The Supreme Court of Canada dismissed a leave application filed by the Innu of Ekuanitshit in regards to the 2014 order of the Federal Court of Appeal (2014 FCA 189) affirming a lower court decision relating to approval of the Lower Churchill Hydroelectric Generation Project.

In April 2013, the Federal Court dismissed an application for judicial review brought by the Innu of Ekuanitshit in relation to an Order in Council made pursuant to s. 37(1.1) of the Canadian Environmental Assessment Act approving the federal government’s response to a joint review panel report concerning the Project. The Court held that the application for judicial review was premature since it was filed after stage four of the five-stage CEAA process. In any event, the consultation process undertaken to date was reasonable. The Court also held that the applicant’s challenge to the scoping issue was statute-barred. The decision of Mr. Justice Scott (2013 FC 418) was summarized in our e-Newsletter of 30 May 2013.

In August 2014, the Court of Appeal held that the chambers judge made no reviewable error in regards to whether the Governor in Council and the responsible authorities complied with the CEAA. The chambers judge also did not err in his findings about the Crown’s duty to consult. The consultation conducted to date was proportionate to the strength of the Appellant’s claim and the seriousness of the potentially adverse impacts of the Project. The Court of Appeal affirmed that the Crown’s duty to consult could be satisfied, in part, through the environmental impact assessment process. The decision of the Federal Court of Appeal was summarized in our e-Newsletter of 20 November 2014.

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

Environmental law – Environmental assessment – Consultation of Aboriginal peoples – Project planning construction of hydroelectric dams – Timing and adequacy of consultation – Requirements for authorizing project with environmental impact – Whether consultation should be held at time of strategic, higher-level decision or later, after issuance of regulatory permit – Whether compliant with environmental assessment regulations to authorize project when no construction date set

In 2006, Newfoundland and Labrador Hydro, now Nalcor Energy (“Nalcor”), announced its intention to build two hydroelectric plants on the Churchill River, Newfoundland and Labrador, at Gull Island and Muskrat Falls. The construction of the plants would result in inundating an area of 126 km2.

The project was subject to a provincial and a federal environmental assessment performed by the Joint Review Panel. From March 2009 and April 2011, the Panel gathered submissions from various stakeholders, including the applicant, the Conseil des Innus de Ekuanitshit, on the environmental impact of the project proposed by Nalcor. Moreover, in March and April 2011, the Panel held public hearings during which various stakeholders, including the applicant, made submissions. In its report, the Panel found that the project was likely to cause significant adverse environmental and socioeconomic effects, but that the potentially significant economic benefits that it would generate, although uncertain, would compensate for these risks. The Report also made more than 80 recommendations about the mitigation measures and the additional information that would be required on some aspects so that the Project could move forward. According to the Panel, the Project’s impact on Quebec Aboriginals land and resource uses, after implementation of the mitigation measures proposed by Nalcor and those recommended by the Panel, would be adverse, but not significant.

In reply to the Panel’s report, the federal government found that the energy, socioeconomic and environmental benefits of the hydroelectric plant project outweighed its adverse environmental effects. On March 12, 2012, the Governor in Council adopted an order approving the federal government’s response and authorizing, under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 [Repealed, 2012, c. 19, s. 66 ] (the “CEEA”), Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada to follow up on the Panel’s report. Three days later, and in accordance with s. 37(1) of the CEEA, Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada (“the responsible authorities”) decided that they would allow the implementation of the project if certain environmental mitigation measures were applied.

The applicant filed an application for judicial review with the Federal Court challenging the lawfulness of the order dated March 12, 2012, and the decision made by the responsible authorities allowing the implementation of the hydroelectric project.

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

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law