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First Nations and other players in the resource-development arena are now very familiar with the Crown’s duty to consult with, and in some cases accommodate, Indigenous peoples when development projects have the potential to impact Aboriginal and treaty rights. The Supreme Court of Canada has said that the Crown cannot delegate this responsibility entirely to project proponents – certain procedural elements may be delegated, but the Crown has ultimate responsibility for consultation and accommodation.

A recent decision of the British Columbia Supreme Court takes this discussion a step further by asking: to what extent can a provincial government pass its duty to consult over to the federal Crown?

In Coastal First Nations v. British Columbia (Environment), the Court concluded that the Government of British Columbia had a duty to consult with the coastal First Nations concerned by the Northern Gateway Pipeline, and had breached the honour of the Crown by attempting to place all consultation and decision-making authority in the hands of a federal regulatory body, the National Energy Board.

This decision concerned a challenge by a group of British Columbia First Nations to the process that led to the National Energy Board’s approval of the controversial Northern Gateway Pipeline project.

The aim of the Northern Gateway project is to build a pipeline that would transport bitumen (an unrefined product of the Alberta oil sands) from Alberta to Kitimat, British Columbia, for shipment to foreign markets.

Being an interprovincial pipeline with potential environmental and social impacts in British Columbia, and requiring a number of provincial permits to go ahead, the Northern Gateway project engages both federal and provincial jurisdiction and would normally be subject to both a federal and a provincial environmental assessment.

In order to avoid duplication, B.C.’s Environmental Assessment Office (EAO) entered into a set of “equivalency agreements” with the National Energy Board (NEB). These agreements authorized the NEB to conduct an environmental assessment and make a final decision about the project on behalf of both the federal and provincial governments.

The NEB held a joint review panel to consider the project. British Columbia made submissions to the joint review panel, opposing the project on the grounds that Northern Gateway’s spill response plan was not sufficiently developed to protect the environment. Despite the province’s opposition, the NEB approved the project. It imposed 209 conditions, but still failed to address all of British Columbia’s concerns.

When the Coastal First Nations challenged the process, the British Columbia Supreme Court decided that the EAO did not have authority under B.C. law to grant its decision-making authority to the NEB.

Stressing the different capacities and roles of the federal and provincial governments in environmental protection, Justice Koenigsberg found that British Columbia had a duty to consult with the affected First Nations, and make its own decision about whether to impose additional conditions, such as improved spill prevention and response plans. She ordered the province to consult the affected First Nations and impose whatever conditions it deems appropriate.

This decision does not give British Columbia a veto over the Northern Gateway project – or any interprovincial pipeline project. Any conditions imposed by the province that could threaten the pipeline’s existence would have impacts outside the provincial boundaries and may be struck down for exceeding the province’s jurisdiction. The Court expressly left the door open for a future challenge on those grounds.

It is, however, a victory for Indigenous groups seeking more robust consultation, who likely find their efforts to be more effective when both the federal and provincial governments are at the consultation table. The decision is sure to impact consultation and environmental assessment practices going forward, as the federal government, the provinces and Indigenous peoples search for ways to co-operate in the increasingly complex world of environmental protection.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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