an organized and sustained system for consulting Aboriginal peoples;
  • sufficient funding to allow Aboriginal peoples to meaningfully assemble and/or challenge evidence; and
  • accommodation measures to avoid or mitigate any loss, cost or damage from a proposed project to Aboriginal interests and to provide compensation where avoidance or mitigation are not possible.

In the case of Site C, the factual record developed by the BC Supreme Court made the following key findings in supporting the adequacy of the consultation process: 4

  • the Site C consultation process was found to be thorough, conducted over 7 years, involving 177 meetings, and running from the design of BC Hydro's initial Project Description to the issuance of final Environmental Assessment Certificates;
  • participation of Aboriginal groups in working groups and/or other organized consultative bodies, providing such groups with the meaningful opportunity to comment on all key documents, the appointment of the Joint Review Panel, the terms of reference for the Joint Review Panel process, the Environmental Impact Statement filed by BC Hydro, the Joint Review Panel Report and any referrals to the relevant Ministers;
  • capacity funding over the assessment period in the range of $5.8 million to the most affected Treaty 8 Aboriginal peoples;
  • accommodation measures designed to avoid, mitigate and/or compensate for loss, costs, or damage to affected Aboriginal peoples, including:
    • the imposition of conditions to the Environmental Assessment Certificate or equivalent issued to BC Hydro regarding fisheries and aquatic preservation, wildlife management; access to the Peace River Valley area and the preservation of various cultural activities and land uses of significance to Aboriginal peoples;
    • measures by BC Hydro to redesign the Site C dam and related facilities to minimize its footprint and its disruption to Aboriginal cultural activities and land uses;
    • benefits agreements addressing Aboriginal contracting, employment, training, cultural, heritage and similar benefits and provisions; and
    • compensation. 5

Based on this record, the courts had to decide whether this consultation process and the proposed accommodation measures were adequate. Unanimously, they did.

In identifying the key features of a reasonable and legally compliant consultation process, the BC Supreme Court noted:

Petitioners were provided a meaningful opportunity to participate in the environmental assessment process. They were at the Working Group that reviewed the Terms of Reference and the EIS. They participated in the Panel review process. Government and BC Hydro provided the petitioners with funding to assist them in participating in the assessment process. Finally, their position was clearly and succinctly put before the ministers in their final letters.6

The BC Supreme Court concluded that the governments made a good faith effort to understand the petitioners' position on the issues and made reasonable efforts to understand and address the petitioner's concerns.

Consultation Standard: Reasonable, not Perfect

The various courts reviewing Site C concluded that the appropriate standard for determining the adequacy of a consultation process was whether it was reasonable.

The BC Court of Appeal noted that in designing and carrying out a consultation process:

the Crown is not to be held to a standard of perfection in fulfilling its duty to consult...Sometimes in attempting to fulfill the duty, there can be omissions, misunderstandings, accidents and mistakes...In determining whether the duty to consult has been fulfilled, perfect satisfaction is not required, just reasonable satisfaction. 7

This finding is useful – consultation that is undertaken in a genuine and committed fashion, carried out in good faith and adhering to current best practices is highly likely to be sustained under this reasonableness standard. Many – maybe all or virtually all – consultation processes have flaws, at least to some extent, because these are dynamic and complex undertakings. Consultation is often undertaken in tight timeframes, with both sides working under enormous pressure to advocate and protect their respective interests, while adhering to the goals of the consultation process. In such circumstances, "perfect" consultation is extremely difficult, if not impossible. On the other hand, reasonable, good faith efforts at consultation can increasingly be expected as the proponent community and the regulators collectively grow more experienced with consultation procedures and initiatives.

Consultation is Required: Consent is Not

Much of the public dialogue about project approvals and Aboriginal peoples has recently centered on whether Aboriginal consent is required – "free, prior and informed consent", in the words of the UN Declaration on the Rights of Indigenous Peoples.

However, a long line of Canadian cases - both before the Site C cases and since – have made it clear that projects can be approved and governmental decisions can be taken even if all of the potentially affected Aboriginal peoples do not consent8

In the case of Site C, after lengthy, arduous and likely even rancorous discussions, BC Hydro entered into benefit agreements. Consent of a sort was achieved with a number of affected Aboriginal peoples. In the case of the West Moberley and Prophet River Nations, however, no such agreements or arrangements were ever entered into and these two First Nations never consented in any form or fashion to Site C.

