In a unanimous decision, William v. British Columbia (Attorney General), 2019 BCCA 74, the British Columbia Court of Appeal affirmed that a proposed exploratory drilling program associated with the New Prosperity Mine could proceed after its approval by the Provincial government was found to be reasonable.
In dismissing the appeal, the Court commented that not accepting the position of an Indigenous group who holds an honest belief that a project should not proceed does not mean that the process of consultation is necessarily inadequate or that the Crown did not act honourably in reaching a decision.
Sometimes parties are unable to resolve their differences and work towards reconciliation because of fundamental disagreements. MORE
Expectation that courts will continue to place an increasing emphasis on the meaningfulness of consultation
Nik MacMillan@nikarthur /unsplash
In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.
In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.
Background on the TMX Project and the FCA Decision
The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE
VICTORIA, B.C.: OCTOBER 3, 2012-A pod of orcas swim near Pender Island in Victoria, B.C. October 3, 2012. (DARREN STONE, TIMES COLONIST). For City story by Judith Lavoie. Photograph By DARREN STONE, TIMES COLONIST
Half of the plans developed in Canada over the past 13 years for the recovery of threatened and endangered species might lack constitutionally required Indigenous consultation, according to a recent study by Carleton University researchers.
The researchers examined recovery strategies and management plans developed from 2006 to 2017 for species considered endangered, threatened and of special concern under the federal Species at Risk Act. Fifty-two per cent of the documents showed no evidence of Indigenous involvement, despite a legal requirement that governments consult with Indigenous Peoples.
Last year’s ruling by the Federal Court of Appeal is one example. The court reversed approval of the Trans Mountain pipeline expansion and ordered the federal government to re-do parts of its consultation with Indigenous Peoples, as well as have the National Energy Board consider the environmental impacts of increased tanker traffic off the coast resulting from the expanded pipeline. Before the ruling, it became clear that the government had green-lighted the project before its consultations with B.C.’s First Nations were complete.
Learning from that mistake, the B.C. government’s proposed environmental-assessment rules include, for the first time, specific requirements for consultation with First Nations. The proposed legislation refocuses the assessment process on Indigenous consent, early engagement, clear timelines and consideration of other issues related to climate change, pollution targets and the effects of projects on future generations. MORE
Source: ‘A Canadian Roadmap for Small Modular Reactors’ (NRCan, November 2018).
Without any adequate consultation with Canadians,
including First Nations, the Government of Canada is
unilaterally moving ahead with the development and
deployment of a whole new generation of nuclear reactors
all over Canada, especially in the north, directly impinging
on indigenous lands and rights.
These “small modular nuclear reactors” (SMNRs, or SMRs) will ALL generate post-fission radioactive wastes of all varieties: the high
level waste which is the irradiated nuclear fuel, and the
low & intermediate level wastes such as decommissioning
wastes (radioactive rubble from dismantling shut-down
reactors or — more likely — just grouting them in place.)
Meanwhile we have learned that the CNSC has been trying
to “rig the game” by getting the Canadian Government to
EXCLUDE most of these new reactors from the requirement
of having a FULL PANEL Environmental Assessment
Review. This has been done by CNSC lobbying government
officials behind closed doors without any public process,
debate, oversight or discussion. MORE
While the provincial government continues to roll back progress made on environmental protection, Ontarians have made it clear that the vast majority want decisive climate action.
Before the government passed the legislation to eliminate the cap-and-trade system, a consultation process received 11,000 comments with more than 99 per cent in support of putting a price on harmful emissions and maintaining the cap-and-trade system that supports investment and clean energy job creation. Thank you to those who submitted comments. It’s unacceptable for the government to scrap a program that has such overwhelming public support.
You have another chance to tell the government that its new weakened environment and climate plan fails to protect Ontarians from climate risk and sets us on a dangerous path of missed economic, energy and job-creation opportunities. TAKE ACTION!
NB: This consultation closes at 11:59 p.m. on January 28, 2019
Dzawada’enuxw First Nation community members, including matriarchs, elected and traditional leaders, and artists, were in Vancouver Thursday to announce their decision to sue the Government of Canada.
At a press conference on Jan. 10, 2018, Chief Willie Moon, traditional leader of the Dzwada’enuxw Nation said the ‘zero tolerance’ policy for fish farms in their waters comes from the direction of their matriarchs and membership. Photo by Michael Ruffolo
The First Nation, from Kingcome Inlet, B.C., filed a statement of claim in federal court in Vancouver on Thursday, arguing the federal government authorized licenses for fish farms operating in their waters, without their consultation or consent.
The claim says the fish farm operations pollute and poison wild salmon and infringe on the nation’s constitutionally protected rights. Their case is the first ever rights-based challenge to the federal licensing process that fish farm companies rely on to operate along the coast of B.C. SOURCE