On Thursday, June 30th, the Federal Court of Appeal overturned a decision made by Canada to approve the Enbridge Northern Gateway Project.[i] Cabinet has been given three months to decide whether or not to dismiss Enbridge’s application outright or to consider new information and work towards fulfilling the Crown’s duty to consult.
The core of the ruling[ii] addresses questions relevant to both the Crown’s duty to consult and the environmental assessment (EA) process that the Crown uses to fulfill this duty. Indeed, the ruling spends much time discussing the common failings of the EA and consultation processes that our clients across Canada have been seeking to change on for the past several years[iii]. In confirming these longstanding problems, the decision provides an important opportunity to seek substantive change in this flawed system.
The failings of process
The judgement centres on four[iv] failings identified by the First Nations applicants that all occurred during Canada’s “Phase IV” of the consultation process, which started after the Joint Review Panel (JRP) issued their report:
- The Joint Review Panel Report left too many issues affecting First Nations to be decided after the Project was approved; the duty must be fulfilled by cabinet before a certificate is issued.
Timing is important: this is the highest order decision that “sets into motion risks to… First Nations’ Aboriginal rights”[v]. This issue concerns many of our clients. Design of project components and activities[vi], assessment of traditional use information, and clearly developed measures to avoid or reduce specific effects, are often deferred to a future, post-certificate stage in the EA. The result is a high degree of uncertainty as to whether or not the Crown has enough information to make an informed decision on likely residual effects to—let alone protection of—Aboriginal rights and interests at this crucial decision point.
- The consultation process was too generic.
Cabinet and the JRP looked at First Nations as a whole instead of addressing the specific concerns of each First Nation. The judges emphasized that at Phase IV, the consultation process must use specific evaluations, not conceptual ones, and ensure that responses and (as appropriate) accommodations are equally specific and not generic. This common failing of EA is often an issue for our clients. Despite the fact each Nation will experience unique effects—and may have different ways of assessing effects—federal effects assessments are only just starting to assess effects on a Nation-by-Nation basis, and still rely on generic mitigations.
- After the Report of the Joint Review Panel was finalized, Canada failed to consult adequately with First Nations about their concerns and failed to give adequate reasons.
At this stage of the EA, there is typically an opportunity to comment on the EA report and receive a response. When this step is completed well, there is an opportunity to shape the information used by Cabinet to make their final decision. Usually, however, there is very little time for each Nation to digest the views of the Panel, which are often being expressed for the first time. Moreover, government responses to concerns raised by First Nations regarding the EA report often lack detailed justification.
- Canada did not assess or discuss title or governance rights and the impact on those rights. [vii]
This was a major gap in the process, but was not a commonly examined factor in assessments until the Tsilhqot’in Supreme Court decision[viii] was released in 2014. Today, it remains of the weakest elements in EA, with no acceptable method or criteria that can be simply added into existing EA processes. A few ad hoc collaborative approaches emerging in BC are beginning to find new frameworks for addressing this critical concern.
In the next part of our two-part blog, we will explore how these failings are being addressed in EA today.
Firelight provides policy, governance, regulatory and EA support – including assistance on developing input to public policy consultations in BC and elsewhere.
For further information, contact:
Lindsay Galbraith, Senior Researcher: Environmental Assessment Support
Alistair MacDonald, Lead: Environmental Assessment Support
[i] The decision is the result of 18 separate applications for judicial review submitted by Gitxaala Nation, Gitga’at First Nation, Haisla Nation, the Council of the Haida Nation, Kitasoo Xia’Xais Band Council, Heiltsuk Tribal Council, Nadleh Whut’en, Nak’azdli Whut’en, among other applicants.
[ii] A copy of the decision is available online at here: http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/145744/index.do
[iii] For a more in-depth discussion of these issues, please contact us for a copy of our book chapter co-authored by Dr. Ginger Gibson, Dr. Lindsay Galbraith, and Alistair MacDonald in the 2016 edition of Environmental impact assessment: Process, practice, and critique.
[iv] The judges outlined eleven flaws identified as salient by applicant First Nations and discussed them all in the ruling, as per paragraph 191, but they only dealt with four flaws all in relation to implementation of Phase IV of the consultation process.
[v] Paragraph 237 of the decision.
[vi] Especially so-called “temporary” or “ancillary” features such as roads, large clearings, camps sites, among many others that often are anything but temporary in their effects.
[vii] These flaw are discussed in paragraphs 229-324 in the decision.
[viii] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, available here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do