Canada: Government Of British Columbia Introduces Indigenous Consent Requirement For Major Projects

On November 5, 2018, the B.C. government introduced Bill 51 – 2018: Environmental Assessment Act (Bill 51), which looks to replace the province's current Environmental Assessment Act. Bill 51 proposes a dramatic shift in the project approval process in B.C. that, if passed, would create consent-based participation rights for Indigenous peoples.

BACKGROUND

On March 7, 2018, the B.C. government announced a revitalization of the B.C. environmental assessment (EA) process. As part of this announcement, the government indicated that one of its objectives was to advance reconciliation with Indigenous people, including contributing to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Following an initial engagement phase that included significant Indigenous consultation — the government released a discussion paper in June 2018.

Direct engagements with Indigenous groups and industry associations continued through the summer and included a public comment period from June 18 until July 30, 2018. In the fall, the government summarized the results of its engagement in a "What We Heard" report and outlined its direction in what it called an Intentions Paper.

Bill 51 is the current result of this process. The proposed legislation contemplates far-reaching changes that will dramatically shift the major project approval process in British Columbia.

PROPOSED INDIGENOUS INVOLVEMENT

The B.C. government has introduced what it is calling a "consent-based" EA model, which is intended to support reconciliation and the implementation of UNDRIP in B.C.

The primary Indigenous involvement components in the proposed EA process are:

  • An express requirement that the B.C. Environmental Assessment Office (EAO) will support reconciliation with Indigenous peoples, including the implementation of UNDRIP, when it carries out its statutory requirements.
  • The opportunity for an Indigenous group to apply to have a project that would not otherwise be assessed under the new EA process to be designated as a reviewable project. If the minister declines to make such a designation, the minister must provide reasons for that decision.
  • Indigenous participation will no longer be driven by strength of claim assessments. Instead, Bill 51 contemplates that Indigenous groups may formally apply to opt-in to the EA process as "participating Indigenous nations". However, the EAO may determine, after giving the Indigenous nation an opportunity to be heard, that there is no "reasonable possibility" the nation or its rights will be adversely affected by the proposed project. This is a low bar to meet and, if the Indigenous nation disagrees with this conclusion, it can go to a yet-to-be-defined dispute resolution process. In practice, most project assessments will involve multiple participating Indigenous nations.
  • A legal obligation to "seek to reach consensus" with participating Indigenous nations on key decisions during the EA process. Notably, while there is a definition of consensus in the Intentions Paper, there is no definition in Bill 51 itself. If consensus is not reached, this will again trigger the to-be defined dispute resolution process. It is unclear what role proponents will play in achieving this consensus or how conflicting positions among participating Indigenous nations about a project will be resolved.
  • A requirement to seek participating Indigenous nations' consent at two decision points:
  1. The "EA readiness stage": This is a decision on whether to exempt a project from the EA process, terminate an EA, require more information, or proceed to the next step in the EA process.
  2. Whether to grant an EA Certificate (e.g., project approval).

The EAO or ministers, as appropriate, must consider the Indigenous nations consent (or lack thereof) in making these decisions and are expressly required to address Indigenous consent in their reasons for these decisions. Except in limited circumstances where there is a treaty or agreement with government that specifically requires Indigenous consent, the requirement is not absolute and the EAO or ministers can proceed without consent.

  • The requirement to consider and protect the confidentiality of Indigenous knowledge.
  • The ability to enter into agreements with participating Indigenous nations on integrating Indigenous laws, customs and interests in the EA process and for an Indigenous nation to conduct all or part of an assessment.
  • Requirements for proponents to contribute to the costs incurred by participating Indigenous nations.
  • The entitlement for a decision-maker to consider any "arrangements" reached with participating Indigenous nations in relation to the potential effects of a project, raising the spectre of commercial agreements between proponents and Indigenous groups forming part of the assessment process.

WHAT'S NEXT?

Bill 51 still needs to go through the remainder of the B.C. legislative process. If Bill 51 becomes law, the government has indicated that supporting regulations will be developed, engaged on, and refined between late fall 2018 and spring 2019 and that the new EA process will come into force in late 2019.

CONCLUSION

If passed, Bill 51 would make significant changes to the participation of Indigenous people in the B.C. EA process.

While it has the laudable goal of supporting reconciliation with Indigenous groups, the proposed changes are sweeping and untested. At a time when regulatory processes across Canada are constantly challenged for failing to meet the Crown's constitutional obligations to Indigenous peoples, it is notable that the existing B.C. EA regime has been repeatedly upheld by the courts, including where "deep consultation" with Indigenous people is required.

Bill 51 provides a further example of how governments in Canada may seek to implement UNDRIP, in particular the concept of "free, prior and informed consent". We have previously expressed our concerns about the implementation of UNDRIP in the absence of defining what this means. Please see our June 2018 Blakes Bulletin: Bill Backing UNDRIP Heads to Senate, Moves One Step Closer to Becoming Law in Canada for more information. As noted, there are widely divergent views on the meaning of a number of key provisions of UNDRIP. Leaving these undefined simply means that they will eventually have to be interpreted by the courts, an approach that will create uncertainty that does not exist under the current EA regime and ultimately litigation until these requirements are defined.

Ironically, and despite the rhetoric, the existing EA process more often than not achieves consensus and consent, by leading proponents and Indigenous groups to negotiated agreements. Casting this process aside in favour of wholly new and complex standards may be a solution in search of a problem. It is one thing to attempt to achieve consent as a norm of behaviour, but imposing it as an undefined legal requirement necessarily changes the nature of this exercise, and introduces new potential legal challenges. It is far from clear that this will lead to better outcomes and decision-making on projects or serve the interests of any participants, whether Indigenous or non-Indigenous.

For further information, please contact any member of our Aboriginal Law group.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2018 Blake, Cassels & Graydon LLP.

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 Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions