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 provincial approval, alleging significant adverse effects from flooding on exercise of treaty rights — Whether provincial Ministers must determine adequacy of consultation as prerequisite to exercise of discretion — Whether scope of Ministers’ duties when section 35 rights are engaged and principle of honour of the Crown require that, before exercising ministerial discretion to grant project approval pursuant to provincial Environmental Assessment Act, Ministers must be satisfied that project will not constitute unjustifiable infringement of treaty rights — Whether consultation and accommodation can be reasonable and consistent with honour of the Crown when Crown forecloses from the outset consideration of numerous relevant factors, and limits potential accommodation options — Whether there is a remedy available when Crown does not “honourably manage the changes” in land use and when First Nations under numbered treaties are foreclosed from bringing action for treaty infringement until such time as there is no longer a meaningful right to fish, hunt or trap — Environmental Assessment Act, S.B.C. 2002, c. 43.

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 federal approvals process, B.C. provincial Ministers issued an Environment Assessment Certificate (“EA Certificate”) approving the project, subject to conditions. PRWM then brought an application for judicial review in B.C. Supreme Court, challenging the provincial EA Certificate on the basis that the Ministers ought to have assessed the adequacy of consultation and accommodation efforts, and determined whether approval of the project would constitute an unjustified infringement of PRWM’s treaty rights, before issuing the EA Certificate.

The B.C. Supreme Court dismissed PRWM’s petition, finding that the provincial Ministers lacked the necessary jurisdiction to determine whether the Site C Dam project would unjustifiably infringe any treaty rights, and concluding that there was insufficient evidence on the record for the court itself to make a proper determination of this issue. The court also found that the consultation undertaken by the Crown was adequate in this case, and that the Ministers’ decision to allow the project to proceed could not be said to be unreasonable. The B.C. Court of Appeal unanimously dismissed PRWM’s appeal, agreeing that the Ministers were not required to determine whether the project constituted an unjustifiable infringement of treaty rights, and were not required to make a determination on the adequacy of the consultation undertaken and the accommodation measures afforded, before issuing the EA Certificate. The Court of Appeal also concluded that the Crown’s consultation and accommodation efforts were adequate in this case.