B.C. Court of Appeal Review of the BC Environmental Assessment Process – Case Comment on Fort Nelson First Nation v. British Columbia

In Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, the B.C. Court of Appeal recently considered three issues involving the Reviewable Projects Regulation under B.C.’s Environmental Assessment Act:

1. 1. whether a letter from the Environmental Assessment Office (“EAO”) confirming a proponent’s interpretation of the Regulation is a judicially reviewable “decision”;
2. 2. the interpretation of the threshold to trigger a provincial environmental assessment of  a proposed sand and gravel pit; and
3. 3. whether the EAO’s communication to the proponent could amount to “Crown conduct” that triggers a Crown duty to consult with potentially affected Aboriginal peoples.

Takeaways.

1. 1. A confirmation by the EAO that a project does not meet the threshold for environmental assessment is not a decision subject to judicial review. Proponents remain responsible under the Act for knowing whether their project is reviewable.
2. 2. The EAO’s interpretation of the threshold in the Regulation was reasonable — the term “production capacity” does not include waste material. This provides certainty to mining proponents about the actual threshold for environmental assessment.
3. 3. The interpretation of a regulation, standing alone, does not attract the Crown’s duty to consult with Aboriginal peoples. This provides both the Crown and project proponents with certainty, and avoids the tension that would arise if legislation were interpreted and applied differently in different areas of the province as a result of Aboriginal consultation.

Read full article here.

Laura Duke & Jennifer Nyland – Project Law Blog – January 5, 2017.