Canada: Death By A Thousand Cuts: Caribou Habitat And Crown Consultation

The Fort Nelson First Nation ("First Nation") has filed a judicial review of a British Columbia Oil and Gas Commission ("OGC") decision to approve a 39 kilometre gas pipeline and storage facility located in the Horn River Basin, citing an "inadequate, unlawful and wholly unacceptable approach to consultation". The First Nation has challenged the OGC's consultation process on the basis that the OGC refused to seriously consider and address its concerns regarding the health and abundance of the Maxhamish caribou herd and the ongoing disturbance to its habitat. The First Nation seeks to have the Court declare that the Crown failed to fulfill its legal and constitutional duty of consultation and set aside the approvals.  

The First Nation's Concerns

The First Nation seeks to protect its treaty right to hunt boreal caribou in an area known as the "Fortune Core". The First Nation asserts that the proposed pipeline would traverse an area where the Maxhamish boreal caribou herd frequent and would heavily impact its habitat. The First Nation's claims regarding the condition of the Maxhamish herd include:

  • a consistently decreasing population of caribou in the Maxhamish range;
  • a significant disturbance level to the Maxhamish range of 74% (well past the minimum accepted threshold of 35% disturbed habitat for achieving a self-sustaining population); and
  • a 3-times increase in the speed at which the caribou's predators (mainly wolves) can travel due to linear disturbances in the natural forest- such as roads, pipeline, and seismic lines.

The First Nation contends that the OGC did not adequately consult with it regarding the proposed project and the potential impact to the herd, despite the First Nation's extensive knowledge and connection with the caribou population in their territory.

Scope of the OGC's Consultation

The OGC is the provincial regulator responsible for ensuring the Crown's legal obligations to consult and accommodate are fulfilled with respect to oil and gas activities in British Columbia. The OGC opposes the relief sought by the First Nation, stating that it acted in good faith and maintained the honour of the Crown while fulfilling its obligations to consult and accommodate.

The OGC conducted its consultation with the First Nation in accordance with its Interim Consultation Procedures for Treaty 8 First Nations (the "Procedures"), which sets out the standard process and timing for the OGC's consultation activities.  Of note is that the Procedures do allow for a customized approach to the consultation process in appropriate circumstances.

Over the course of the application process, it appears that the OGC and the First Nation exchanged several pieces of correspondence outlining their respective positions on the scope and extent of the OGC's consultation obligations. The First Nation claims that the OGC limited the scope of the consultations to the proposed project and refused to discuss the provincial initiatives relating to the boreal caribou, the First Nation's third party assessment or interpretations of items such as linear density and caribou population health. 

In response, the OGC asserts that it referred the First Nation to the broader consultation process on the Implementation Plan for the Ongoing Management of Boreal Caribou and repeatedly requested meetings to discuss the project and develop a project-specific consultation process, but that the First Nation did not accept these offers. Upon its review of the materials and information available to it, the OGC concluded that the proposed project would not cause a material adverse effect on the boreal caribou's habitat or its ability to survive, and approved the project.

Implications of this Judicial Review

This case is one to watch. The issue at stake is a factual one, however it also raises the larger question of whether the OGC can adhere to its standard consultation procedures or whether, when a First Nation raises broader concerns of cumulative effects and habitat protection in the context of a specific application, it is incumbent on the OGC to respond to the full scope of issues raised.

Many will recall the British Columbia Court of Appeal's decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 where the Court found that the Crown had failed to meaningfully consult and accommodate the West Moberly First Nation's treaty right to hunt the Burnt Timber caribou herd. In that case, the Ministry of Energy, Mines and Petroleum Resources had authorized coal mining activities in an area of fragile caribou habitat. Specifically, the Court found that the historical context – meaning the status of the herd and condition of its habitat – was essential to a proper understanding of the seriousness of the potential impacts on the First Nation's treaty right to hunt. The Court suggested that the cumulative effects of development can become a situation of "death by a thousand cuts", making the potential impact of the next cut critical to an understanding of the potential impact to the First Nation's treaty rights.  

Given the pace of oil and gas development in northeast BC, the scope of the OGC's consultation process, and to what extent it must include the cumulative impact on a treaty right, is sure to become a key issue.

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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Sarah R. Levine
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