There have been a number of recent cases relating to the scope of consultation that must occur with First Nations in respect of Crown decisions relating to major projects. However, there has been significantly less guidance as to the scope of consultation required with the general public under statutorily mandated consultation processes.
Two recent B.C. Court of Appeal ("BCCA") decisions (R.K. Heli-Skiing Panorama Inc. v. Jumbo Glacier Resort Project 2007 BCCA 9 and Do Rav Right Coalition v. Richmond/ Airport/ Vancouver Transit Line by R.A.V. Project Management Ltd. 2006 BCCA 571) provide some useful guidance in this regard. Both cases involve projects subject to review by the British Columbia Environmental Assessment Office (the "EAO") under the Environmental Assessment Act (British Columbia) (the "Act"). However, these cases explore principles that likely apply to any statutorily mandated public consultation process relating to environmental approvals.
These cases demonstrate a willingness of the courts to uphold consultation processes that, while not perfect, reasonably seek to collect and consider the views of persons affected by proposed decisions. In assessing a particular consultation process, the courts will apply a flexible approach whereby the process is measured by whether it is reasonable having regard to the circumstances. Perfection is not required.
More specifically, the BCCA confirmed that:
- Establishing the existence of "legitimate expectations" in respect of a consultation process beyond those that are directly created by the applicable statutory regime is an onerous burden.
- Where a breach of "procedural fairness" has occurred during a consultation process, the responsible agency will not necessarily be required to start the consultation process over from "square one." Rather, remedial actions such as sharing of further information or additional consultation on discrete issues can cure deficiencies in a consultation process.
- The ultimate standard for a public consultation processes is relatively flexible, focussing on whether potentially affected persons have had an opportunity to fully and fairly present their views and have such views considered in a process "appropriate to the statutory, institutional and social context of the decisions."
R.K. Heli-Ski Panorama Inc. v. Jumbo Glacier Resort Project
R.K. Heli-Ski Panorama Inc. ("R.K.") operated a heli-skiing business in an area known as Jumbo Valley. In 1993, a proposal by Glacier Resorts Ltd. ("Glacier") was accepted by the provincial government for the construction of a ski resort in Jumbo Valley (the "Resort"). From 1993 through 2002, the Resort underwent an environmental assessment process pursuant to the then existing legislation, and R.K. opposed the project at every stage of public consultation. As part of this process, a consultant was retained to assess the potential adverse effects of the Resort on R.K.’s business. This consultant produced a report that was not favourable to Glacier, and then spent eight months consulting with Glacier about its findings prior to issuing a final report.
In 2002, the old environmental assessment legislation was replaced by the Act, which imposed specific time limits on the project approval process. The assessment of the Resort was formerly transferred into the assessment process under the New Act.
In March 2004, the EAO hired a consultant to evaluate the measures proposed by Glacier to mitigate against adverse affects of the Resort on R.K.’s business. The consultant produced a report (the "Consultant Report") that contained conclusions far more favourable to Glacier.
Both R.K. and Glacier submitted comments on the Consultant Report. However, prior to receiving such comments, the EAO submitted its assessment report (the "EAO Report") for the Resort to the ministers responsible for the assessment process (the "Responsible Ministers"). Upon receipt of R.K.’s and Glacier’s comments on the Consultant Report, the consultant produced a 20 page supplemental report (the "Supplemental Report") providing a detailed explanation of why it would not modify its conclusions based on R.K.’s criticisms, but did not solicit any further input from R.K. The EAO then forwarded all material relating to the Consultant Report (including R.K.’s and Glacier’s comments and the Supplemental Report) to the Responsible Ministers together with an "Information Notice", which stated that the additional documents did not affect the conclusions in the EAO Report. The Responsible Ministers issued an Environmental Assessment Certificate on October 12, 2004 for the Glacier Project.
R.K. challenged the issuance of the Environmental Assessment Certificate on, among other grounds, the basis that it was denied "procedural fairness" as a result of the EAO’s failure to consider R.K.’s response to the Consultant Report prior to submitting the EAO Report to the Responsible Ministers. In particular, R.K. asserted that it had a "legitimate expectation" to be provided with an opportunity to provide input on the Consultant Report in a manner similar to that which was afforded Glacier in respect of the first consultant’s report prior to the introduction of the Act. The BCCA rejected this argument, noting that the context in which public consultation was to occur was established by the Act, and R.K. could not reasonably hold a legitimate expectation that consultation was to occur in a different manner.
The BCCA acknowledged that the timing of the submission of the EAO Report created concerns relating to procedural fairness, but held that these concerns were adequately addressed, and any breach of procedural fairness adequately remedied, by the forwarding of the Information Notice to the Responsible Ministers by the EAO.
Do Rav Right Coalition v. Richmond/ Airport/ Vancouver Transit Line by the R.A.V. Project Management Ltd.
Facts This case involved a challenge by the Do Rav Right Coalition (the "Coalition") of the underground rapid transit line (the "RAV Line") proposed by Rav Project Management Ltd. (the "Proponent") between downtown Vancouver and the Vancouver International Airport.
In September 2003, the EAO issued an order relating to the public consultation required in connection with the assessment of the RAV Line (the "Consultation Order"). The Consultation Order indicated that the RAV Line was "anticipated" to be constructed using a "twin bore tunnel" construction method, and contemplated that the assessment process would take place in two stages: a pre-application stage, and an application review stage.
The Proponent carried out extensive pre-application public consultation in accordance with the Consultation Order, and the Coalition participated in such consultation. However, in November 2004, the Proponent submitted its application for an Environmental Assessment Certificate based on using a "cut-and-cover" construction method rather than the "twin bore tunnel" method referred to in previous materials.
The EAO accepted the project for review, but noted the deviation in construction methodology, and requested that the Proponent provide an "Application Supplement" describing the selected construction method and addressing any consequential variations to impact assessments and mitigation measures. The EAO established a 45-day period to solicit new public comments in respect of the change in construction methodology.
After the expiry of this 45-day period, the Responsible Ministers ordered that the RAV Line undergo a further 21-day public consultation regarding, amongst other things, the "cut-and-cover" methodology. The Responsible Ministers then issued a Environmental Assessment Certificate in respect of the RAV Line, including the "cut-and-cover" method of construction.
The Coalition argued that in order for public consultation to be meaningful, the "cut-and-cover" methodology should have been considered in the pre-application consultation phase and prior to the acceptance by the EAO of the RAV Project for review. The BCCA disagreed, emphasizing that the additional consultation periods provided a full opportunity for the expression of views by the public before the Environmental Assessment Certificate was issued.
The Coalition also argued that it was denied procedural fairness as a result of the late change to the construction methodology. The BCCA also rejected this argument, noting that the correct question to be answered in assessing the procedural fairness of a public consultation process was whether persons affected by the decision had the opportunity to "present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional and social context of the decision." The BCCA held that any breaches of procedural fairness that had occurred were cured by the additional periods of consultation imposed by the regulator.