Case information

Aboriginal law — Treaty rights — Honour of the Crown — Duty to consult and accommodate Aboriginal peoples — Federal and provincial governments approving project proposal to construct hydroelectric dam — First Nations seeking judicial review of federal approval, alleging significant adverse effects from flooding on exercise of treaty rights — Whether federal Governor in Council, when acting as statutory decision-maker pursuant to section 52(4) of the Canadian Environmental Assessment Act, 2012, has jurisdiction to determine whether the decision would result in unjustifiable infringement of constitutionally-protected treaty rights, thus enabling it to prevent such infringement if it cannot be justified — Whether fundamental constitutional principle that statutory decision-makers must exercise discretion within constitutional bounds, articulated in Slaight Communications Inc. v. Davidson, applies when Crown action at issue has potential to infringe Treaty rights protected by section 35(1) of Constitution Act, 1982 — Whether judicial review is available to review decision of Governor in Council made pursuant to section 52(4) of CEAA, 2012 on grounds that such decision authorizes unjustified infringement of treaty rights — Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The “Site C Dam” project involves the construction of a hydroelectric dam on the Peace River in B.C., as proposed by British Columbia Hydro and Power Authority (“BC Hydro”), a provincial Crown corporation. The project is subject to regulatory review and approvals processes under both federal and provincial legislation. Canada and B.C. (“the Province”) entered into an agreement for a harmonized environmental assessment (“EA”) process, including the establishment of a Joint Review Panel (“JRP”), and a consultation and accommodation process with affected Aboriginal groups, including the applicants, Prophet River First Nation and West Moberly First Nations (collectively, “PRWM”). PRWM are adherents to Treaty No. 8, which expressly grants hunting, trapping and fishing rights, subject to Crown regulation and subject to the Crown “taking up” lands for various purposes.

In May 2014, the JRP produced a report concluding that although the benefits of the project were clear, the dam would likely lead to significant adverse environmental effects, including an impact on the treaty rights of Aboriginal groups (including PRWM) with respect to hunting, trapping and fishing activities, which could not be mitigated. In parallel with the provincial approvals process, the federal Governor in Council determined that the effects associated with the Site C Dam project were justified in the circumstances, and the project was authorized by a federal Order in Council. PRWM then brought an application for judicial review of the Order in Council in Federal Court, alleging that the Governor in Council ought to have determined whether approval of the project would have constituted an unjustified infringement of PRWM’s treaty rights, before reaching a decision on whether or not to approve the project.

The Federal Court dismissed PRWM’s application for judicial review of the Order in Council, finding that the Crown had met its duty to consult and accommodate through the EA process, and that there was no requirement on the part of the Governor in Council to determine PRWM’s treaty rights and whether these rights would be unjustifiably infringed. In addition, the consultation undertaken by the Crown was adequate. The Federal Court of Appeal unanimously dismissed PRWM’s appeal, agreeing that the Governor in Council is not empowered to adjudicate rights and to determine whether there would be an infringement of treaty rights and whether it would be justified. The Court of Appeal also agreed that the consultation was adequate in this case.