Federal Court

Aboriginal Peoples

Judicial review not appropriate course of action to determine whether treaty rights infringed

Respondent BC Hydro submitted project description, which initiated environmental assessment processes. Project was proposed dam and 1,100-megawatt generating station on Peace River, which would flood Peace River Valley if constructed. Joint review panel of British Columbia and federal governments and Minister of Environment determined that significant adverse environmental effects would likely result from construction of project. Governor in Council (GIC) decided that adverse environmental effects were justified in circumstances. Applicants were British Columbia Treaty 8 First Nations whose members exercised constitutionally protected treaty rights within project and surrounding area. First Nations applied for judicial review of GIC’s decision. Application dismissed. Decision of GIC was afforded considerable deference. Judicial review was not appropriate course of action to determine whether treaty rights had been infringed. Evidentiary record that was developed for an action was appropriate basis for court to determine issue of infringement of First Nations’ treaty rights. Infringement of important and fundamental treaty rights required complete evidentiary record to be fairly and reasonably determined. First Nations failed to establish that they had legitimate expectation that GIC would deal with issue of treaty infringement. Crown did not need to determine infringement of First Nations’ treaty rights but they did consider those rights. From beginning of environmental assessment process to its conclusion steps were built into process to ensure that decision-makers were provided with information they reasonably required to make decisions. BC Hydro consulted with First Nations extensively and in good faith. Duty to consult and accommodate First Nations was met and GIC’s decision was reasonable.

Prophet River First Nation v. Canada (Attorney General) (Aug. 28, 2015, F.C., Michael D. Manson J., File No. T-2292-14) 258 A.C.W.S. (3d) 651.

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