Prophet River First Nation et al. v. Canada (Attorney General) et al., [2015] F.T.R. TBEd. SE.054

• Judge: Manson, J.
• Court: Federal Court (Canada)
• Case Date: July 22, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. SE.054;2015 FC 1030

Prophet River First Nation v. Can. (A.G.), [2015] F.T.R. TBEd. SE.054

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. SE.054

Prophet River First Nation and West Moberly First Nations (applicants) v. Attorney General of Canada, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport and British Columbia Hydro and Power Authority (respondents)

(T-2292-14; 2015 FC 1030)

Indexed As: Prophet River First Nation et al. v. Canada (Attorney General) et al.

Federal Court

Manson, J.

August 28, 2015.

Summary:

A Joint Review Panel of the British Columbia and Federal Governments and the Minister of the Environment (Minister) determined significant adverse environmental effects would likely result from the construction of the Site C Clean Energy Project (a dam and hydrelectric generating station) on the Peace River in British Columbia. The matter was referred to the Governor in Council (GIC), under the Canadian Environmental Assessment Act (CEAA 2012). The GIG determined that the significant adverse environmental effects were "justified in the circumstances" (s. 52(4)) of the CEAA). The Prophet River First Nation and West Moberly First Nations (applicants) applied for judicial review. The following issues arose:

"A. Did the GIC have the jurisdiction under section 52(4) of the CEAA 2012 to decide whether the project would constitute an infringement of the Applicants' treaty rights, and should the GIC have considered this issue in determining that the Project was justified?

"B. Did the Applicants have a legitimate expectation that the issue of infringement would be addressed by the GIC, based on representations that had been made to them by the Agency?

"C. Has the duty to consult and accommodate the Respondent First Nations been met in this case?

"D. Was the GIC's decision and Order in Council under section 52(4) of the CEAA 2012, that the significant adverse environmental effects the Project is likely to cause are justified, within the range of reasonable outcomes?"

The Federal Court dismissed the application, holding that judicial review was not the appropriate course of action to determine whether the applicants' treaty rights were infringed, rather the matter should be pursued in the form of an action. The applicants failed to establish that they had a legitimate expectation that the issue of treaty infringement would be dealt with by the GIC. However, while the Crown did not need to determine infringement of the applicants' treaty rights, the parties involved did consider those rights, did not ignore the impact of the project on those treaty rights or find that the negative impact could be mitigated, and did assess the cumulative effects of the prior existing two dams on the historical rights of the applicants.

Editor's Note: This application was heard consecutively with Federal Court Action T-2300-14, Peace Valley Landowner Association v. Canada (Attorney General) Canada et al. reported [2015] F.T.R. TBEd. OC.005; 2015 FC 1027.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - See paragraph 54.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - See paragraphs 55 to 72.

Pollution Control - Topic 1858

Environmental assessments or impact studies - Environmental assessment legislation - Where project referred to Governor in Council to determine if significant adverse environmental effects are justified in the circumstances - See paragraphs 39 to 72.

Counsel:

Allisun Rana and Emily A. Grier, for the applicants;

John Gailus and Matthew Nefstead, for the applicants;

Judith Hoffman, Rosemarie Schipizky and Kelly Keenan, for the respondents, Attorney General of Canada, Minister of the Environment, Minister of Fisheries and Oceans and Minister of Transport;

Mark Andrews, QC, Charles Willms, Bridget Gilbride and Patrick Hayes, for the respondent, British Columbia Hydro and Power Authority;

Jessica Orkin, for the intervenor, Amnesty International.

Solicitors of Record:

Rana Law, Vancouver, British Columbia, for the applicants;

Devlin Gailus Westaway, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondents, Attorney General of Canada, Minister of the Environment, Minister of Fisheries and Oceans and Minister of Transport;

Fasken Martineau, Vancouver, British Columbia, for the respondent, British Columbia Hydro and Power Authority;

Goldblatt Partners, LLP, Vancouver, British Columbia, for the intervenor, Amnesty International.

This application was heard in Vancouver, B.C., on July 22, 2015, before Manson, J., of the Federal Court, who delivered the following decision in Ottawa, Ontario, on August 28, 2015.