January 24, 2016

Duty to consult: Environmental Appeal Board Decision No. 2012-WAT-013(c) (Fort Nation First Nation)


The Fort Nelson First Nation appealed a decision of the BC Natural Resources Ministry to grant Nexen Inc. (“Nexen”) a long-term water license under the Water Act. The water license allowed Nexen to divert millions of cubic meters of water for storage and industrial use in fracking.

The BC Environmental Appeal Board granted the appeal and canceled Nexen’s water license for the Tsea River Watershed area.

The Board cited two main reasons for reversing the decision to grant the water license. First, the scientific evidence supporting the application for the water license was fundamentally flawed. Many of the inferences made about the state of the river were not accurate, and there was a concern about the reliability of the North East Water Tool used to estimate hydraulic characteristics at points of interest. Second, the Province failed to consult with the First Nation in good faith. In particular, the Province’s internal correspondence demonstrated it intended to issue the water license to Nexen regardless of the lack of specific information about treaty rights, and future meetings with the Nation to discuss their concerns.  For example, internal Provincial emails indicated that the Province was responsive to meeting requests from the Nation, but stated that any meeting would not produce any change in its decision, and that meeting with the Nation would not create any delay in granting the water license.

Environmental Appeal Board Decision No. 2012-WAT-013(c) (In the matter of an appeal under section 92 of the Water Act, RSBC 1996, c 483, between: Fort Nelson First Nation, and the Assistant Regional Water Manager, Nexen Inc., and EOG Resources Canada Inc., Devon Canada Corporation)

Lisa C. Fong, Michael Ng, and Siddharth Akali