Judicial Blueprint For Aboriginal Consultation

Although many major projects have failed to progress due to unsuccessful Aboriginal consultation efforts, recent court cases on the Site C dam in BC have at last provided clear guidance for carrying out a successful Aboriginal consultation process.

Among the (many) struggles endured by project developers in Canada, one of the most significant has been to design a consultation process with Aboriginal peoples that can pass muster with Canadian courts. For almost a generation, the courts have offered only the most general, abstract and ethereal guidance.

Recently however, various courts have reviewed the highly controversial and visible Site C consultation process and after detailed analysis, have universally declared the process followed in that case to be sufficient.1 Although these decisions have been at the trial and appeal level - the Supreme Court of Canada has just reviewed the record and declined to over-rule the lower courts.

This post is not specifically a case comment. The Site C cases raised numerous legal issues which we purposely leave to one side. This post focusses solely on the current judicial view of the appropriate mechanics to be followed in a successful consultation process.

Background

Site C is a dam in northern BC proposed by BC Hydro, a BC crown corporation. If constructed, Site C would flood the Peace River Valley for 83 km between Fort St. John and the Peace Canyon Dam. It would also involve the construction and operation of an 1100 MW hydro-electric generating facility, the realignment of four stretches of Highway 29 where it dips into the Peace River Valley and two 77 km transmission lines running from Site C to the switching yard at Peace Canyon Dam.

Site C would be developed in the heart of the traditional territories of a number of Treaty 8 First Nations and would affect, in total, approximately 29 First Nations to varying degrees.2

Both the federal and provincial governments had jurisdiction over material elements of Site C and both had regulations in place requiring an environmental assessment by the Canadian Environmental Assessment Agency (CEAA) at the federal level, and by the BC Environmental Assessment Office (BCEAO) at the provincial level. To ensure coordination, the federal and provincial governments entered into a Joint Agreement to appoint a Joint Review Panel to oversee the activities of CEAA and the BCEAO; to conduct hearings and to assess the evidence and make recommendations to the two levels of government.

Several of the most affected Treaty 8 First Nations - the West Moberley First Nation and the Prophet River First Nation - did not accept the development of Site C on any terms and declined to enter into benefit agreements or other arrangements with BC Hydro. Despite their opposition, the federal and provincial governments ultimately approved Site C, subject to numerous conditions. The West Moberley and Prophet River First Nations sued to overturn the approvals and attempted to stop development of the project. Among the grounds cited to challenge the Site C approval process was the adequacy of the consultation process.

Adequacy of the Consultation Process

When evaluating the adequacy of a consultation process, the courts have...