Upper Nicola Indian Band v. British Columbia (Minister of Environment) – Duty To Consult and Honour of the Crown Defined

Several Canadian First Nations (Upper Nicola, Okanagan Nation Alliance, Nlaka’pamux) recently applied for judicial review of a decision made under the Environmental Assessment Act relating to the construction of a 250 km (that’s 155.3 miles for all you Imperial system dinosaurs) high voltage transmission line through lands claimed by the various Aboriginal petitioners.  The judge ultimately rejected the First Nations’ arguments.  The decision is here

The Petitioner First Nations argue that the constitutional duty to consult was breached in two ways:

1. the Province and BC Hydro have taken an overly narrow view of their duty to consult. The Petitioner First Nations say that the scope of the constitutional duty to consult, once engaged by current actions, includes existing and ongoing impacts of past failures to consult. The Province has refused to consider aggregate impacts during the EA process, offering consultation and accommodation only on impacts which will arise as a result of the new ILM Project and

2. even if the constitutional duty to consult is not as broad as suggested by the Petitioner First Nations, on the facts of this case the Crown must engage in consultation on ongoing and future impacts of the Existing Lines as part of the EA process because the honour of the Crown is engaged. The Petitioners First Nations say the Crown committed to engage in concurrent consultation as part of the EA process on past claims and ongoing rights infringements related to past actions and should be required to fulfill that commitment.

The constitutional duty to consult does not apply to the larger historic impacts of previous works, or the ongoing existing impacts arising from previous decisions, for which there are other remedies. The subject of the right of consultation is the impact on the claimed rights of the current decision under consideration.