In November, 2012, the BC Court of Appeal released its judgment in the case of Halalt First Nation v. British Columbia, 2012 BCCA 472. The Court of Appeal overturned the decision of the trial judge, who held that the provincial Crown had failed to consult with and accommodate the Halalt First Nation (“HFN”) in connection with an environmental assessment. The environmental assessment was initiated by the District of North Cowichan (the “District”), which sought approval for a groundwater extraction project, with the goal of providing a cleaner, more reliable source of water for the community of Chemainus. As a consequence of losing at trial, the District was prohibited from operating its wells. The trial judge’s decision is discussed in the Winter 2012 issue of LoGo Notebook.
The case, and the disagreements between the trial judge and the Court of Appeal, illustrate the complex interplay between several essential concepts: the strength of the claim to an aboriginal right or title; the potential impact of the Crown’s decision or action upon the right or title claimed; and the level of consultation and accommodation required. The need for accommodation can only be determined through the process of consultation. Whether or not consultation is required, and if so, what level of consultation is required, must be determined by assessing the strength of claim, and the potential impact. The stronger the claim, and the bigger the potential impact, the deeper the consultation process must be.
In this case, there was never any question that “deep” consultation was required. HFN has a strong claim to aboriginal rights and title with respect the Chemainus River and the aquifer. However, the evidence surrounding the consultation that actually took place is complex, and it is fair to say that neither level of court had an easy decision to make. The factual record for the case is extremely lengthy and detailed, and does not make for light reading.
The trial judge held that the requirement for deep consultation had not been met, for two main reasons. One was that the scope of the project for which consultation did occur was reduced over time to reflect winter pumping only, while in the trial judge’s view the Certificate of Approval effectively set the stage for year-round pumping, with less than a full environmental assessment being required to shift to year-round pumping in the future. In other words, the consultation did not take into account the true potential impact of the Crown’s decision.
The other main reason for the trial judge’s decision was that modifications to the scope of the project were made without consulting HFN first. The scope of the project was reduced to two well sites, with winter pumping only, at the request of the District, once it became clear the Crown would be unlikely to approve a project consisting of three well sites and year-round pumping. The Crown argued that those modifications constituted appropriate accommodation of HFN’s interests, flowing from deep consultation, even though HFN was only consulted about them after they were made. The trial judge did not accept that argument.
The Court of Appeal, in contrast, took the view that the Certificate of Approval is limited to winter pumping, and that any expansion of pumping by the District would require further assessment and consultation. Therefore, the Court of Appeal held that the consultation was properly limited to winter pumping.
The Court of Appeal also held that it was not necessary for HFN to be consulted prior to modifications being made to the scope of the project. It was sufficient for HFN to be advised of modifications once they had occurred, and for HFN’s opinions to be sought at that time.
Leaving aside the question of the actual scope of the Certificate of Approval, which is more of an interpretation issue, the fundamental issue in this case is how significant a role HFN was entitled to play in the assessment process. To HFN, and to many first nations, environmental issues are inextricably bound with issues of aboriginal rights and title. From HFN’s perspective, it should have been a full participant in the assessment process, and its rights and interests should have been given greater deference. The trial judge agreed that the Crown’s efforts were not good enough.
The Court of Appeal held, as a matter of law, that formal participation by first nations in an environmental assessment may not be sufficient to discharge the Crown’s obligations, while a lack of formal participation may not be insufficient. In other words, the issue of formal participation is not determinative one way or the other. The entire context must be examined in order to determine whether or not adequate consultation and accommodation have taken place. The Court of Appeal held, based on the entire context, that a less formal means of participation was sufficient in this case.
It is striking that the trial judge and the Court of Appeal took such different views of both the process and the result in this case. HFN has now made an application seeking leave to appeal the case to the Supreme Court of Canada, and it would be a welcome development if some clarity could be brought to the issues, whatever the final result. Stay tuned for further developments.