Upper Nicola Indian Band v. British Columbia (Environment), 2011 BCSC 388
On March 31, 2011, Mr. Justice Savage issued a decision in Upper Nicola Indian Band v. British Columbia (Environment), 2011 BCSC 388, finding that "the 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."
At issue before the Court were two petitions challenging the Environmental Assessment Certificate ("EAC") for the Interior to Lower Mainland Transmission Project (the "ILM Project"), a 500 kV, 250 km transmission line from Merritt to Coquitlam. The Petitioners were the Nlaka'pamux Nation Tribal Council, the Upper Nicola Indian Band and the Okanagan Nation Alliance.
The Petitioners argued that the duty to consult with respect to the ILM Project required consultation about the existing, ongoing and future impacts of the existing transmission lines in the area for two reasons.
First, the Petitioners argued that the scope of the constitutional duty to consult about a current activity must include impacts of past failures to consult, including ongoing impacts. This argument was based on the Petitioners' interpretation of the Supreme Court of Canada's decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Carrier Sekani) and on case law predating Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.
Second, they argued that the duty in this case included consultation on ongoing and future impacts of the existing lines because the Crown committed to engage in concurrent consultation on the those lines as part of the environmental assessment of the ILM Project. This argument was based on an allegation that the Ministers for the Ministry of Aboriginal Relations and Reconciliation ("MARR") and the Ministry of Energy, Mines and Petroleum Resources ("MEMPR") broke a commitment to undertake an expedited process to consult about the aggregate impacts of the ILM Project and the existing lines.
Justice Savage dismissed the petitions, finding that the scope of the duty to consult did not include consultation on the impacts of the existing lines and that there had been no commitment to consult on the existing or ongoing impacts of the existing lines.
Fasken Martineau advised British Columbia Hydro & Power Authority with a team that included Sandy Carpenter, Chuck Willms and Katey Grist.