Environmental Assessments and the Duty to Consult

By Bruce McIvor

Case comment on Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2015 BCSC 1180

With the approval of the courts, federal and provincial governments often shoehorn the duty to consult and accommodate First Nations into environmental assessment processes. These processes are ill-suited for First Nations’ needs and expectations. The recent decision from the B.C. Supreme Court in Fort Nelson First Nation exemplifies some of the key shortcomings in relying on environmental assessment processes to fulfil the duty to consult Indigenous Peoples.

What it is about

A proponent sought provincial government approval to develop the Komie North Mine near the City of Fort Nelson as a sand and gravel pit to supply fracking sand to the local oil and gas industry. There were indications that the proponent had plans to develop five more sand and gravel pits. All of these pits would be in the territory of the Fort Nelson First Nation, a member of Treaty 8.

Under the B.C. Environmental Assessment Act a new sand and gravel pit requires an environmental assessment if 500,000 tonnes or more of sand and gravel are excavated during one year or if over a 4-year period a total of 1,000,000 tonnes or more are excavated.

The proponent was planning to excavate much more than 1,000,000 tonnes of sand and gravel over four years from the Komie North Mine. But, according to the proponent, it only intended to sell a small portion of the sand and gravel excavated. The rest would be waste. Therefore the proponent informed the province that the Komie North Mine would have a production capacity of not more than 960,000 tonnes of sand and gravel over a four-year period—40,000 tonnes less than the threshold to trigger a provincial environmental assessment.

Based on the proponent’s estimate, and without consulting the Fort Nelson First Nation, the province decided the Komie North Mine proposal did not meet the threshold under the Environmental Assessment Act to trigger an environmental assessment.

The Fort Nelson First Nation applied for judicial review of the provincial government’s decision on the basis that it was unreasonable and that the province had failed to consult and accommodate.

What the court said

Based on a B.C. Court of Appeal decision which had described provincial environmental assessments as ‘proponent driven’, the province argued that it was right to accept the proponent’s production capacity estimate for Komie North Mine and was not required to look behind the numbers to determine if they were reasonable.

The Court rejected the province’s uncritical acceptance of a proponent-driven approach to the issue of whether environmental assessments are triggered. According to the Court, such an approach ran the risk of allowing projects that interfered with Aboriginal and Treaty rights to proceed without environmental assessments. The possibility that a First Nation might subsequently succeed in having a proponent penalized would be of little or no benefit to a First Nation after their Aboriginal and Treaty rights had been infringed or extinguished.

According to the Court, it was unreasonable for the province to interpret its legislation to restrict the calculation of production for new sand and gravel pits to only that portion of the extracted sand and gravel the proponent intended to sell or use.

The Court concluded that when constitutional rights are involved, the province must be held to a higher standard to protect those rights than when it is considering general issues of environmental protection.

The Court also rejected the Province’s arguments that the duty to consult was not triggered because the effects on Treaty rights were speculative and because the interpretation of the legislation was a matter of general application and not a strategic, high level decision that would trigger the duty to consult.

The Court noted that by accepting the proponent’s limitation on the calculation of the mine’s production capacity, the province had set the stage for more mines to proceed without environmental assessments. Consequently, the decision potentially affected all areas in the Fort Nelson First Nation’s territory with the potential for fracking sand mining.

The Court held that the province did not meaningfully consult with the Fort Nelson First Nation in good faith and seek to accommodate the First Nation’s Treaty rights. It set aside the decision and ordered the province to make a new decision as to whether an environmental assessment was triggered.

Why it matters

The decision is of general importance for three main reasons. First, it is another defeat for government and industry in their ongoing attempts to limit the application of the duty to consult by arguing a decision is not a strategic, high level decision and therefore the duty is not triggered.

Second, the decision is another example of the courts rejecting government's narrow vision of the duty to consult. The fact that there were possibly five more similar sand and gravel pit authorizations in the offing obviously influenced the Court's reasoning. It did not accept that the province could consider one authorization in isolation from the wider context and impacts.

Third, and most importantly, the decision highlights one of the central problems with conflating the duty to consult with environmental assessments. By either setting higher triggering thresholds (see my comment on the Canadian Environmental Assessment Act, 2012) or favouring industry when deciding on whether a threshold has been met, governments can virtually scope out the duty to consult. The decision is an important example of the courts grappling with the issue and holding governments to a higher, principled standard.

Read the full decision.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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