In Da’naxda’xwAwaetlala First Nation v. British Columbia, the First Nation received judicial review by the B.C. Supreme Court of a decision made by the Minister of Environment, seeking to quash the Minister’s decision on four grounds.
The Petitioners, one of them a First Nation, challenge a decision of the Minister of Environment refusing to recommend changes to the boundaries of a protected area, or conservancy, which is within the asserted traditional territory of the First Nation. They sought an amendment to the southern boundary of the conservancy to remove some of the land, in order to allow a hydro-electric power project to be assessed in an environmental review process. The First Nation considered this project to be an economic opportunity consistent with their cultural and ecological interests.
2 The Petitioners are the Da’naxda’xw/Awaetlala First Nation (the Da’naxda’xw) and Kleana Power Corporation (Kleana). In the decision under review, dated April 27, 2010, the Honourable Barry Penner, then Minister of Environment, refused to recommend to the Lieutenant Governor in Council an amendment to the boundary of the Dzawadi/Upper Klinaklini River Conservancy (Upper Klinaklini Conservancy). This conservancy is located north of Knight Inlet on the central coast of British Columbia.
3 The Petitioners bring this application under the Judicial Review Procedure Act seeking relief in the nature of certiorari and declarations. It is not disputed that the Minister’s decision of April 27, 2010 was made in the exercise of his statutory power under s. 3 of the Park Act, R.S.B.C. 1996, c. 344. Their challenge is based on constitutional and administrative law principles. They seek to quash the Minister’s decision on the following grounds:
- a. the decision was in breach of the Crown’s duty to consult and accommodate the aboriginal interests of the Da’naxda’xw;
- b. the decision was in breach of the legitimate expectations of Kleana and the Da’naxda’xw;
- c. the Minister was estopped by prior assurances from denying his recommendation of the amendment;
- d. the decision was an abuse of discretion and unreasonable.
4 The Petitioners seek a declaration that the Minister must recommend to the Lieutenant Governor in Council the amendment requested by them. In the alternative, they seek a declaration that they hold legitimate expectations that the Minister will consider their request, will give effect to his prior assurances to amend the boundary, will take the Petitioners’ interests and their reliance on his prior assurances into account, and will not apply the “Provincial Protected Area Boundary Adjustment” policy.
5 The Crown opposes the Petition on all grounds. It says that there was no duty to consult in this case, and if there was, there was no breach of that duty. It challenges the Petitioners’ assertions that the Minister made any assurances and says that the doctrines of legitimate expectations and public law estoppel do not apply in these circumstances. Finally, the Crown says that the Minister’s decision was a reasonable one made in the proper exercise of his discretion.
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228 The Petitioners have not established that they are entitled to any relief on administrative law grounds but the Da’naxda’xw have established that they are entitled to a remedy for the Crown’s breach of its duty to consult. While it may be obvious, it is important to emphasize that the Crown’s constitutional duty to consult is owed only to a First Nation.
229 In this case, Mr. Glendale is both a councillor of the Da’naxda’xw and a director of Kleana. I have considered his evidence with this in mind, as it is not proper for a corporate entity with First Nation directors (or shareholders) to be the recipient of this constitutional duty. In this case, the evidence clearly shows that the Da’naxda’xw have been actively engaged in consultations with the Crown for many years in respect of the Upper Klinaklini and I am satisfied that they are entitled to be adequately consulted about the requested boundary amendment.
230 The Da’naxda’xw seek an order quashing the Minister’s decision of April 27, 2010, and declaratory relief directing the Minister to recommend to Cabinet that the boundaries of the Upper Klinaklini Conservancy be amended. Alternatively, they seek an order directing the Minister to consult in a government-to-government process.
231 The government submits that the appropriate order in these circumstances is one directing the Minister to reconsider his decision after carrying out the appropriate level of consultation. It says that the order sought by the Da’naxda’xw is akin to mandamus and the jurisdictional prerequisites for the issuance of such an order have not been met, citing Apotex v. Canada (Attorney General), [1994] F.C. 742, aff’d [1994] 3 S.C.R. 1100.
232 The court may quash a decision where it has been made without adequate consultation or accommodation: West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para. 78. It is rare, however, for the court to become involved in directing a particular form of accommodation. In Musqueam Indian Band it was held that the Crown and First Nation should be left to engage in “the broadest consideration of appropriate arrangements”. See also Wii’litswx v. British Columbia (Minister of Forests), 2008 BCSC 1620 at para. 23.
233 The consequence of the Minister’s breach of the duty to consult is that no accommodation of the Da’naxda’xw’s interests was considered. The circumstances here are quite different from those in West Moberly First Nations, where the court found that accommodation which was put in place was not reasonable.
234 I do not consider this an appropriate case to direct the Minister to make the recommendation sought. However, I have concluded that the Da’naxda’xw are entitled to the following relief:
- 1. an order in the nature of certiorari, quashing the Minister’s decision of April 27, 2010;
- 2. a declaration that the Minister has a legal duty to consult with the Da’naxda’xw about their request for an amendment to the boundary of the Upper Klinaklini Conservancy, with a view to considering a reasonable accommodation; and
- 3. a declaration that the Minister failed to fulfill his constitutional duty to adequately consult with the Da’naxda’xw in the course of deciding whether to recommend an amendment to the boundary of the Upper Klinaklini Conservancy to Cabinet.
235 As I have determined, the scope of consultation in this case requires the Minister to consider the Da’naxda’xw’s request in the context of the terms of the June 2007 Collaborative Agreement and the on-going negotiations about a government-to-government process for managing the conservancy and considering boundary amendments, and to provide them with an opportunity to respond to his concerns about the potential negative environmental impacts of the Project. While the Minister is entitled to consider the public interest as described in the government’s policy, this requires something more than the opportunity to make an application within the scope of that policy. It requires an opportunity for some dialogue on a government-to-government basis with a view to considering a reasonable accommodation of the Da’naxda’xw’s interests in allowing the Project to be assessed in the EAO process.
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