Please see the new Press Release from the Council of the Haida Nation on Trudeau’s announcement.  According to CHN President Peter Lantin:

“There are many good reasons to oppose these projects and few to support them. The perceived

benefits in no way trump what we know we will lose. Our Nation has done its due diligence; we have spoken

to BC and Canada, we have looked at the environmental, social and legal impacts of these projects and are not

convinced that shipping LNG or oil from the west coast is a good idea. These projects will further pollute the

Earth and no good will come of them.”

To view the full press release, please see: CHN_LNG_ENB_Final

Recently the British Columbia Supreme Court (“Court”) released its reasons for judgment in Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34. The BC Environmental Assessment Office (the “EAO”) had entered into an equivalency agreement (the “Agreement”) with the National Energy Board (“NEB”). The Agreement allowed for the EAO to rely on an environmental assessment from the NEB related to Enbridge’s Northern Gateway project (the “Project”). The   Court found that the Province of British Columbia had abdicated its statutory duties and breached its duty to consult with the Coastal First Nations when it signed and failed to terminate the Agreement that provided the NEB with sole jurisdiction over the environmental assessment decision-making regarding the Project.

Background

British Columbia’s Environmental Assessment Act, SBC 2002, c 43 (the “EAA”) is the main legislative framework for the Province’s environmental assessment process for proposed major projects. In 2008 and again in 2010, the EAO and the NEB entered into equivalency agreements which were intended to avoid redundancy in the approval process and promote a coordinated approach. The equivalency agreements provided that the EAO accepted that any NEB assessment would constitute an equivalent assessment under the EAA. In doing so, the EAO abdicated its decision-making authority.

Coastal First Nations – Great Bear Initiative Society and Gitga’at First Nation (collectively “CFN”) sought, by way of judicial review, a series of declarations setting aside, in part, the Agreement for the Project.  CFN argued that while the EAA granted jurisdiction to the EAO to accept another jurisdiction’s assessment of the Project, the EAA did not authorize the EAO to abdicate its decision-making authority to grant an environmental assessment certificate (a “Certificate”) under the EAA. A Certificate is required prior to the approval of any project. In addition, CFN argued that they were owed a duty to consult prior to the Province entering into the Agreement and before the Province decided not to terminate the Agreement.

Decision

Statutory Interpretation

The Court first considered whether the EAA allowed the Province to abdicate its decision making. CFN argued that while the EAA provided authority for cooperation to avoid duplication of environmental assessments, the provisions of the EAA did not go so far as to allow for the abdication of the Province’s decision making.

In response, the Province argued the authority given to the Province and the exercise of that authority was an example of an effort by the Province to reconcile the overlap in jurisdiction between provincial and federal regulators with respect to environmental assessment.  Therefore the structure of the EAA allowed the EAO to exempt certain projects from obtaining a Certificate. The Northern Gateway project was one such project.

The Court acknowledged that the EAA granted the Province broad discretion to enter agreements with other jurisdictions to allow for equivalent environmental assessment processes. However, the Court concluded that the Province’s unique objectives, political and social goals, and legal obligations that led to the enactment of the EAA required an interpretation of the EAA that did not allow the Province to abdicate its decision-making authority. The Court stated the following:

…it cannot be the intention of the legislators to allow the voice of British Columbia to be removed in this process for an unknown number of projects, when the purpose behind the EAA is to promote economic interest in this province, and to protect its land and environment.

For these reasons, the Court held that despite the Agreement or other similar agreements, reviewable projects must obtain a Certificate under the EAA before projects began. Accordingly, the Court held that the Agreement was invalid to the extent that it purported to remove the need for reviewable projects to obtain a Certificate under the EAA. Finally, the Court declared that the Province must exercise its decision-making authority under the EAA in relation to the Project.

The Duty to Consult and Accommodate

The Court also considered whether there was a constitutional obligation on the Province to consult with First Nations before engaging in government action that may adversely affect First Nations’ rights. CFN argued that the Province had a duty to consult with First Nations before entering into the Agreement, as the Agreement allowed the Province to avoid its obligation to make a decision on the Project. Further, CFN argued that the Agreement provided for unilateral termination as it allowed the Province to terminate the Agreement at any time. Therefore the Province would not have been bound by the federal government’s decision if the Province terminated the Agreement prior to the federal government’s decision to approve the Project and completion of an environmental review process would be required.

In response, the Province asserted that no duty to consult arose in relation to entering into or terminating the Agreement for. The Province argued that pursuant to the Agreement the duty is assumed by the federal Crown. Generally, however, the Province took the position that the duty to consult does not arise until “actual foreseeable adverse impacts on an identified treaty or Aboriginal right or claim must flow from the impugned Crown conduct.” The Province’s position was that there must be a direct link between the adverse impacts and the impugned Crown conduct. If adverse impacts are not possible until after a later-in-time, independent decision, then it is that later decision that triggers the duty to consult.
The Court rejected the Province’s argument that the Agreement shifted sole responsibility for the duty to consult and accommodate to Canada, noting that both the federal and provincial Crown owe “specific responsibilities to consult First Nations as their respective legislative powers intersect”. However, the Court held that the Province did not owe a duty to consult prior to entering into the Agreement because there was little possibility that CFN’s rights would be adversely impacted by the Agreement as the Province retained the ability to unilaterally terminate the Agreement.  Nonetheless, the Province did owe CFN a duty to consult and accommodate on the Project and the duty to consult if the Agreement was not terminated.