The courts in Site C couldn't have been clearer though: the Crown's obligation is to act in good faith to consult and, where necessary, to accommodate through avoidance, mitigation and/or compensation. It is devoutly to be wished that the end result of this consultation process would be consent – but if despite all reasonable, good faith efforts by the Crown, it cannot be obtained, then consent is not per se required.

Crucially, the BC Supreme Court concluded:

the courts stated that the consultation process does not require acceptance of the First Nation's position. What the jurisprudence establishes is that meaningful consultation requires a respectful consideration of the position put forward by an affected First Nation . . . 9

The BC Court of Appeal, quoting from the leading case of Haida Nation, also emphasized that the talisman for adequacy of consultation rests on making a reasonable good faith effort to consult and accommodate, not the fact of reaching a final agreement:

The focus is not on the outcome but on the process of consultation and accommodation. 10

The BC Court of Appeal made it clear that no party – including no Aboriginal group or people – has any veto over development:

The duty to consult and accommodate does not afford First Nations a 'veto' over proposed activity...here the appellants have not been open to any accommodation short of selecting an alternative to the project; such a position amounts to seeking a veto. 11

Conclusion

Site C is a major and high-profile energy project; the consultation process has been grueling and controversial. That process has been reviewed in detail and the various courts have unanimously found it complied with all applicable legal standards.

We await any formal clarification by governments in legislation or otherwise of the consultation and accommodation process generally. Pending that day – and that day may never come – the record in the Site C litigation at least offers a reasonably clear blueprint for a successful consultation and accommodation process.

Note: For those interested in a more detailed stage-by-stage breakdown of the Site C Consultation Process, we will shortly post "Detailed Judicial Blueprint for Aboriginal Consultation: The Case of Site C".


  Footnotes

1 The Site C case was heard in both federal and BC courts, both at the trial and appeal levels. The most detailed factual description and analysis was provided by the BC Supreme Court in Prophet River First Nation v. British Columbia 2015 BCSC 1682. Additional analysis and reasons for judgement were provided on appeal by the BC Court of Appeal: 2017 BCCA 58 and by the Federal Court in Prophet River First Nation v. Canada (Attorney General) 2015 FC 1030. The case before the Federal Court was appealed to the Federal Court of Appeal but the claim of inadequate consultation was not pursued on appeal: see 2017 FCA 15.

2 Further background about the impact of Site C on affected First Nations can be found in 2015 BCSC 1682 at paragraphs 7-14 and 53-63.

3 2015 BCSC 1682 at paragraph 168.

4 2015 BCSC 1682 Part III, Consultation History, at paragraphs 22-87. See also BC Court of Appeal at 2017 BCCA 58 at paragraph 11 and 41.

5 In the case of the West Moberley First Nation, whose reserve lands were roughly 75 km from Site C and only 15 km from proposed transmission lines, the compensation proposed consisted of 2500-3000 acres of fee simple Crown lands, lump sum payments of $3.5 million and an inflation-adjusted annuity yielding more than $20 million over 70 years. For the Prophet River First Nations, whose reserve lands were 240 km north of Site C, the proposed compensation was more modest; a financial contribution of $1 million and possible provincial land protection measures over designated Crown rangelands. See 2015 BCSC 1682 at paragraphs 83 and 84.

6 2015 BCSC 1682 at paragraph 168.

7 2017 BCCA 58 at paragraph 51. Citing in support: Gitxaala Nation v. Canada (Minister of Fisheries and Oceans) 2008 FCA 212 at paragraph 54.

8 For cases decided prior to Site C, see Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73; Taku Tlinget First Nation v. British Columbia (Project Assessment Director) 2004 SCC 74; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69; and Ktunaxa Nation v. British Columbia (Minister of Forests, Lands and National Resource Operations) 2015 BCCA 352. For one decided subsequently, see Chippewas of the Thames First Nation v. Enbridge Pipeline Inc. 2017 SCC 41.

9 2015 BCSC 1682 at paragraph 162.

10 2017 BCCA 58 at paragraph 65. The phrase was taken from the Supreme Court of Canada's judgement in Haida Nation, note 8, at paragraph 63.

11 2017 BCCA 58 at paragraph 65. See also Mikisew, note 8, at paragraph 66.

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