



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Prophet River First Nation v. British Columbia
  (Environment),









2017 BCCA 58




Date: 20170202

Docket: CA43187

Between:

Prophet River
First Nation and
West Moberly First Nations

Appellants

(Petitioners)

And

Minister of the
Environment,
Minister of Forests, Lands and Natural Resource Operations,
and British Columbia Hydro and Power Authority

Respondents

(Respondents)

And

Temexw Treaty
Association

Intervenor






Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Supreme Court of British Columbia, dated September 18, 2015 (
Prophet
River First Nation v. British Columbia (Environment)
, 2015 BCSC 1682, Vancouver
Docket No. S153242).




Counsel for the Appellants:



J. W. Gailus, E.
  Grier, A. T. Rana, and M. Nefstead





Counsel for the Respondent Ministers:



E. K. Christie and J.
  J. Oliphant





Counsel for the Respondent
British Columbia Hydro and Power Authority:



M. D. Andrews, Q.C.,
  C. F. Willms and E. A. B. Gilbride





Counsel for the Intervenor:



J. Langlois





Place and Date of Hearing:



Vancouver, British
  Columbia

December 5, 6, 7 and
  8, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

February 2, 2017









Written Reasons by:





The Honourable Mr. Justice Lowry





Concurred in by:





The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage






Summary:

Appeal from the dismissal of
an application for judicial review of a decision made by Ministers of the provincial
Crown to issue an Environmental Assessment Certificate for a hydroelectric
project that will impact the treaty rights of First Nations.  Two questions
arise that bear upon the proper discharge of the duty owed by the Crown to
First Nations.  The first question is whether the Ministers were required to
make a determination that the project will not unjustifiably infringe the subject
treaty; the second, which requires a consideration of the standard of review, is
whether there was adequate consultation with the two First Nations who made the
application.  Held: appeal dismissed.  The first question is answered in the
negative, the second in the affirmative.





Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

The Site C Clean Energy Project now under construction in northeastern
British Columbia has been the subject of wide-ranging controversy, in part
because it is encompassed by land that is the subject of Aboriginal treaty. 
Two First Nations made application for judicial review of the decision of two
Ministers of the provincial government who, following an extended public
process of study and evaluation, issued an Environmental Assessment Certificate
as required for the project to proceed.  The application was dismissed; the
First Nations now appeal.  Two questions arise that bear upon the proper
discharge of the duty of the Crown in seeking reconciliation with Aboriginal
peoples: the first is whether, before issuing the certificate, the Ministers
were required to determine the project would not constitute an unjustifiable
infringement of constitutionally protected treaty rights; the second is whether
there was adequate consultation with the First Nations and accommodation of
their concerns.

Site C

[2]

The project entails building a hydroelectric dam with a power-generating
station and creating an upstream reservoir with a surface area of 93 square
kilometres on the Peace River.  It will be the third project of its kind on
that river.  The project is being undertaken by British Columbia Hydro and
Power Authority, a Crown corporation.  It is to be constructed over a period of
eight years at a projected cost of about $9.0 billion.

[3]

The traditional territories of the Prophet River First Nation and the West
Moberly First Nations, together with those of two other First Nations, are said
to amount to 121,818 square kilometres surrounding the project.  They lie
within the lands surrendered to the Crown at the turn of the last century under
Treaty 8, the boundary of which encompasses northern Alberta, northwestern
Saskatchewan, a southern part of the Northwest Territories, and northeastern
British Columbia.  Like Prophet River and West Moberly, many First Nations are
either signatories or adherents to the treaty.  Under its terms, their right
to pursue their usual vocations of hunting, trapping and fishing throughout the
tract surrendered, upon which the project will have a significant impact, are
preserved, although subject to the land being taken up from time to time for
settlement, mining, lumbering, trading or other purposes.

[4]

These two First Nations, like others, have been and remain unalterably
opposed to the project.  They are members of an association of First Nations,
the Treaty 8 Tribal Association (T8TA), which coordinated consultation
discussions on their behalf.  In the main, they are opposed because they
consider the environmental and ecological impact on what will be 83 kilometres
of the Peace River Valley in creating the reservoir for the dam will infringe
the exercise of their treaty rights to the point of essentially defeating them
completely with sociological implications impairing the way of life for their
people now and in the future.  They maintain the infringement cannot be
constitutionally justified under what is referred to as the
Sparrow
test
(
R. v. Sparrow
, [1990] 1 S.C.R. 1075).

