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Environmental Law - Environmental assessments - Canadian Environmental Assessment Act - Decisions of Governor in Council - Aboriginal issues - Traditional uses and traditional environmental knowledge

Thursday, March 23, 2017 @ 8:00 PM  


Appeal by The Prophet River First Nation and the West Moberly First Nations from a decision denying their application for judicial review of a decision by the Governor in Council (GIC). The appellants were British Columbia Treaty 8 First Nations. BC Hydro purported to take up Treaty 8 lands for the Site C Clean Energy Project (Site C Project), a hydroelectric dam on the Peace River. The GIC’s decision deemed that although the Site C Project would likely cause significant adverse environmental effects, including adverse effects on the Aboriginal peoples use of lands and resources for traditional purposes, these effects were justified in the circumstances pursuant to s. 52(4) of the Canadian Environmental Assessment Act (CEAA). The Site C Project was issued federal authorization to proceed by Order in Council. On judicial review, the judge found that the Crown had met its duty to consult and accommodate and that there was no requirement on the part of the GIC to determine the appellants’ treaty rights and whether the Site C Project unjustifiably infringed their treaty rights under s. 35(1) of the Constitution Act. The appellants submitted that the judge erred in applying a reasonableness standard of review, in concluding that the GIC was not required to determine treaty rights, and in concluding that a judicial review was not the appropriate forum to determine the appellants’ treaty rights and whether they had been infringed.

HELD: Appeal dismissed. The judge did not err in not reviewing the matter under the standard of correctness. Decisions rendered by the GIC were the result of a highly discretionary, policy-based and fact driven process. The decision was not unreasonable. The judge did not err in concluding that the GIC was not required to determine the appellants’ treaty rights. The approach advocated by the appellants would considerably weaken the application of the duty to consult and re-introduce an old approach to treaty rights at the early stage of claimed rights. There was no justification for such a reversal. Subsection 52(4) of the CEAA could not be read as conferring upon the GIC, either expressly or implicitly, the power to determine infringement of treaty rights. The judge did not err in finding that the GIC was not empowered to adjudicate rights and determine whether there was an unjustified infringement of the appellants’ treaty rights. The GIC lacked the necessary hallmarks associated with adjudicative bodies. Given the magnitude of the Site C Project, the Crown at the earliest stage of the environmental assessment approached consultation with the appellants from the deep end of the spectrum. The judge did not err in finding that judicial review was not the appropriate forum to determine if Treaty 8 rights were infringed.