July 7, 2015

Duty to consult: Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development)


Fort Nelson First Nation (“FNFN”) sought judicial review of a failure of the BC Environmental Assessment Office (“BC-EAO”) to designate the proposed Komie North Mine, a sand and gravel pit in FNFN’s territory (the “Project”) as a designated reviewable project. The Project clearly exceeded excavation levels that triggered a review under the Reviewable Projects Regulation (the “Regulations”) of the Environmental Assessment Act. However, BC-EAO argued that its decision was reasonable since the amount of sand and gravel the proponent intends to sell (rather than excavate) was under the threshold that triggered a review under the Regulations. FNFN also argued that the Province failed to meet its constitutional obligation to consult and accommodate FNFN before it made its decision.

The BC Supreme Court held that the Province was required to consult with the FNFN before it determined the Project was not a reviewable project. The court also rejected the BC-EAO’s interpretation of the legislation as unreasonable. The Regulation clearly required an environmental assessment based on how much sand and gravel a proponent intends to excavate, rather than how much a proponent intends to sell. As a result, the court set aside the BC-EAO’s decision, and ordered the Province to meaningfully consult and accommodate FNFN.

Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 BCSC 1180

Lisa C. Fong, Michael Ng and Siddharth Akali