[5]

The test is two-fold: to establish justification, the Crown must
demonstrate that the infringement relates to a valid legislative or
governmental objective, and that its actions are consistent with its fiduciary
duty toward Aboriginal peoples.  (See also
R. v. Gladstone
, [1996] 2
S.C.R. 723 at paras. 5456.)
For a legislative or
governmental objective to be deemed valid, it must be compelling and substantial
(
Sparrow
at 1113).

Once a valid
objective has been established,
the way in which that
objective is to be attained must uphold the honour of the Crown and must be in
keeping with the unique contemporary relationship, grounded in history and policy,
between the Crown and Canadas Aboriginal peoples (
Sparrow
at 1110).

[6]

The project is subject to both federal and provincial environmental
assessments and ministerial approval, the first under the
Canadian
Environmental Assessment Act, 2012
, S.C. 2012, c. 19, s. 52, and
the second under the
Environmental Assessment Act,
S.B.C. 2002, c. 43. 
The process to be followed was established by a joint cooperative assessment
agreement announced in September 2011 between Canada and British Columbia which
provided for the establishment of a three-person panel, the Joint Review Panel,
and its Terms of Reference.

[7]

There were three stages.  Aboriginal groups participated in the process
throughout.  The first stage was the Pre-Panel Stage during which, through a working
group, the federal Canadian Environmental Assessment Agency and the provincial
Environmental Assessment Office oversaw the preparation of Environmental Impact
Statement Guidelines, finalized in September 2012, that BC Hydro, as the
proponent of the project, was to address in drawing what became the Environmental
Impact Statement.  The federal Agency and the provincial Office approved the
statement in August 2013 as being ready for the Joint Review Panels consideration.

[8]

The second stage was the Joint Review Panel Stage during which the Joint
Review Panel was mandated to inquire into the environmental, economic, social,
health and heritage effects of the project, including the consideration of the
mitigation of adverse effects with a view to assisting the ministers of the
Crown in weighing the benefits of the project against the costs when deciding
whether the project should proceed.  In so doing, the Panel assessed BC Hydros
impact statement together with the extensive volume of information submitted. 
It requested and received further information, conducted public hearings over
the course of 26 days concluding in January 2014, and ultimately delivered a
report to the federal Agency and the provincial Office in May 2014.

[9]

The third stage was the Post-Panel Stage during which referral packages
were prepared by the federal Agency and the provincial Office for submission to
the respective federal and provincial ministers.  The process, which occupied
three years, resulted in the preparation of extensive studies, assessments,
reports, and correspondence running to many thousands of pages.

[10]

In the main, the Joint Review Panel saw the benefits of the project to
be clear: the provision of a large, long-term increase in energy at a price
that would benefit future generations.  It recognized the cost will be high
and, while the power will in time be needed, there is uncertainty about the
timing of such need.  The Panel considered the project would have vastly less
greenhouse gas emissions than any comparable available alternatives.  The Panel
recognized, however, that the creation of the reservoir would mean significant
adverse environmental and ecological consequences, particularly as would impact
the treaty rights of Aboriginal peoples with respect to hunting, trapping and fishing,
as well as the end of agriculture on the Peace River Valley bottom lands, and
the inundating of valuable paleontological, archaeological, and historic sites.

[11]

The discharge of the now well-established duty of the Crown to engage in
consultation with First Nations for the purpose of addressing and accommodating
their concerns in circumstances like these was undertaken jointly by the
federal Agency and the provincial Office and, in particular, by BC Hydro as the
agent of the Crown, in conjunction with the environmental assessment.  The
consultation involved 29 Aboriginal groups to differing degrees.  It commenced
well before the environmental assessment process and continued through to the
conclusion of that process.  Both the Prophet River First Nation and the West
Moberly First Nations maintained a high level of engagement throughout.  Their
participation, through T8TA, was funded by BC Hydro to the extent of more than
$5.8 million in addition to government funding.  Some months before the
ministerial decisions were made, they took the opportunity afforded them of
writing separately to the federal and provincial ministers directly and, in so
doing, stated clearly the basis for their opposition to the project.

[12]

In September 2014, a Consultation and Accommodation Report, being an
extensive assessment of the consultation process, was prepared jointly by the
federal Agency and the provincial Office.  Significantly, with respect to the
infringement of treaty rights, it was said:

The Crown does not view the
[environmental assessment] as a process designed to determine specific rights
recognized and affirmed under s. 35(1) of the
Constitution Act, 1982,
but
instead, to reasonably understand the nature and extent of treaty rights
potentially being impacted by contemplated Crown actions in order to assess the
severity of potential impacts to them.

