BC Hydro has proposed a project involving the construction of a hydroelectric dam, reservoir, generating station, transmission lines and other various components near Fort St. John in British Columbia. There are already two other hydroelectric dams located along the Peace River in British Columbia.
Prophet River First Nation has a reserve approximately 240 kilometers north of the proposed site, as well as over 25,000 square kilometers of traditional territory. Most members of Prophet River exercise their rights to fish, hunt, and trap about 200 kilometers north of the area directly impacted by the project, but have spiritual and cultural sites that would be flooded by the proposed project’s reservoir.
West Moberly First Nations have a reserve located approximately 75 kilometers southwest of the proposed dam site, and 15 kilometers from the proposed transmission corridor. West Moberly First Nations have identified the Peace River sub-basin as an area of critical community interest for its members.
The petition from Prophet River First Nation and West Moberly First Nations hinges on the relationship between their treaty rights to hunt, trap and fish throughout treaty territory, and the right of the Crown to “take up” land for settlement, lumbering, trading, mining or other purposes from time to time. Both First Nations contend that the Crown’s right to take up land under Treaty 8 is not absolute and does not authorize so much land to be taken up for development that their ability to exercise traditional practices becomes jeopardized. The First Nations note that if the Crown’s taking up of land leaves them with no meaningful right to hunt, trap or fish in their traditional territories it will amount to a breach of their treaty rights that must be justified pursuant to the test set out in the Sparrow decision. They further contend that the taking up clause should be interpreted in light of the mutual understanding of the parties to the treaty, and that neither party at the time of ratification expected that taking up would so extensive as to jeopardize traditional practices.
BC Hydro was delegated certain procedural aspects of the consultation required of the federal and provincial governments, which it began in fall 2007. From this time until consultation ended in 2014 BC Hydro provided capacity funding of over $5 million so the applicant First Nations could conduct their own traditional land use and community baseline studies, retain consultants, and take part in meetings and other aspects of the environmental assessment process.
Representatives of the Treaty 8 Tribal Association (T8TA) had concerns relating to the draft Joint Agreement and Terms of Reference for the environmental assessment process. T8TA’s concerns included their view that alternatives to the project would not be given due consideration and that the process would not examine the nature and quality of the remaining treaty lands following construction of the project. T8TA also expressed particular concern over the fact that the Joint Review Panel could not make any conclusions or recommendations on the nature and scope of Aboriginal or treaty rights, on whether treaty rights would be infringed upon by the project, and whether the Crown had met its duty to consult. The Terms of Reference for the Joint Review Panel would only allow it to make recommendations on measures to avoid and mitigate adverse effects on Aboriginal and treaty rights. The federal and provincial authorities were of the view that the federal and provincial Ministers were responsible for the duty to consult and they would need to assess the seriousness of adverse impacts, the adequacy of consultation and whether accommodation measures are appropriate, not the Joint Review Panel.
Prior to the establishment of a Joint Review Panel, the First Nation petitioners and the federal and provincial authorities also exchanged information regarding the petitioners’ treaty rights and the potential impact of the project proposal on those rights. The federal and provincial agencies provided the First Nation petitioners with letters outlining their preliminary assessment of the scope of Treaty 8 rights, the potential impacts of the project on those rights and the required depth of consultation for each individual Aboriginal group. The provincial authority provided its preliminary understanding of Treaty 8, including the taking up clause, but did not discuss this aspect of Treaty 8 at length.
Once the Joint Agreement was finalized and signed, the next stage in the environmental assessment process involved the preparation of environmental impact statement guidelines. At meetings discussing these guidelines, T8TA again expressed its concern that the approach adopted by the Crown would not effectively determine the impacts of the project on treaty rights. T8TA had provided more detailed information on its understanding of its treaty rights than what had been preliminarily assessed by the provincial Environmental Assessment Office and it expressed frustration that the preliminary assessments had not been updated. The provincial authority acknowledged that further information but did not provide its own interpretation of the taking up clause in Treaty 8, nor did it respond to T8TA’s interpretation of that clause. The guidelines were finalized and BC Hydro prepared and submitted a draft environmental impact statement in January 2013, which T8TA commented on as well, alleging, among other things, that BC Hydro had failed to integrate information and materials it provided into the statement.
