March 16, 2018

Failing to consult by limiting consultation issues: Fort Nelson First Nation v. BC, 2017 BCSC 2500


The Fort Nelson First Nation (“FNFN”) judicially reviewed the approval of two permits by the BC Oil and Gas Commission (the “Commission”) to allow a proponent to construct and operate a pipeline and storage facility in their traditional territory construct.

The British Columbia Supreme Court decided the consultation was inadequate because the Commission unilaterally limited the issues which could be addressed during the consultation: Fort Nelson First Nation v British Columbia (Oil and Gas Commission), [2017] BCJ No 227.

Background: FNFN have a treaty right to hunt caribou in their territory and had previously suspended caribou hunting due to concerns about sustainable harvesting levels. Additionally, the area in question, populated by Maxhamish caribou, is designated as an ungulate winter range for boreal caribou under s. 31 of the Environmental Protection and Management Regulation (the “EPMR”). This means that the area contains habitat necessary to meet the winter habitat requirements of boreal caribou.

Under s. 6 of the EPMR, if a proposed project is within an ungulate winter range, the Commission must analyze:

  1. whether the project will have a “material adverse effect on the ability of the wildlife habitat… to provide for the survival, within the ungulate winter range, of the ungulate species for which the ungulate winter range was established”; and
  2. “the time and manner of the oil and gas activities in relation to high priority wildlife, which includes boreal caribou.” [21]

The consultation process: The disputed consultation took place over a short period of five months, between January 17, 2017 and June 5, 2017. The Commission acknowledged its duty to consult, albeit at a low level. The consultation occurred as set out below.

  • On January 17, 2017, James Waterman, Manager and First Nation’s liaison for the Commission, referred the pipeline application to FNFN on behalf of the Commission.
  • On February 17, 2017, FNFN responded by stating their treaty rights were or potentially could be impacted by the project and identified a number of concerns that required consultation. These concerns included that the area was an important harvesting area with critical caribou habitat, there was a potential threat to the Maxhamish caribou, there were deficiencies in the proponent’s caribou management plan (supported by their own expert report), and the cumulative impact of the project on their treaty right.
  • On March 1, 2017, Mr. Waterman replied and set out a number of determinations the Commission had made, including that the project would not cause a material adverse effect on the ability of the wildlife habitat within the ungulate winter range to provide for the survival of caribou in the area. He noted that the Commission would not comment or discuss various issues and documents such as the FNFN’s expert report, the proponent’s caribou management plan or caribou population health. He set out specific topics for further discussion. Mr. Waterman reiterated this position in a letter of March 9, 2017.
  • On March 15, 2017, FNFN responded and stated the “unilateral imposition of what could and could not be discussed was an unacceptable and unlawful approach to consultation”. [50] Mr. Waterman replied to confirm the scope of discussion in the consultation process on March 22, 2017.
  • On April 3, 2017, FNFN replied that they could not understand how the Commission reached their conclusion on no material adverse effect without examining the current state of caribou in the area and existing disturbance.
  • On April 19, 2017, Mr. Waterman replied that the Commission had reviewed the proponent’s caribou management plan, the proposed pipeline details and available information on Maxhamish caribou in order to make the determination there would be no adverse effect. He also noted that consultation with FNFN “cannot positively affect their treaty rights to hunt caribou as the potential for the Project to further reduce [FNFN’s] ability to hunt caribou within the Maxhamish Range was relatively low.” [53] Mr. Waterman reiterated the limited scope of the consultation on May 1, 2017.
  • On May 4, 2017, FNFN wrote to the Commissioner to indicate its concern with how the Commission was approaching consultation.
  • On June 5, 2017, the Commissioner responded and referred FNFN back to Mr. Waterman. On that same day, Mr. Waterman wrote to FNFN and indicated that the Commission was closing consultation because the Commission had sufficient information from FNFN on their concerns and preferred decision.

The Court found that the Commission acted unreasonably in attempting to limit the consultation discussions and ultimately failed to meet its duty to consult; it failed to solicit and listen the FNFN’s concerns prior to issuing the permits. The Court found that the Commission determined there would be no material adverse effect from the outset and interpreted this to mean that the Commission was not willing to engage in consultation with FNFN. On the scope of the consultation, the Court confirmed that it might be necessary to consider the larger historical context and the cumulative impacts of a project in order to understand the seriousness of the impacts.

The cases raises an important issue for Indigenous communities to be aware of when engaging in consultation. The Crown must come to consultation with an open-mind, and dialogue in good faith about the issues that may impact Aboriginal rights and title. The Crown fails this obligation when it comes to consultation with a decision already made, e.g., about potential adverse impacts. In this case the pre-existing decision was evidenced by the Commission refusing to discuss specific issues. A more troublesome situation may, however, occur where the Crown invites submissions, but does not signal or have any intention of changing a pre-decided position.

Fort Nelson First Nation v British Columbia (Oil and Gas Commission), 2017 BCSC 2500, [2017] B.C.J. No 227

Lisa C. Fong and Kassie Seaby