BC Hydro has proposed the construction of a massive dam and hydroelectric generating station along the Peace River close to Fort St. John in British Columbia. Construction of this project, the Site C Clean Energy Project, would flood the Peace River Valley. The project consists of the dam, a reservoir, a generating station with associated structures, transmission lines connecting this dam with one previously constructed, and realignment of four sections of highway. The project is anticipated to provide a substantial amount of energy (an average of 5,100 gigawatt hours per year) for the next 100 years.
In early 2011 BC Hydro initiated the environmental assessment process for this project by submitting project description reports to the relevant federal and provincial agencies. A cooperative federal-provincial joint review panel (JRP) process was decided upon for the purpose of fulfilling both jurisdictions’ requirements. The JRP process took place over subsequent years, including 26 days of public hearings between December 2013 and January 2014, and the JRP submitted its report on the project to the Minister of the British Columbia Environmental Assessment Office in May 2014. The JRP found specifically that:
- The project would likely have a significant adverse effect on fishing opportunities and practices for several Treaty 8 First Nations (including the applicants) which could not be mitigated;
- The project would likely have a significant adverse effect on hunting and non-tenured trapping for several Treaty 8 First Nations (including the applicants) which could not be mitigated;
- The project would likely have a significant adverse effect on other traditional uses of the lands by several Treaty 8 First Nations (including the applicants), some of which could not be mitigated;
- The project would cause significant adverse effects on the current use of lands and resources for traditional purposes;
- The project would have significant cumulative adverse effects on cultural heritage resources for both non-Aboriginal and Aboriginal people;
- The project would have significant adverse cumulative effects on fish and fish habitat, vegetation and ecological communities, birds and migratory birds, large mammals and visual resources; and
- The JRP questioned the maximization of the hydraulic potential of the Peace River, which limited the consideration of alternatives.
The JRP found that a number of Treaty 8 First Nations have a strong cultural attachment to the Peace River and its surrounding areas, which were “highly valued for the sustenance of their Aboriginal lifestyle”. The JRP also found that there was not any similar area that could provide for the exercise of protected Treaty 8 rights.
In August 2014 the applicant First Nations were asked to provide a written submission that stated their concerns with the project. They expressed concern over the infringement of their treaty rights and argued that the infringement required justification as outlined under the Sparrow test. The Minister did not respond to this submission. The Governor in Council (GIC) issued an Order-in-Council on October 14, 2014 in which they decided that the potential significant adverse environmental effects that are likely to ensue should the project be built were “justified in the circumstances”. This was followed by a decision statement released by the federal Minister of the Environment to allow the project to proceed.
The applicant First Nations contended that the GIC needed to consider whether the project constituted an unjustified infringement of their treaty rights before approving it. They alleged that the GIC’s failure to deal with the issue of infringement was an error of constitutional import that meant the decision could not stand. The applicants also asserted that they had a legitimate expectation that the issue of infringement would be dealt with by the GIC.
The Federal Court held that judicial review was not an appropriate vehicle for determining whether treaty rights had been infringed. The Court held that while the judicial review process is a flexible one, it is not flexible enough to deal with all issues and in all contexts, such as determining whether treaty rights have been unjustifiably infringed. The applicant First Nations argued that if they were to pursue the treaty right infringement issue through trial of a separate action their only possible remedy would be a monetary award of damages after the project was completed. However, the Court found that pursuing an action could provide a variety of remedies, including injunctive remedies, and was the proper process for determining the issue of infringement.
The Court went on to find that the Crown’s duty to consult the applicant First Nations was met. The Court came to this conclusion by applying the principle of good faith from the Supreme Court of Canada’s decision in Haida Nation, which held that the Crown does not have a duty to reach agreement so long as it undertakes a meaningful process of consultation. Both parties agreed that the seriousness of the potential impact of this project on the applicants’ treaty rights gave rise to a duty on the part of the Crown to engage in deep consultation; however, the applicant First Nations contended that the Crown failed to consider the infringement of their treaty rights and thus never reached the threshold for deep consultation.
The Court held that it was sufficient for the Crown to consider the applicants’ rights and the project’s negative impacts on those rights and assess the cumulative effects of the prior existing two dams on the applicants’ historic rights. The Crown did not need to determine whether the applicants’ treaty rights were infringed. The Court held that the GIC considered BC Hydro’s good faith efforts to consult the applicant First Nations and the Crown attempted to engage in a dialogue with the applicants to address mitigation and measures to be taken following issuance of the JRP report, but was rebuffed by the applicants as they had decided that not proceeding with the project was the only viable solution. The Court found that this decision was reached after the consideration of extensive input from the public, government agencies and Aboriginal peoples, including the applicants, throughout the multi-stage process of the environmental assessment of this project. The Court held that the Crown had made good faith efforts to understand the concerns of the applicants and these were reasonably considered by the GIC and the Minister of Environment in approving the project.