Two Prophet River decisions relating to the “Site C” dam project – one of the BC Supreme Court and one of the Federal Court – raise issues as to when an affected First Nation may prove an Aboriginal right, prove an infringement, and force the Crown to justify infringement.
The Prophet River case before the BC Supreme Court involved a decision of the provincial Ministers of Environment, and of Forests, Lands and Natural Resources Operations, to issue an Environmental Assessment Certificate under provincial legislation for a dam at “Site C” on the Peace River: Prophet River First Nation v. Minister of the Environment, 2015 BCSC 1682.
Petitioners, Prophet River and West Moberly First Nations, are signatories to Treaty 8. Treaty 8 guarantees a number of rights in exchange for the surrender of lands to the Crown, including rights to hunt, trap and fish throughout the treaty lands.
Although the review panel conducting the environmental assessment process could make recommendations which would minimize potential adverse effects of the project on asserted or established Aboriginal and treaty rights, it could not determine the nature and scope of Aboriginal rights, or whether the project infringes Treaty 8. The First Nations provided information to the review panel concerning the scope and nature of their Treaty 8 rights.
Following public hearings, the panel issued a report in which it concluded that the project would
- “significantly affect the current use of the land and resources for traditional purposes by Aboriginal peoples”;
- cause significant adverse effects on fish and fish habitat); and
- cause “significant adverse effects to other traditional uses of land for the First Nations.
Furthermore, the Environmental Assessment Office provided a Consultation Report which said, among other things, that if, as a result of a “taking up” by the Crown, a Treaty 8 First Nation no longer had a meaningful right to hunt, trap or fish in its traditional territory, this would result in an infringement of Treaty 8.
In addition to asserting that the Ministers had a duty to decide the question of infringement, which the court rejected, the First Nations also asserted, inter alia, that project approval unjustifiably infringed their treaty rights. The different positions taken by the parties is notable:
- The First Nations asserted that the court had to decide the question of infringement to determine if their constitutional rights were violated. 
- The respondents asserted (as characterized by the court) that “the proper function of judicial review is to determine whether the decision itself was reasonable and whether the decision makers had the jurisdiction to make the decision. They argue that a judicial review is not the appropriate forum to decide the issue of infringement….” 
The chambers judge held that, “ … the infringement issue as framed by the petitioners cannot be determined in this proceeding”, based on facts relevant to infringement extending “beyond the Project and the decision to issue the Certificate,” and in particular, the reduction in areas in which Treaty 8 First Nations can exercise their rights. The court held that “the record before me was inadequate to permit me to make the necessary findings of fact to determine whether there has been an infringement, and if so, whether it can be justified.”  Accordingly, the “proper” forum was an action commenced by notice of civil claim, as “[i]t is apparent that there is a considerable degree of conflict in the evidence which can only be resolved at trial.”  Notably, the court “did give consideration to referring the infringement issue to the trial list,” but decided “that would be inappropriate in this case” as that presented “no procedural advantage to the parties” over an action for infringement.” 
The same reasoning can be found in the action brought by the Prophet River and West Moberly First Nations in a concurrent judicial review to the Federal Court of the decision of the Governor in Council under the Canada Environmental Assessment Act, 2012: Prophet River First Nation v. Canada (Attorney General), 2015 FC 1030.
Like the BC Supreme Court, the Federal Court acknowledged findings of the Panel in its Report of significant adverse effects, including effects on fishing opportunities and practices of Treaty 8 First Nations; on hunting and non-tenured trapping for First Nations; and on traditional uses of land. 
Respecting the issue of infringement, however, the Federal Court concluded “that judicial review is not the appropriate course of action to determine whether Treaty No. 8 rights have been infringed.” 
These decisions of both the B.C. Supreme Court and the Federal Court are, however, puzzling, as complex factual issues are not beyond judicial review processes. In BC, chambers judges addressing judicial reviews have a power to transfer such proceedings to the trial list (BC Civil Rules 16-1(18) and 22-1(7)(d)). The Federal Court may also direct that applications for judicial review be treated as actions (Federal Courts Act, s. 18.4(2)).
1. Prophet River First Nation v. Minister of the Environment, 2015 BCSC 1682
2. Prophet River First Nation v. Canada (Attorney General), 2015 FC 1030
Lisa C. Fong and Michael Ng