January 31, 2016

Province’s duty to consult where joint environmental assessment


In the recent Coastal First Nations case (handed down on January 13), the B.C. Supreme Court addressed the Province’s agreement to treat any NEB assessment as equivalent to an assessment under BC’s Environmental Assessment Act, S.B.C. 2002, c. 43, and not require an additional provincial assessment. The challenge to the agreement related to the review of the Northern Gateway pipeline project by a joint review panel (and by the Governor in Council) under the NEB Act. A judge on judicial review decided that even though the Province could enter into such an agreement, it could not give up its power to approve or disapprove of a project under section 17(3) of the B.C. statute. [183]

In case she was wrong, the reviewing judge went on to consider the Province’s duty to consult (assuming that the agreement was one where the Province could give up its power and duty to approve or disapprove projects). The court decided the Province had no duty to consult before entering the agreement. Any connection to possible adverse impacts was weak, especially given a power to terminate the agreement on 30 days’ notice. [204] The Province did however have a duty to consult about deciding not to end the agreement, once it knew that the conditions recommended by the JRP did not address the concerns of the First Nations. [205] The decision not to terminate the agreement involved the Province giving up a power to ensure and enforce conditions, and to accommodate the First Nations. [210]

The impact of this decision creates further hurdles for the Northern Gateway pipeline project, and the Kinder Morgan Trans-Mountain pipeline project. The Province has already taken the position on both of these projects that they do not meet the conditions set by the Province. therefore, First Nations should be able to except that the Province will not issue the certificates permits required for the pipeline to traverse their traditional territories.

Coastal First Nations v. British Columbia (Minister of Environment), 2016 BCSC 34

Lisa C. Fong and Michael Ng