On January 13, 2016, the British Columbia Supreme Court released its decision in Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34. The judgment is the first in a line of approximately 20 separate legal challenges against the Northern Gateway Pipeline. In finding for the Coastal First Nations and Gitga’at First Nation, the Court held that a 2010 provincial-federal Equivalency Agreement (the “Agreement”) was invalid because it removed the Province’s role of issuing an Environmental Assessment Certificate for the pipeline. Additionally, the Court found that the Province breached its duty to consult Coastal First Nations (CFN) and the Gitga’at First Nation about the Agreement.
Northern Gateway Pipeline Ltd. (NGP) claimed that this interprovincial pipeline was a vital element of a federal work and undertaking, and fell within exclusive federal jurisdiction. It argued that any requirement that British Columbia approve the project was unconstitutional, based on doctrines of pith and substance, inter-jurisdictional immunity and paramountcy.
The Court rejected NGP’s “extreme position” and supported the trend towards cooperative federalism, especially regarding the environment, an area of shared jurisdiction. Judge Koenigsberg wrote that British Columbia should have jurisdiction to regulate environmental concerns since the proposed project will undisputedly have significant adverse effects that, “disproportionately impact the interests of British Columbians.” The Court agreed with CFN that while the BC Environmental Assessment Act can work with federal legislation to avoid duplicating assessments, nothing in the Act permits the Province to entirely abdicate its responsibility for review and approval of projects within its borders.
Judge Koenigsberg’s decision upholds provincial responsibility to evaluate the pipeline through an Environmental Assessment Certificate, and issuing that certificate with or without conditions. However, the judgment does not say what would occur if the Province refused to issue the certificate.
The Court found that by initially entering into the 2010 Agreement with Canada, the Province did not trigger the duty to consult. But once the Province knew about First Nations’ concerns regarding NGP’s oil spill response capacity during 2013 to 2014, it owed a duty to consult CFN and Gitga’at on whether or not it should terminate the Agreement. Additionally, the content of the Agreement – replacing the provincial environmental assessment entirely with the federal one – deprived the Province of a key tool to give effect to its obligation to consult and especially accommodate the Nations. Unlike the BC Environmental Assessment Certificates, the federal environmental assessment lacks a mechanism to impose legally-binding conditions on project proponents.
As a remedy, the judge issued a series of declarations, including that part of the Agreement is invalid, and that the Province has a duty to consult. Costs were also granted to CFN and Gitga’at First Nation.