Written By David Bursey, Radha Curpen, Venetia E.K. Whiting and Philippa Kentish
In 2010, the BC Environmental Assessment Office (EAO) entered into an Equivalency Agreement (Agreement) with the NEB. The Agreement stated that the NGP did not require a provincial assessment under the BC Environmental Assessment Act (EAA) and could proceed without an EAA certificate (EAC). The NEB and the Canadian Environmental Assessment Agency formed a Joint Review Panel in 2010. After the federal review, the Project was approved with its 209 conditions on June 18, 2014.
The Court held that the Agreement could not relieve the Province of its obligation to issue a decision under the EAA, and its related duty to consult affected First Nations. Three broad implications emerge from the Court's analysis.
B.C. Cannot Rely on the Federal Decision
The Court decided that sections 27 and 28 of the EAA allow the EAO to rely on the federal environmental assessment but not the federal decision. The Agreement was invalid to the extent that it purported to remove the need for an EAC for the Project and a decision by the Province under section 17 of the EAA. The Court found the Legislature intended for the Province to maintain its decision-making authority for projects that may have a significant adverse effect.
Province has Little Guidance on How to Exercise its Limited Authority
The Court agreed that while the Province could not refuse to issue an EAC, it nonetheless has the constitutional right to regulate the "territorial environmental impacts" of the interprovincial undertaking, as the "dominant characteristic" of the EAA is the regulation of environmental effects in the Province. The Court decided that the Province may add further conditions to an EAC that narrow the scope of the federal approval and its conditions but there are limits to the conditions that the Province may impose. Conditions may only be imposed so long as those conditions do not "impair" or create an "operational conflict" with the federal approval. In effect, the Province is left to exercise a small fragment of its section 17 EAA authority, with no clear guidance on how to do so.
Crown's Duty to Consult Can Be Triggered by Inaction
The Province did not breach its duty to consult the First Nations before signing the Agreement in 2010. However, the Province breached its duty by failing to consult with the Coastal First Nations and the Gitga'at First Nation between December 2013 and June 2014, when it knew that the Province's concerns about the NGP which were shared by the First Nations had not been substantially addressed and the Province could have terminated the Agreement. Here, Crown inaction, instead of "contemplated conduct", triggered the Province's duty to consult. This case represents an expansion of existing consultation triggers and may open the door to a new line of duty to consult claims.
This decision has profound implications for reconciling provincial and federal jurisdiction over the environmental review of interprovincial projects, and the related Crown duty to consult affected First Nations. It also casts more uncertainty over the NGP, and any inter-provincial project that must be reviewed.