A recent appeal by the Nlaka’pamux Nation (in the B.C. Court of Appeal) was upheld because it was determined that British Columba did not adequately meet its duty to consult requirements. The appeal was in regard to the extension of a landfill over land which the First Nation claimed Aboriginal rights and title.
Here’s the decision . Below is an excerpt.
Appeal by the Tribal Council from a decision dismissing its application for judicial review of the respondent’s order under s. 11 of the Environmental Assessment Act regarding the extension of a landfill site. The extension would occupy land over which the Nlaka’pamux First Nation claimed Aboriginal rights and title. The appellant argued that it had a right to be consulted regarding the proposal and that the respondent’s order setting out the methods and procedures for assessment was flawed because it lacked a provision requiring the Environmental Assessment Office or the proponents of the project to consult with the appellant. In response, the Project Assessment Director acknowledged a right to some consultation, and amended the order to provide the appellant an opportunity to be consulted outside of the formal process established by the order. The chambers judge found that the decision of the respondent to exclude the appellant from the working group established pursuant to the order and to amend the order to provide that consultation with First Nations could be done on a government-to-government basis was not a failure on the part of the Crown to discharge its duty to consult with the Nlaka’pamux Nation.
HELD: Appeal allowed. The chambers judge erred in finding that adequate consultation could occur outside the bounds of a s. 11 order. The Crown was not entitled to balance its obligation to consult with its obligation to carry out its statutory duty in an effective manner. The Crown’s duty to act honourably toward First Nations made consultation a constitutional imperative that could not be compromised in order to make the process more efficient. While the respondent did nothing wrong in drafting the initial order and terms of reference, he had ongoing obligations to consult with the appellant. When he became aware of its demands to be brought into the process, it was incumbent upon him to consider whether consultation was required, and, if it was, to establish an appropriate procedure for such consultation. While consultation outside of the environmental assessment was possible, it could not substitute for consultation within the assessment process itself. Denying the appellant a role within the assessment process was denying it access to an important part of the high-level planning process. The order had to set out the scope of any First Nations consultation that was to take place as part of the assessment process. While this did not preclude consultation outside the assessment process, such consultation would not serve as a substitute for consultation within the process.
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