The intersection between environmental impact assessment law and the Crown s duty to consult and accommodate aboriginal

1. The intersection between environmental impact assessment law and the Crown’s duty to consult and accommodate aboriginal peoples Nigel Bankes ndbankes@ucalgary.ca Faculty of Law The University of Calgary May 14, 2009

2. Outline The nature of the intersection with EA procedures and some relevant questions A primer on the duty to consult and accommodate The case law Some conclusions JoAnn will cover implications for practice

3. Intersections with EA EA is a procedure for integrating environmental & other concerns into government decision-making It is project based and project triggered Many projects that trigger EAs will also trigger the duty to consult Both processes have a large procedural content and may cover similar ground But ……. duty to consult more than just projects, & accommodation goes beyond process and mitigation

4. The questions To what extent can the Crown (and project proponents) rely upon EA procedures to discharge the Crown’s duty to consult and accommodate? How does the Crown’s duty to consult and accommodate apply in the context of the design and application of EA procedures? To what extent can an energy or other regulator defer consultation issues to an EA forum? Is there a duty to consult and accommodate as part of the EA process?

5. The duty to C & A The key general cases Haida Nation, Taku River, Mikisew Cree (SCC) Source of the duty? Who owes the duty? Trigger to the duty? Content of the duty?

6. Source of the duty The duty is rooted in the honour of the Crown It is a corollary of the Crown’s acquisition of sovereignty It is part of the unwritten constitution It is no longer considered to be grounded exclusively in s.35 of the Constitution Act and the concept of justifiable infringement: Haida Nation

7. Who owes the duty? The duty is owed by the Crown Federal and provincial & agents of the Crown Private industry does not owe a duty to consult and accommodate but the Crown may delegate at least some consultation obligations to industry. JoAnn Regulatory boards? Hydro Quebec

8. Trigger The threshold is low “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” Haida Nation

9. Content The content of the duty to consult and accommodate depends upon the circumstances and in particular depends on two variables:(1) a preliminary assessment of the strength of the case supporting the claim of a right or title, and (2) the seriousness of the potentially adverse effect upon the right or title claimed. No veto Idea of “demonstrable integration” Halfway River FN

10. The case law on the intersection of EA and the duty to consult and accommodate Taku River Tlingit First Nation v. British Columbia Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) Dene Tha’ First Nation v. Canada (Minister of the Environment) Ka’a’Gee Tu First Nation v. Canada (Attorney General) Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) Kwikwetlem First Nations v. British Columbia (Utilities Commission) Brokenhead Ojibway (Keystone PL)

11. Taku River Tlingit Mining project Subject to review under BC EAA TRTFN had significant concerns especially with respect to the access road A strong prima facie case Potential adverse effect was “relatively serious” The SCC held that the procedures followed did serve to discharge the Crown’s obligation Why?

12. TRTFN – why? The record showed significant involvement of TRTFN throughout the process The BC EAA at the time called for the creation of a project committee & TRTFN involved The project committee is the “primary engine driving the process” Special studies commissioned to address TRTFN concerns Act has since been amended; no project committees; very limited ref to First Nations (Kwikwetlem) Only reference is with respect to ToR where FN are mentioned along with everybody else.Only reference is with respect to ToR where FN are mentioned along with everybody else.

13. Dene Tha’ The EA design & structuring case The Mackenzie Gas Project, pipeline terminates just inside Alberta Extensive consultation with First Nations and Inuvialuit and land claim based institutions in NWT led to the JRP and aboriginal representation on the JRP Dene Tha’ (T8) have reserves in Alberta but traditional territory in NWT No effective consultation Consultation must extend to the structuring of the EA procedure (e.g. choice of procedure, ToR etc)

14. Ka’a’Gee Tu First Nation MVRMA case; Paramount, Cameron Hills, NWT KGTFN fully consulted by the Review Board during assessment process Review Board recommended 17 mitigating measures (a good example of demonstrable integration) MVRMA contains a consult to modify procedure if Minister\NEB does not accept KGTFN excluded from consult to modify Crown breached duty to C & A Crown can rely upon an EA procedure such as that provided under the MVRMA but will not be able to do so if, without more, it rejects\modifies mitigation measures proposed to address First Nation concerns

15. Kwikwetlem Transmission line project Subject to review under both BC EA procedures and the BCUC The BCUC refused to assess the adequacy of consultation procedures Argued that this would be addressed as part of the EA procedure BCCA held that these were two separate procedures addressing different matters and that each decision-maker needed to assess the adequacy of the C & A process as part of its procedure

16. Kwikwetlem on the BC EAA The most significant differences between the former and the current Act are the omission of a purposes section, …, and the absence of provisions mandating participation of First Nations. The notion that the interests of First Nations are entitled to special protection does not arise in the current Act.  As well, the word “cultural” has been omitted from the list of effects to be considered in the assessment process.  Perhaps most importantly, the EAO is no longer required to establish a project committee. ….  Chief Justice McLachlin wrote in Taku River, that “[t]he project committee becomes the primary engine driving the assessment process.” Does this overstate the case?

17. Brokenhead Ojibway T1 First Nation Keystone PL project; largely within TCPL RoW NEB recommendation of CPCN to GiC JR of GiC decision Duty to C & A at low end of spectrum (no nexus) & discharged by Enbridge and the NEB? Strong endorsement of idea that existing procedures may satisfy Some interesting comments on cumulative effects

18. EA legislation and guidelines EA legislation and regulations rarely addresses duty to consult explicitly But these matters are addressed in Crown consultation guidelines and are carried through into project ToRs Consultation obligations and duty to keep record

19. The questions See paper at 40 To what extent can the Crown (and project proponents) rely upon EA procedures to discharge the Crown’s duty to consult and accommodate? How does the Crown’s duty to consult and accommodate apply in the context of the design and application of EA procedures? Dene Tha’ To what extent can an energy or other regulator defer consultation issues to an EA forum? Kwikwetlem Is there a duty to consult and accommodate as part of the EA process? Yes cannot hide behind Hydro Quebec