Focus On

ABORIGINAL LAW - Aboriginal Lands - Duties of the Crown - Fair dealing and reconciliation - Consultation and accommodation

Friday, February 03, 2017 @ 11:42 AM  


Appeal by Canadian Silica Industries Inc. and Jeffrey Bond (collectively, “CSI”) and the Director of the Environmental Assessment Office (EAO) from the decision in a judicial review proceeding instituted by the Fort Nelson First Nation. The underlying dispute centered on the CSI frac sand mine, located in the traditional territory of the First Nation. CSI had applied to move the mine into production. The First Nation wrote to the EAO, expressing concern that the project was reviewable, requiring an environmental assessment. It argued that production capacity for the project exceeded the numeric threshold for reviewability based on the total amount of sand and gravel to be excavated. Before the EAO could respond to the First Nation, CSI sent a letter seeking confirmation of its view that the project was not reviewable because the production level for products to be sold and used from the operation would be less than 240,000 tonnes per year. The EAO wrote back to CSI, placing responsibility with CSI to determine whether or not the project met the threshold for reviewability. In the letter, the EAO stated that a project with the capacity of CSI’s mine would not be reviewable. The EAO then responded to the First Nation, acknowledging the First Nation’s interpretation of the term “production capacity”, while reiterating its position that production capacity included only sand and gravel produced for sale or use, not all excavated material. Further correspondence was exchanged between the EAO and the First Nation before the First Nation commenced its petition for judicial review. The judge found the EAO’s interpretation of the threshold for reviewability unreasonable.

HELD: Appeal allowed. The judicial review decision was set aside. There was no decision made by the EAO that was subject to judicial review. The EAO did not make a determination that CSI’s project was not reviewable, but left that determination to CSI. Its interpretation of the meaning of production capacity was not a decision with legal effect. Because the parties’ dispute was not likely to end based on the appeal court’s ruling that there was no reviewable decision, the Court went on to determine that the EAO’s interpretation of production capacity was reasonable. There was nothing unreasonable about interpreting production capacity to mean only sand and gravel to be sold, rather than all materials excavated. This interpretation was consistent with the use of the term production capacity elsewhere in the regulatory scheme governing reviewability. The EAO’s interpretation provided certainty of application and promoted administrative simplicity. The EAO fulfilled its duty to consult with the First Nation, in considering the First Nation’s position, explaining why it did not adopt it, and providing rationales for its own interpretation.

Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), [2016] B.C.J. No. 2674, British Columbia Court of Appeal, S.D. Frankel, N.J. Garson and D.C. Harris JJ.A., December 19, 2016. Digest No. 3636-001