Indigenous governments and environmental protection: a lost opportunity for the courts at the crude oil reference (2019 BCCA 181)

On May 24, 2019, the BC Court of Appeal released a much-anticipated decision in the Reference re: Environmental Management Act (British Columbia), 2019 BCCA 181. BC asked the Court of Appeal to address BC’s constitutional authority to amend the Environmental Management Act and impose conditions on the flow of “heavy oil” in the province. Unfortunately for the province, the Court of Appeal found against BC on the first of three issues, namely if BC’s proposed amendments were environmental protection laws within BC’s constitutional jurisdiction. In a unanimous 5-0 decision, the Court determined that the “pith and substance” (or “dominant purpose”) of the proposed amendments was to place conditions on, and if necessary, prohibit, the carriage of heavy oil via federal projects,and in particular the proposed Trans Mountain pipeline expansion project. Since the federal government has sole constitutional authority over the construction and operation of interprovincial “works and undertakings”, including interprovincial pipelines, the court opined that the proposed amendments would not valid. British Columbia has since appealed to the Supreme Court of Canada.

During the reference hearing, the court heard from a wide range of Indigenous intervenors, all of whom, while differing in their support for the proposed amendments, were alike in their asserting indigenous sovereignty. Unfortunately, the Court’s final decision was strikingly bare of any discussion about the arguments of the Indigenous intervenors.

Heiltsuk First Nation, for whom we were honoured to act, submitted that Indigenous governments are part of Canada’s evolving system of cooperative federalism. Heiltsuk reiterated the importance of all levels of government, including indigenous governments, having the ability to enact environmental protections. For Heiltsuk, these were timely arguments – in 2016, Heiltsuk experienced, first hand, the devastating effects of gaps in Canada’s oil spill response and compensation regime, when the grounding of an articulated tug-barge in Heiltsuk traditional territory resulted in a catastrophic fuel spill, leading to inadequate spill response, and an inability of Canada and BC to force the polluter to conduct a robust environmental impact assessment in the wake of the spill.

Court references provide occasion for the court to opine on key issues that shape the very constitutional foundation of Canada’s legal framework. In this Reference, the court could have addressed fundamental questions about the role of indigenous governmental authority under Canada’s constitution. By failing to engage with the submissions of the Indigenous intervenors, the court missed a valuable opportunity to speak about the constitutional status of Indigenous governments that have existed for thousands of years, and their role in protecting the environment.

The British Columbia Court of Appeal decision is available here. On June 14, 2019, the Attorney General of British Columbia filed a Notice of Appeal to the Supreme Court of Canada.

Lisa C. Fong and Michael Ng