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Supreme Court of Canada Will Not Hear "Site C" Appeals

Prophet River First Nation v. Canada (Attorney General), Supreme Court of Canada, Case No. 37495 (McLachlin C.J.C., Wagner and Gascon JJ.), 29 June 2017; Prophet River First Nation v. British Columbia (Minister of the Environment), Supreme Court of Canada, Case No. 37510 (McLachlin C.J.C., Wagner and Gascon JJ.), 29 June 2017

The Supreme Court of Canada dismissed leave applications filed by two Treaty 8 First Nations in relation to orders of the Federal Court of Appeal and the British Columbia Court of Appeal about the "Site C" dam project in northeastern British Columbia. In both cases, the appellate courts had upheld lower court decisions in which the judicial review proceedings brought by the First Nations, concerning approvals for the project, were dismissed.

As part of a harmonized environmental assessment process, a Joint Review Panel was tasked with conducting the environmental assessment. In 2014, the JRP reported that the project would likely lead to significant adverse environmental effects that could not be mitigated. The federal Governor in Council determined that these significant adverse effects were "justified in the circumstances" within the meaning of section 52(4) of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, and authorized the project through a federal Order in Council. On the provincial side,an Environment Assessment Certificate was issued approving the project, subject to many conditions.

The appellant First Nations commenced a judicial review proceeding in relation to both decisions. In the Federal Court, the judicial review application was dismissed on the basis that the Crown had met its duty to consult and accommodate: 2015 FC 1030. Further, there was no requirement on the part of the Governor in Council to determine the appellants' treaty rights and whether such rights would be unjustifiably infringed. The Federal Court of Appeal dismissed an appeal from this order: 2017 FCA 15.

The B.C. Supreme Court dismissed the appellants' challenge to the EA certificate: 2015 BCSC 1682. The provincial Ministers lacked the jurisdiction to determine whether the project would unjustifiably infringe treaty rights. Further, the consultation in this case was adequate. The B.C. Court of Appeal upheld this decision (2017 BCCA 58), agreeing with the chambers judge that the Ministers were not required to determine whether the project constituted an unjustifiable infringement of treaty rights. The Court of Appeal also concluded that the consultation was adequate in this case.

The applications by the Treaty 8 First Nations for leave to appeal these decisions were dismissed with costs.