The Supreme Court of Canada dismissed a leave application filed by the Halalt First Nation in regards to the November 22, 2012 order of the British Columbia Court of Appeal (2012 BCCA 472).

In July 2011, the B.C. Supreme Court made an order declaring that British Columbia failed to adequately consult the Halalt First Nation in regards to the environmental assess process surrounding a groundwater project near Chemainus, and failed to reasonably accommodate the potential infringements posed by the project to the Halalt’s asserted aboriginal rights and title: 2011 BCSC 945.  The Court ordered that any actions or decisions pursuant to the certificate issued by the EAO be stayed pending adequate consultation.  No order as to any specific form of accommodation was made.

The B.C. Court of Appeal allowed an appeal from the chambers judge’s order in November 2012. Chiasson J.A. questioned the findings of the chambers judge that a strength of claim assessment must always be made at the beginning of the consultation process. It is clearly desirable, and sometimes necessary, for a strength of claim assessment to be made, but it is the quality of the consultation that must prevail. The Crown conceded that deep consultation was required in this case, and the lack of a formal strength of claim assessment did not undermine the consultation. The Court also doubted the comments of the chambers judge that as a “matter of law” the First Nation was entitled to a timely and transparent assessment of the strength of claim. Chiasson J.A. also questioned the necessity for a lengthy analysis of the petitioner’s strength of claim in a judicial review proceeding, since that may adversely affect negotiations. Ultimately, the Court of Appeal concluded that the chambers judge erred in finding that Crown failed to meet its duty to consult. The effect of the chambers judge’s decision was to impose a requirement to consult on an application that was not before the Crown. The concerns of the petitioner were taken seriously, and the process was reasonable. The scaling back of the project demonstrated that accommodation had been made.

A summary of the case found on the SCC’s website was as follows:

Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples — Whether it is a legal certainty that the Province has exclusive ownership of and jurisdiction regarding all the groundwater beneath an Indian Reserve or Aboriginal title lands — Whether the scope of the Crown’s consultation must reflect the strength of both Aboriginal rights and the Aboriginal title where a First Nation asserts that both Aboriginal rights and Aboriginal title may be affected by contemplated Crown conduct.

In 2001, the District of North Cowichan proposed to install three pumps to pump ground water from the Chemainus Aquifer to avoid problems with the local surface water. The pumps would be on fee-simple land on the banks on the Chemainus River. The river runs through the reserve of the Halalt First Nation, and a substantial part of the Aquifer runs under the Halalt Indian Reserve. The Halalt were engaged in treaty negotiations with Canada and British Columbia under the British Columbia Treaty Process. Their claims included freshwater resources, including groundwater. Funding for the Project was subject to approval under provincial and federal environmental assessment review processes. The Project took three forms over the course of the environmental assessment. The Halalt had no input in defining the Project, and they had strong objections to it. The Project was amended twice. The final, approved, version only involved one well operating during the winter months. Despite this, the District continued to describe the Project as including pumping for emergency and testing purposes.

The Working Group for the Project, to which the Halalt belonged, had no procedural framework, no clear mandate, no statutory authority, and was not asked for input concerning the proposals to modify the Project or narrowing the environmental assessment. It did not appear that there was an assessment of the strength of their claims. Throughout the environmental assessment process, the Halalt were not provided with information provided to other interested parties that would have informed their participation in the process. Inter alia, they were not informed of the final form of the Project before it was certified. They repeatedly indicated that they did not feel that the consultation was commensurate with the strength of their claims.

Many of the Halalt’s concerns remained outstanding when the Environmental Assessment Report was submitted, when provincial Ministers issued a Certificate for the Project, and when the federal Minister of Environment approved the Project. Construction began shortly thereafter and was completed by the spring of 2010. The Halalt filed the petition giving rise to these proceedings in early September 2009. In February and March 2010, the Halalt conducted a peaceful protest, partly in response to the District’s decision to proceed with the Project

The Supreme Court of Canada dismissed the leave application with costs.

Decisions available here.

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Expertise

Aboriginal Law