The strength of the common law is that it evolves. The courts, especially appellate courts, hear submissions from a wide range of parties that reflect and are informed by the broader public debate over the role of law in society. The courts respond to and add to the debate incrementally, decision by decision. In this way, courts develop the law in a way that is consistent with changing societal values and priorities.
When the courts fail to take advantage of an opportunity to engage with new or emerging issues, the development of the law stagnates and the status quo rules.
Last week’s BC Court of Appeal decision in Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, otherwise known as the Bitumen Reference case, was just such a missed opportunity.
What it is about
The Constitutional Division of Powers
The Canadian constitution divides the Crown’s authority to pass laws on various subjects between the federal and provincial governments. While the constitution does not expressly recognize the inherent law-making powers of Indigenous Peoples, Canadian courts have recognized that Indigenous legal orders pre-dated and survived Confederation.
Courts have also recognized that the division of the Crown’s legislative authority under the Constitution Act, 1867 did not exhaust all law-making authority in Canada and that the right to Indigenous self-government continues to exist and is affirmed by section 35(1) of the Constitution Act, 1982.
The Bitumen Reference Case
In the Bitumen Reference case, the Province of British Columbia argued that it has the constitutional authority to pass a law to protect the environment within the province and that this includes the power to restrict the flow of bitumen. Potentially, such a law could halt the proposed Trans Mountain pipeline expansion project.
The federal government argued that the proposed amendments to provincial legislation were unconstitutional because they interfered with federal jurisdiction over interprovincial pipelines.
Several Indigenous groups participated as intervenors, both to support the Province’s submissions and to advance their inherent legal authority to protect their lands and waters. The Indigenous intervenors included the Heiltsuk, who participated in part to address gaps in Canada’s spill response program which came to light after the Nathan E. Stewart tugboat ran aground and spilled pollutants into Heiltsuk waters in 2016.
What the Court said
All five judges at the Court of Appeal rejected the Province’s arguments and held that the proposed amendments were unconstitutional because they related directly to the regulation of a federal undertaking, i.e. the Trans Mountain project.
The Court found that while the proposed project could have negative consequences for the environment in BC, the project itself was national in scope. As such, it fell under federal jurisdiction and was subject to regulation by the National Energy Board.
The Court did not acknowledge or discuss the submissions of any of the Indigenous intervenors or the relationship between the Crown’s law-making authority under the constitution and Indigenous legal orders.
Why it matters
The decision is important for Indigenous Peoples for several reasons.
Indigenous Peoples have long seen their lands dispossessed, damaged, and degraded as a result of decisions by the Crown and private parties. In today’s context of climate change and the cumulative effects of resource exploitation, the risk of further damage to Indigenous Peoples’ lands and waters is significantly heightened.
By denying the Province jurisdiction to pass certain environmental protection laws, the Court has made it more likely that Indigenous Peoples will continue to bear a disproportionate burden of the impacts of resource development.
The decision is also significant for what the Court did not say.
By refusing to address the submissions of the Indigenous intervenors, the Court missed an opportunity to consider how Indigenous Peoples’ inherent jurisdiction and authority fits within and alongside the constitutional division of powers.
The Court’s approach in this case is out of step with other Canadian courts which are increasingly making serious efforts to understand and consider Indigenous legal orders. It is also contrary to the principles of the UN Declaration on the Rights of Indigenous Peoples and the federal government’s commitment to a new relationship with Indigenous Peoples based on recognition and respect.
Finally, while the decision is being heralded as a win for Alberta and pipeline proponents across the country, the celebration may be premature. The Province has an automatic right to appeal the decision to the Supreme Court, and has already announced its intention to do so.
Indigenous Peoples and their allies will be watching closely to see whether Canada’s highest court is prepared to consider the critical issues of Indigenous law and jurisdiction which were ignored by the BC Court of Appeal.
Kate Gunn is a lawyer at First Peoples Law Corporation. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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