BC Environmental Appeal Board Revokes Horn River Basin Water Licence – Part 2 Of 2

On September 3, 2015, the British Columbia (BC) Environmental Appeal Board (the Board) delivered its decision in Chief Gale and the Fort Nelson First Nation v. Assistant Regional Water Manager & Nexen Inc et al (Decision No. 2012-WAT-013(c)), revoking a water licence issued to Nexen Inc. (Nexen) for the purpose of pumping water from Tsea Lake in BC's Horn River Basin for storage and use in oilfield injection (the Licence).

Please see Part 1 of our discussion here.

Issue 2 - Breach of the Crown's Duty to Consult

The First Nation alleged that the Crown failed to ascertain the nature and scope of its Treaty 8 rights, and did not provide it with an adequate opportunity to provide such information. Due to this lack of information, together with the flaws in the technical data, the Crown could not properly assess the potential impacts on the First Nation's treaty rights or engage in meaningful consultation. The First Nation also alleged various procedural failures of the Crown in consultation. In response, the Ministry and Nexen submitted that the First Nation failed to fulfill its reciprocal obligation to express its concerns in a meaningful and substantive way.

Board's Findings

Based on its conclusions under Issue 1, the Board held that the Ministry had insufficient evidence to conclude that the Licence would have no adverse impact on the First Nation's treaty rights. There was also tangible evidence before the Ministry that the 2012 water withdrawals had caused or contributed to certain changes in riparian vegetation and fish habitat that could impact the exercise of treaty rights. However, the Board also found that the actual impact of the Licence on treaty rights was still uncertain, and there was no evidence the First Nation would be unable to continue its traditional activities in the Tsea Lakes area.[1]

The Board acknowledged that the First Nation was partly responsible for failing to express concerns and provide relevant information regarding the specific impacts of the Licence on the exercise of its members' treaty rights. The Board noted that First Nations have a reciprocal obligation to express their interests and concerns to the Crown and to consult in good faith by whatever means available to them. The failure of the First Nation to share relevant information in its possession, over several years of consultation efforts by the Crown and by Nexen, created the risk that its concerns would not be taken into account.[2]

The Board...