Northern Gateway: BC Supreme Court Rules That British Columbia Must Issue Its Own EA Decision And Consult First Nations

In Coastal First Nations v British Columbia (Environment), 2016 BCSC 34, the court decided British Columbia must issue its own environmental decision and consult First Nations on the Northern Gateway Project (NGP), instead of deferring to the federal review and consultation. This decision has profound implications for reconciling provincial and federal jurisdiction over the environmental review of interprovincial projects, and the related Crown duty to consult affected First Nations. While the decision casts more uncertainty over the NGP, it also affects any resource development project that involves a harmonized federal/provincial review.

Background

At the centre of the case was the 2010 Equivalency Agreement (Agreement) that the British Columbia Environmental Assessment Office (EAO) entered into with the National Energy Board (NEB). The EAO agreed that the NEB (federal) review "constitutes an equivalent assessment" to a provincial assessment under the BC Environmental Assessment Act (EAA). The Agreement stated that the NGP did not require assessment under the EAA and could proceed without an EAA certificate (EAC). The Agreement also allowed the EAO to terminate the agreement upon 30 days' notice but any approval given by the NEB before termination would remain in effect.

The NEB and the Canadian Environmental Assessment Agency formed a Joint Review Panel (JRP) in 2010. The JRP undertook the federal review and issued its report in December 2013. The federal cabinet issued its decision and order on June 17, 2014, accepting the project and directing the NEB to issue a Certificate of Public Convenience and Necessity (CPCN). The NEB issued the CPCN with its 209 conditions on June, 18 2014.

The EAO relied on the Agreement and did not assess the NGP under the EAA. The Province participated in the federal JRP review and took the position that the NGP must meet five conditions before the Province would support the NGP. The Coastal First Nations also participated in the JRP review and opposed the NGP.

Court Decision

The court concluded that the Agreement could not relieve the Province of its obligation to issue a decision under the Environmental Assessment Act, and the related duty to consult affected First Nations. To reach this conclusion, the court's analysis touched on several broad themes.

Reconciling Federal and Provincial Jurisdiction Over Interprovincial Projects

Enbridge argued the NGP was an interprovincial undertaking, and therefore the...