The Joint Review Panel then reviewed the environmental impact statement to decide whether there was sufficient information to proceed to a public hearing. Once it had made this determination, public hearings took place from December 2013 to January 2014. These hearings included community hearings conducted in Aboriginal communities, during which the Panel sought information on Aboriginal and treaty rights that may be adversely affected by the project, the manner in which the project might affect those rights, the location and extent of the exercise of those rights, and measures that might avoid or mitigate potential adverse effects. T8TA filed numerous documents, including letters, hearing exhibits, responses to undertakings, questions for BC Hydro, reports, written submissions, and final closing remarks, and their evidence touched on treaty rights, current use of the area affected by the project, cumulative effects and needs and alternatives to the project. T8TA also repeatedly raised the issue of the project infringing treaty rights in its submissions to the Panel, alleging that the project would lead to an infringement through the project’s cumulative effects in combination with other development in the region.
The Joint Review Panel released its final report to the federal and provincial governments in May 2014. In addition to its general environmental effects, the report concluded that the project was likely to cause significant adverse effects on fishing opportunities for the First Nations represented by T8TA and that these effects cannot be mitigated. While it would still be possible to fish in the reservoir, the knowledge of fishing sites, preferred species and cultural attachment to specific sites would be lost and the capacity of Aboriginal groups to transfer knowledge and culture to future generations would be impeded. It also concluded that the project was likely to cause significant adverse effects on hunting and trapping opportunities, as well as other traditional land uses, which could not be mitigated.
Following the report’s release, the federal and provincial authorities engaged in further consultation with Aboriginal groups and T8TA provided further comments and concerns to them in writing. T8TA again asserted that the Crown must consider whether the project is justified, as well as the need for the project and the available alternatives. The project received its certificate in October 2014 and BC Hydro and the Province sought to enter into discussions with the petitioners to negotiate lump sum payments in compensation for the project’s impacts, as well as land protection measures and, in the case of West Moberly, a land transfer. The petitioners have not accepted these offers.
The First Nation petitioners contend that by issuing the certificate the Ministers either decided that the project would not infringe their rights or did not make a decision on infringement. Sewell J stated that he did not believe the Ministers had decided whether the project infringed on the petitioners’ treaty rights. He relied heavily on the decision of Kwikwetlem First Nation v British Columbia that stated that ministerial review was to consider adverse effects that undoubtedly included Aboriginal rights and title, even though they were not clearly stated. He believed that the Ministers were making a decision based entirely on policy, and not on rights. Because a certificate is not a licence, the Ministers' approval is not a final decision on rights; adjudication on rights is still available. The ministerial approval only assesses a project’s vast impact on society, it is not one that inherently resolves disputes between parties.
Sewell J stated that because of the scope of the Ministers' approval, the Ministers did not have the jurisdiction to decide whether the project was an infringement of treaty rights. He believed that the issue raised by the applicant First Nations requires an action which could properly determine the clauses and overall construction of Treaty 8, as well as determine the extent of the effect on Treaty 8 territory with respect to each First Nation. Because the Ministers did not have the authority to determine infringement, the Ministers made no error in issuing the certificate. As a result of this finding, the Sparrow test was not applied.
With respect to the issue of whether the Court could decide if there was infringement, Sewell J concluded that he was not in an appropriate position based on the inadequate factual record. The proper method for claiming infringement would require the applicant First Nations to provide the Court with evidence relating to the boundaries of their traditional territory and the impact of the project on their rights through admissible evidence that could be accepted by the Court.
Although Sewell J earlier discussed that the proper construction of Treaty 8 could be determined through an action, he found that the government was correct in tempering its power to take up land by substantially addressing the concerns of the affected First Nations. The government informed itself of the adverse effects the project would have on treaty rights and attempted to address these concerns. The government also conducted deep consultation in good faith with the T8TA. Although consultation did not achieve reconciliation between the First Nations and the government in this case, ample and meaningful efforts had been made to consult and accommodate.
The applicant First Nations also challenged the certificate on administrative law grounds. The Court held that the Ministers made reasonable decisions in issuing the certificate, and that the Two Rivers Policy did not create a foregone conclusion that resulted in a bias in favour of issuing the certificate.