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Province Cannot Abdicate its Decision-Making Powers to the NEB

21-Jan-16

By Jessica Proudfoot

On January 13, 2016 the British Columbia Supreme Court determined that the Province breached its duty to consult the Gitga'at First Nations in respect of Enbridge’s Northern Gateway pipeline. The court found that a province cannot rely on federal efforts to satisfy its duty to consult with First Nations. Interestingly, the Court also found that while the provincial government may rely on federal environmental assessments to make its decisions, it cannot abdicate its decision-making authority altogether.

As an interprovincial undertaking, the Northern Gateway pipeline (and related projects) fall under federal jurisdiction. However, the proposed pipeline disproportionately affects BC – the route will traverse the entire province, some 660 kilometers, and cross more than 800 provincial watercourses. The marine terminal will also have substantial impact on BC’s coastal lands and water. This engages the Province’s shared jurisdiction over the environment.

In an effort to avoid redundancy in the approval process, the Province and the National Energy Board (the “NEB”) entered into an agreement intended to promote a “coordinated approach”. More specifically, the agreement provided that the Province would defer to the NEB’s environmental assessment instead of conducting its own assessment, and issuing its own environmental assessment certificate, as would ordinarily be required under the Province’s Environmental Assessment Act, SBC 2002, c-43 (s 17). Although the agreement could be terminated on notice, the terms of the agreement would otherwise prevent the Province from imposing its own conditions on the approval of the pipeline and related projects.

The NEB subsequently constituted a Joint Review Panel, responsible for completion of the NEB’s environmental assessment. The Joint Review Panel consulted with the Province and affected First Nations, including the Gitga'at. The adequacy of this federal consultation was not challenged.
On June 17, 2014 the federal government approved the pipeline, subject to the fulfillment of 209 conditions. Notwithstanding that four of B.C.’s five “minimum requirements” for approving the project were not included in the conditions, the Province did not terminate its agreement with the NEB.

The Gitga'at First Nations (and other petitioners) complained that by agreeing to waive its discretion to issue an environmental assessment certificate, the Province could no longer protect the interests of the Province, or meaningfully consult and accommodate First Nations. The Court agreed. The Honourable Madam Justice Koenigsber declared the agreement invalid to the extent that it removed the Province’s discretion to issue an environmental assessment certificate pursuant to section 17 of the Province’s Environmental Assessment Act and ordered the Province to consult the with Gitga'at about the potential impacts of the pipeline on areas of provincial jurisdiction.

This case serves as a useful reminder that even where provincial and federal environmental jurisdictions overlap, each government must:

  • retain and exercise its own decision-making discretion (unless the legislation otherwise permits), and
  • discharge its own duty to consult and accommodate First Nations.

A copy of the decision, Coastal First Nations v British Columbia (Environment), can be found here.

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