By way of remedy, the Court ordered the Province to consult with CFN about the potential impacts of the Project on areas of provincial jurisdiction and how such impacts may affect CFN Aboriginal rights and should be addressed.

Implications

While it is unclear whether this decision will be appealed, it does raise a number of interesting questions with respect to the extent that provinces and the federal government may cooperate in EA processes. This decision makes it clear that the province cannot abdicate its duty to consult to the federal Crown in respect of projects that require both federal and provincial approval. As the Northern Gateway Pipeline Process and the Trans Mountain Process are subject to the same equivalency agreement, it is clear that the Province may adopt the NEB’s assessment.  However, it must consult First Nations about the impacts of the project before the Trans Mountain Pipeline can be approved.

The federal government has recently proposed a suite of new requirements for pipelines, including enhanced environmental requirements and First Nation Consultation. These new requirements provide for robust changes to the NEB’s review process and will likely affect the Northern Gateway Pipeline Process and the Trans Mountain Process. BLG will continue to monitor any appeal and follow the federal pipeline regulatory changes.

Federal Court of Appeal
October 1 – 2 and 5 – 8, 2015
Vancouver, BC
Open to the public.

From the Council of the Haida Nation:

The next milestone in the ongoing effort to defend northern BC from oil pipelines and supertankers is just around the corner. Please see attached PDF: CHN Legal Challenge Overview 2015.8.12

Some highlights from the document:

Have you heard the radio call from the Exxon Valdez?  The audio of the tanker captain’s call for help over the radio is the opening soundtrack for a 2 minute awareness ad for the campaign against the Enbridge Northern Gateway Pipeline, and the expansion of tanker traffic on the coast of BC.  The ad gives us statistics on the potential impact of a spill like the Exxon Valdez in Canada, for example, costing 4,379 jobs, and $21.4 Billion dollars to clean up (biologists monitoring the ecosystems in Alaska point out that the Valdez spill was never fully cleaned up and that oil can still be found by digging a few feet into the sand of some beaches.  See Lingering Oil).  Set to the Sounds of Silence by Paul Simon, the video is a reminder to us of what is at stake in pursuing a resource-based industry in Canada.

Read the full original document at the WCEL website

Read “Why the Budget Act is bad news for fish”

What Bill C-38 means for the environment

1. Changes to the Fisheries Act mean that the law may no longer protect all fish and
the waters where they live.
The new protection framework could exclude many fish and watercourses. Generally,
habitat protection will only include permanent alteration or destruction of “commercial,
recreational or aboriginal fisher(ies)” habitat and some activities will be exempt from the
law regardless of how much damage they cause. The federal government will also be
able to hand over the power to authorize destruction of fish habitat to provincial
governments or other entities, which is worrisome.

2. No maximum time limits on permits allowing impacts on species at risk.
This means that there will no longer be any guaranteed review to evaluate ongoing
impacts to endangered species. These potential ‘perpetual’ permits could continue even
where there is a drastic decline in the population of a species affected by the permitted
activity.

3. The National Energy Board (NEB) will be exempted from species at risk
protections.
The NEB will no longer have to ensure that measures have been taken to minimize
impacts on the critical habitat of at-risk species before the NEB approves a pipeline or
other major infrastructure. For example, there is no guarantee that an environmental
assessment will consider the impacts of a proposed pipeline project and related oil
tanker traffic on the habitat of endangered orca whales before the NEB issues a
certificate approving that pipeline.

4. The Canadian Environmental Assessment Act is being replaced with a new Act
that will significantly narrow the number of projects that will be assessed for their
environmental, social and economic impacts.
Assessments, when they happen, will be less rigorous and subject to time limits that will
place further constraints on public and First Nations’ participation. The new Act will apply
only to “designated projects,” but we don’t yet know what those will be. The new Act
gives the Environment Minister and government officials broad decision-making power:
The Canadian Environmental Assessment Agency would be able to exempt a
designated project from even going through the assessment process.

5. The federal government is offloading responsibilities to the provinces.
This is troubling because the patchwork of environmental laws and policies at the
provincial level leave doubt as to whether they can act as a sufficient or legally
defensible substitute for federal oversight. Prime examples of this offloading include
shifting responsibility for implementation or enforcement of the Fisheries Act to provinces
and eliminating many federal environmental assessments.

6. Cabinet is now granted authority to override a “no” decision of the National
Energy Board.
This may allow politics of the day to trump an independent, objective process and
undermine the NEB’s expertise.

7. No more joint review panels.
Where a major energy project will be subject to an NEB hearing, a Canadian
Environmental Assessment Agency-enabled review panel is prohibited, so there will be
no more joint review panels. Thus, the environmental implications of major energy
projects will now be evaluated only by the energy regulator.

8. Broad decision-making powers are being shifted from the public realm and given to Cabinet and individual Ministers.
This means decisions related to fish habitat protection and environmental assessments
will be allowed to be made behind closed doors with minimal public scrutiny.

9. Significant narrowing of public engagement in resource review panel hearings,
particularly for major oil projects, pipelines and mines.
In order to participate, people will have to prove they will be directly affected or have
relevant information or expertise. In some cases, their contributions may still be ignored.

10. Repeal of two important environmental laws.
The repeal of the Kyoto Protocol Implementation Act, means no more domestic
accountability measures on climate change and the repeal of the National Round Table
on Environment and Economy Act will phase out this valuable advisory body completely.