BC Court holds that Province cannot off-load its Duty to Consult for Environmental Approvals

The British Columbia Supreme Court released its decision in Coastal First Nations v. British Columbia (Environment)[1] yesterday. The petitioners, Coastal First Nations (“CFN”), an organization representing 9 B.C. First Nations, were successful in having a part of an agreement between British Columbia’s Environmental Assessment Office (the “EAO”) and the National Energy Board (the “NEB”) set aside. Specifically, the part of the Agreement removing the need for a provincial approval with respect to the Enbridge Northern Gateway Project. They were also successful in obtaining declarations that the Province has a duty to consult with them with respect to the project.

The decision is important as it recognizes the Provinces’ ability to impose additional environmental requirements on national projects that impact lands within their borders, and affirms the duty to consult First Nations when deciding whether or not to do so. The decision affirms that the environment is an area of shared jurisdiction between provincial and federal governments. As such, provinces must also fulfill their duty to consult with First Nations with respect to national projects that have impacts within their borders. This includes decisions on whether or not to take action. In cases where a Province has the discretion on whether or not to take environmental action, they may have a duty to consult First Nations in its exercise of this discretion.

Background

In 2008 and 2010 the EAO and the NEB entered into agreements that allowed for projects that required both provincial approval under the Environmental Assessment Act[2] (“EAA“) and federal approval under the National Energy Board Act [3] (“NEB Act“), to be subject to only one environmental assessment. In this case, the assessment was conducted by the NEB. Importantly, the agreements also provided that the projects could proceed without the provincial approval by the EAO provided for in the EAA.

During the course of the proceedings, the Province set out “Five Conditions” it stated were “minimum requirements that must be met before we will consider support for any heavy oil pipeline projects in our province.” The five conditions included stringent requirements for oil spill prevention and remediation measures as well as a condition that all legal requirements regarding Aboriginal and treaty rights are addressed. These concerns mirrored those expressed by First Nations.In December 2013, the Joint Review Panel issued its report (“JRP Report”) recommending approval of the Project, subject to a number of conditions which did not fully address the Province’s conditions above. On June 18, 2014 the project received federal approval on the same conditions in the JRP Report.

In the period between, CFN wrote two letters to the Province requesting that they be consulted with respect to the project, as it was apparent that theirs and the Province’s concerns had not been substantially addressed. At this time, it was open to the Province to terminate the Agreement and conduct its own environmental assessment, or impose its own conditions in issuing its own approval. It did neither. CFN brought a court challenge by way of judicial review seeking declarations that the agreement was invalid because it removed the need for provincial approval, as well as declarations that the Province had a duty to consult them with respect to any such approval.

The Decision

The Court found that the provisions of the EAA required the Province to issue provincial approvals and that the Agreements were invalid to the extent that they tried to remove this requirement. While it was open to the Province to defer to the federal environmental assessment, the terms of the EAA still required it to issue its own approval.

Further, the Court held that it was open to the Province, in issuing its own approvals, to impose more stringent environmental protections than those imposed federally, as long as they did not amount to frustrating the Project itself. This is based on the shared jurisdiction enjoyed between both provincial and federal governments over the environment and the doctrine of paramountcy (only where provincial/federal laws are both valid and applicable, and actually conflict with each other, do federal laws prevail.)

Finally, the Court held that when it became apparent that the concerns expressed by the petitioners, had not been substantially addressed by the JRP Report, they had a duty to consult with the First Nations over whether or not to terminate the Agreement and invoke its own decision-making process, which could have included its own environmental assessment. In doing so, the Court stated at paragraph 209:

…consultation/accommodation, as already described above, entails early and meaningful dialogue with First Nations whenever government has in its power the ability to adversely affect the exercise of Aboriginal rights. Consultation does not mean explaining, however fulsome, however respectfully, what actions the government is going to take that may or may not ameliorate potential adverse effects. Such a means of dealing with an admittedly difficult issue looks very like “we know best and have your best interests at heart”. First Nations, based on past experience, quite rightly are distrustful and even offended at such an approach. In any event, the Supreme Court of Canada has made abundantly clear, this is a paternalistic and now discredited means of attempting to give meaning to s. 35 rights. Consultation, to be meaningful, requires that affected First Nations be consulted as policy choices are developed on how to deal with potential adverse effects of government action or inaction… (emphasis added)

By giving up its ability to issue its own approval, the Province had effectively given up its ability to fulfill its constitutional duty to consult the First Nations, and the Court was very alive to this fact, finding that the Province had breached its duty by doing so.

Implications

While one should be wary of applying this case across the board without first examining the specific legislation applicable in each province, what is clear is that where a Province has discretion to issue its own environmental approvals, it must consult First Nations before deciding to do so or not. Further, the Court has found that consultation can be required on policy-level decisions about whether or not to even take action. This is important as some provinces, such as Ontario, have environmental legislation that vests a great deal of discretion in the minister on whether or not to act.

In cases, such as this one, where the Province knows that First Nation concerns are not being addressed by the federal approval process, it is incumbent on them to consult with them and quite possibly, invoke its own approval powers in order to ensure that First Nation concerns are accommodated. First Nations should ensure provincial governments consult with them with respect to federal projects that affect lands within the Province. If the federal process is inadequate in addressing their concerns, the Province may have an obligation to do so on their end.

By Jeremiah Raining Bird