Canada: Detailed Judicial Blueprint For Aboriginal Consultation: The Case Of Site C

In our recent post, Judicial Blueprint for Aboriginal Consultation, we reviewed the various judicial cases relating to the adequacy of Aboriginal Consultation regarding the Site C Dam in northern BC.

In that post, we noted that, for those with an interest in following the judicial analysis of the various components of Aboriginal consultation, we would post a more detailed and more focused piece – following the analysis of the Site C case as decided by the Supreme Court of British Columbia. The BC Supreme Court decision was the most detailed and fact-based of all the Site C cases in reviewing Aboriginal consultation. This piece is intended to be read in conjunction with the BC Supreme Court decision and all terms in this post have the same meanings as in that decision.

This post identifies the key stages in the project approval process for Site C and identifies the key consultation activities that took place at each stage and that were found legally relevant by the Court.

Stage

Dates

Milestones

Early Development

2004 – May 2011

· BC Hydro Feasibility Study

· Project Description

Prior to any formal environmental assessment process, Site C was studied and analyzed for almost seven years before a Project Description was filed by BC Hydro in May 2011.

The first half of that period, roughly from 2004 through to mid-2007, was devoted to BC Hydro's own Feasibility Study of Site C and its suitability to meet the utility's mandate to provide safe, reliable and clean power at low cost. The Feasibility Study was internal; however, the background to BC Hydro's evolving analysis of Site C during this period was generally made available to the public through required periodic filings with the British Columbia Utilities Commission. During this period there was no formal consultation process with Aboriginal groups – and the Court did not suggest that there should have been.

BC Hydro's formal consultation with affected Aboriginal groups started in the fall of 2007, following completion of the Feasibility Study and roughly at the same time as BC Hydro started work on a Project Description for Site C. These consultations included various Aboriginal groups which were members of Treaty 8 and likely to be most directly affected by the project. At that time BC Hydro also started to provide capacity funding to the key affected Aboriginal groups. The BC Supreme Court noted that BC Hydro ensured that Aboriginal groups had access to material information and had opportunities to meet with responsible officials throughout the environmental assessment process, including the period when the Project Description was prepared and prior to its filing.

Stage

Dates

Milestones

Pre-Panel

May 2011 - August 2013

· Joint Agreement

· Terms of Reference

· EIS Gidelines

· EIS Filing

In May 2011 BC Hydro filed its detailed Project Description with the Canadian and BC environmental assessment authorities – CEAA and the BCEAO, respectively. This filing effectively launched the environmental assessment process of Site C.

To facilitate consultation during this stage, CEAA and BCEAO established a Working Group comprised of Aboriginal groups, including those in Treaty 8, as well as representatives of federal, provincial, territorial and local government agencies. The Working Group reviewed and assisted in the settlement of the key documents at this stage of the environmental assessment – including the proposed Joint Agreement between the federal and BC governments to establish a Joint Review Panel to oversee the environmental assessment process. Other key documents at this stage included the Terms of Reference which defined the scope of the assessment process to be overseen by the Joint Review Panel.

The BC Supreme Court found that Aboriginal groups had the opportunity to review and to meaningfully comment on drafts of the Joint Agreement and the Terms of Reference during a roughly 5 month period starting in September 2011 and concluding with their execution in February 2012.

Following the signing of the Joint Agreement and the settlement of the Terms of Reference the next step was the preparation of EIS Guidelines which would determine the scope and coverage of the Environmental Impact Statement, or EIS, to be prepared and filed by BC Hydro.

To settle the EIS Guidelines, numerous meetings of the Working Group and other contacts with affected Aboriginal groups occurred over an 8 month period between January and September 2012. These were hardly pro forma affairs, as there was vigorous discussion over the scope of the EIS Guidelines in dealing with Treaty 8 rights; as well as the guidelines applicable to the need for, and alternatives to, Site C and the cumulative effects to be assessed in connection with the pre-existing dams on the Peace River.

Following approval of the EIS Guidelines in September 2012, BC Hydro prepared a draft EIS in the fall of 2012 and submitted it in January 2013.

Principally through the Working Group, Aboriginal groups had the opportunity to make comments on the draft EIS from January to April 2013; BC Hydro responded to those comments in May 2013 and the Working Group met to review the status of the EIS over a three day period in June 2013. After further dialogue and discussion, CEAA and the BCEAO accepted the EIS after requiring various amendments with respect to Aboriginal concerns about the treatment and analysis of the need for Site C, alternatives, current land use, cultural use of Site C land, wildlife issues, cumulative effects methodology and impacts on treaty rights.

Stage

Dates

Milestones

Panel

August 2013 – May 2014

· EIS Panel Review

· Public Hearings

· Panel Report

The Joint Review Panel itself was appointed by the governments of Canada and BC in August 2013 – and reviewed the EIS filed by BC Hydro for completeness and to ensure conformity with the EIS Guidelines. Comments and submissions were solicited from affected Aboriginal groups and were reviewed before the Panel declared the EIS was ready to proceed to public hearings.

Public hearings were scheduled for December 2013 through late January 2014 and various arrangements were made to help ensure effective Aboriginal participation. In advance of the public hearings the Panel helped identify issues where they particularly needed Aboriginal input. The hearings involved community hearings conducted in affected Aboriginal communities as well as a full-day session to receive evidence of the impact of Site C on treaty rights.

The BC Supreme Court noted that the Aboriginal groups participated actively in the public hearing process, filing materials and providing commentary on treaty rights, current use of the Site C lands, the cumulative effects of Site C and the other dams on the Peace River and the need for and alternatives to the project.

The Panel Report was released to the public in early May 2014 – and prior to its release affected Aboriginal groups were apprised of specific features relevant to their concerns and issues. In addition, the CEAA and the BCEAO consulted Aboriginal groups about the post-Panel process and their participation in the process leading to a referral to the federal and BC governments.

Stage

Dates

Milestones

Post-Panel

May 2014 – October 2014

· Consultation Report

· Accommodations Measures

· Referral Package

Immediately following the release of the Panel Report in May 2014, the CEAA and the BCEAO commenced consultation with Aboriginal groups on the content of the Panel Report, about the content of a draft of the Consultation Report and of the proposed Conditions that would form part of any Approval Certificate or equivalent.

Critical to the Referral Package were the consultation record and the proposed accommodations made, or at least proposed to, affected Aboriginals.

The consultation record was summarized in the Consultation Report which was circulated to Aboriginal groups soon after the Panel Report in May 2014. The Consultation Report was settled over a 4 month period of discussion. The Consultation Report contained a summary of procedural and substantive aspects of Crown-Aboriginal consultation over the course of the environmental assessment process. It included a description of the views of affected Aboriginal groups of the impact of Site C on their Aboriginal interests as well as methods to mitigate or address potential impacts.

One of the most critical pieces in the Referral Package to the Ministers was the proposed accommodation measures. These measures were contained in a variety of documents – in the proposed conditions for any Approval Certificate; in a number of modifications to the Site C project made or committed to by BC Hydro; in proposed Impact Benefit Agreements and in compensation arrangements where the impacts of Site C could not be avoided or substantially mitigated.

Obviously, not every case will be identical and there will necessarily be some variation in specific consultation processes. Yet the analysis of the BC Supreme Court was sufficiently detailed to serve as a useful blueprint for others in terms of the comprehensiveness and care that proponents should take in fashioning an Aboriginal consultation program. Some proponents may lack the resources and the strategic patience and/or orientation of BC Hydro to undertake such a comprehensive consultation exercise. If so, they can fashion their own process and they can proceed at their own risk. However, to do a major project in modern-day British Columbia with a high probability of meeting judicial standards for proper Aboriginal consultation will require the same standards, dedication and resources that BC Hydro and the relevant government authorities displayed in completing the Site C project review process.

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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