Upper Nicola Indian Band v. British Columbia (Environment), 2011 BCSC 388

British Columbia Supreme Court, March 31, 2011

Available at: http://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc388/2011bcsc388.html

This case arose from a judicial review of a decision approving an Environmental Assessment Certificate (the “EAC”) on the construction of a transmission line in Columbia from the Interior to the Lower Mainland (the "ILM Project"). Parts of the ILM Project traversed areas over which the Petitioners, the Upper Nicola Indian Band, the Okanagan Nation Alliance and the Nlaka’pamux Nation Tribal Council, assert claims of Aboriginal title and/or rights. The Petitioner First Nations claimed entitlement to various relief on the basis that the Crown Respondents, the Minister of the Environment, Minister of Energy, Mines and Petroleum Resources and the Minister of Aboriginal Relations and Reconciliation as well as British Columbia Hydro, failed in their constitutional duty to consult. The substantive issue was whether the Court should quash the joint decision of the Ministers to approve the EAC.

The First Nations argued that the Crown took an overly narrow view of its duty to consult and that such duty once engaged by current actions, included existing and ongoing impacts of past failures to consult. The First Nations argued that the scope of the duty to consult in this case included the aggregate effects of the full ILM system. Alternatively, the First Nations argued that even if the duty was not that broad, the Crown committed to engage in concurrent consultation as part of the environmental assessment process on past claims and that ongoing rights infringements related to past actions and should be required to fulfill that commitment.

The Crown argued that they had fulfilled their constitutional obligations and relied on their efforts. These efforts included consultation with sixty First Nations, seven Tribal Associations, six incorporated municipalities, four unincorporated municipalities and three regional districts on the project. The Crown denied that they agreed to consult on past claims and ongoing rights infringements related to past actions. The Crown also argued that there was no duty to consult on existing and ongoing impacts related to past actions as part of the environmental assessment process.

The petitions were dismissed. Justice Savage held that in approving the EAC, the Ministers had a duty to ensure there was appropriate consultation with the affected First Nations. However, any duty of consultation would have to relate to the impact on the claimed rights of the current decision under consideration. Justice Savage held that the constitutional duty to consult did not apply to the larger historical impacts of previous works, or the ongoing existing impacts arising from previous decisions. The decision followed the ruling of the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council ("Rio Tinto") to conclude that the purpose of the duty to consult is to protect unproven rights from the effects of proposed conduct pending claims resolution. In this case, it was held that the required consultation concerned the adverse impacts flowing from the specific ILM Project and that there was no broader commitment to consult on the existing or ongoing impacts.

The First Nations had attempted to distinguish Rio Tinto on the basis that that case dealt with unique facts and a narrow question. Justice Savage disagreed and confirmed that consultation is to be directed at the potential effects of contemplated conduct, not the past, existing, ongoing or future impacts of past decisions or actions. Justice Savage agreed that the decision in Rio Tinto recognized the importance of historical and ongoing issues but these did not form part of the consultation on present proposed developments. The historical effects on potential claims of Aboriginal rights were held to be outside the scope of the right to consultation.

As to the process of consultation followed in this case, Justice Savage found that it amounted to a process of “deep consultation” in that various opportunities were offered, including an invitation to participate in a Working Group, a request to comment on the various work plans drafted in relation to the project and the ability to comment and review the Project Terms of Reference. Justice Savage also found that there was no commitment to harmonize the separate consultations which had taken place on existing works and that the Crown could not be interpreted as having committed to suspend the environmental assessment process.