Court decisions can often provide learning opportunities — they establish legal principles, apply those principles to certain facts, and illustrate relative trends, or stability, in the law.
The recent decision of the B.C. Supreme Court in Fort Nelson First Nation v. B.C. Oil and Gas Commission (Fort Nelson) provides a number of learning opportunities. It offers another data point on what constitutes (or does not constitute) reasonable consultation with Indigenous people, it provides a good example of the current state of different aspects of Indigenous law in Canada, and it suggests potential upcoming instability in an area that has been relatively stable for a lengthy period of time.
Rockyview Resources (Rockyview) applied to the B.C. Oil and Gas Commission (OGC) — a statutory decision-maker responsible for regulating oil and gas activities in B.C. — for permits to construct a pipeline and storage facility in the Fort Nelson First Nation’s (Fort Nelson) traditional territory. The Fort Nelson First Nation is located in northeastern B.C. and is a beneficiary of Treaty 8.
In assessing applications, the OGC is required to consult with potentially affected Indigenous groups. When the OGC began consulting with Fort Nelson about Rockyview’s proposal, Fort Nelson raised numerous objections, particularly about the potential impact on its treaty right to hunt caribou. Fort Nelson was concerned that the activities would adversely affect the area’s caribou population, and provided a report commenting on Rockyview’s Caribou Management Plan. Fears over the caribou’s declining population had already led Fort Nelson to suspend its own hunting to allow population levels to recover.
The OGC exchanged communications with Fort Nelson over a number of months. However, according to Justice Gerow, because the OGC considered that the proposed activities would not have a material impact on caribou, the OGC would not discuss the caribou issue further. This meant that the OGC would not discuss the adequacy of Rockyview’s Caribou Management Plan, Fort Nelson’s report on Rockyview’s plan or the health of the caribou population.
The OGC eventually granted the permits. Fort Nelson then applied to the B.C. Supreme Court to have the permits set aside on the basis of inadequate consultation.
JUSTICE GEROW’S DECISION
Justice Gerow’s decision is admirably brief. She indicated that there was no dispute between the parties about the legal principles regarding either the duty to consult or the standard of review. The OGC conceded that it had a duty to consult Fort Nelson about the potential impacts of the proposed activities on its treaty rights prior to making a decision, and Fort Nelson conceded that it did not have a veto over Rockyview’s activities.
As a result, Justice Gerow could move quickly through the following principles:
- The government has a duty to consult and potentially accommodate when Indigenous rights may be affected by contemplated activities — Haida Nation v. British Columbia
- This duty applies even when government is taking up lands under a treaty — Mikisew Cree First Nation v. Canada
- The role and responsibility of statutory decision-makers, such as the OGC, in satisfying the government’s duty — Clyde River v. Petroleum Geo‑Services Inc. (see our July 2017 Blakes Bulletin: SCC Confirms the Role of Regulatory Tribunals in Aboriginal Consultation).
As a result, Justice Gerow indicated that the only issues were whether the OGC had engaged in a reasonable consultation process and, if not, what the appropriate remedy should be.
Justice Gerow does not express any difficulty in finding that the consultation by the OGC was unreasonable. By constraining the range of issues that could be discussed, she found that the OGC had been unwilling to engage in meaningful consultation. According to Justice Gerow, the OGC had been “intransigent,” and this was an unreasonable limitation on the consultation process.
She then considered the appropriate remedy. The OGC and Rockyview submitted she should uphold the permits and send the matter back for further consultation. Conversely, Fort Nelson relied on comments in Clyde River that a decision made without adequate consultation should be set aside. Justice Gerow found, relying on Clyde River, that when a decision impacting Indigenous rights has been made in contravention of the duty to consult, the appropriate remedy is to quash the decision.
Fort Nelson provides lessons learned (or re-learned) on what constitutes reasonable consultation. Justice Gerow noted that an entity engaged in consultation cannot proceed on the assumption that the proposed activity will take place and that some form of mitigation would suffice to address Indigenous groups’ concerns.
While the OGC argued that it was inviting further discussion regarding Fort Nelson’s concerns, Justice Gerow’s assessment was that the OGC would not discuss the potential impact of the proposal on caribou. Lesson learned: refusing to consult, or appearing to refuse to consult, increases legal risk.
The second lesson is a broader one. Indigenous law is often portrayed as mysterious and constantly changing. However, the apparent ability of the parties to agree on the legal principles at hand, and Justice Gerow’s relative ease in expressing them, suggests that some aspects of Indigenous law in Canada have reached a point of maturity where there is enough guidance from previous decisions that applicable principles can be discerned and then applied.
Notwithstanding this, Justice Gerow’s remedy is an example of where legal instability may exist for a period of time. Prior to this decision, there had been a reasonable amount of stability in the remedy for inadequate consultation for a lengthy period of time. While quashing decisions was an option, most judges acknowledged that this could result in steps being unnecessarily redone, rather than simply addressing the identified inadequacies with consultation. Justice Gerow’s decision suggests that Clyde River should be read as an absolute rule. It will be interesting to see if other judges adopt this interpretation or a more flexible one based on the circumstances.