[13]

Hence, in keeping with the provisions of the agreement between Canada
and British Columbia in establishing the Joint Review Panel, no
conclusions were made as to whether the project would constitute an
infringement of Treaty 8.

[14]

With respect to the overall process of consultation, it was said:

as part of the [environmental
assessment] for the proposed Project, the Agency and the [Office] conclude that
consultation has been carried out in good faith and that the process was
appropriate and reasonable in the circumstances.

[15]

The report was included in the referral packages assembled for the Ministers
consideration.

[16]

In October 2014, based on ministerial recommendation, a federal Order in
Council was issued to the effect that the likely adverse environmental effects
of the project are justified.  On the same day, the provincial Minister of
Environment and the Minister of Forests, Lands and Natural Resource Operations
issued Environmental Assessment Certificate # E14-02 for the project, subject
to 77 conditions aimed at addressing the concerns of First Nations and others
with which BC Hydro must comply.

[17]

Prophet River and West Moberly promptly made application in both the
Federal Court of Canada and the Supreme Court of British Columbia for the
judicial review of the decisions taken to issue the Order in Council and the
certificate that facilitate the project proceeding.  They named as respondents,
in the Federal Court, the federal ministers involved and, in the Supreme Court,
the provincial ministers involved, as well as BC Hydro in both proceedings.  They
advanced various grounds of review but, for present purposes, two are
particularly germane.  They contended the Ministers (the Governor in Council in
the federal application) were bound to determine whether the project would
constitute an unjustified infringement of their treaty rights which the
Ministers had not done and that the Crowns duty of consultation and
accommodation had not been properly discharged such that the Order in Council
and the certificate were to be set aside.  Their applications were dismissed: 2015
FC 1030 and 2015 BCSC 1682.

[18]

Prophet River and West Moberly appealed to the Federal Court of Appeal
as well as to this Court.  In the Federal Court of Appeal, they appealed the
dismissal of their application insofar as it relates to the Ministers having
made no determination of whether the project would unjustifiably infringe their
treaty rights.  They did not appeal the determination the Federal Court had
made that the Crown had not breached its duty of consultation and
accommodation.  In this Court, however, they appeal both with respect to the
infringement of their treaty rights and the determination there has been no
breach of the Crowns duty to consult and accommodate.  Thus, because of our
court system, which requires the two First Nations to proceed in two venues as
they have, this Court is now in the unusual, if not awkward, position on this
appeal of having to consider the discharge of the Crowns duty to consult and
accommodate in the face of what is a final order of another Canadian court
establishing there was no breach of that duty, with the order having been made
when that court was considering the same issue on essentially the same evidence
that bears on the joint involvement of the federal and provincial
administrations and in particular BC Hydro.

[19]

The appeal to the Federal Court of Appeal has just now been dismissed: 2017
FCA 15.  The appellants case with respect to their contention that the Ministers
(the Governor in Council) were bound to make a determination of whether the
project constitutes an unjustifiable infringement of their treaty rights
appears to have been advanced on a somewhat different basis than the case
argued on this appeal.

[20]

Here, the appellants now seek declaratory relief and then to have the
order dismissing their application set aside, the decision of the Ministers to
issue the certificate quashed, and the matter remitted to the Ministers with
directions.

[21]

Against this outline I turn to address each of the two questions stated
at the outset that are raised on this appeal.

Unjustifiable Infringement of Treaty Rights

[22]

Before the Supreme Court of British Columbia, the appellants contended
that, in exercising their statutory discretion to issue the certificate, the
Ministers were constitutionally obliged to first determine whether the project
constituted an infringement of the appellants treaty rights that could not be
justified on the analysis prescribed in
R. v. Sparrow
.  On the argument
advanced in this regard, the issues arising were seen to be three: first,
whether the Ministers had jurisdiction to decide if the project would infringe
treaty rights; second, if they had such jurisdiction, whether it had to be exercised;
and third, whether the court should decide if the project would amount to an
unjustified infringement.  On the first issue, the judge concluded the
Ministers were without jurisdiction to make the determination for which the
appellants contend, in that it was not part of their statutory mandate, which
he contrasted with that of a statutory commission as discussed in
Paul v.
British Columbia (Forest Appeals Commission),
2003 SCC 55.  The second
issue did not then need to be addressed.  On the third issue, the judge found there
was an insufficient evidentiary record to permit the proper determination of
whether there would be an infringement that could not be justified if a
Sparrow
analysis were to be undertaken.

[23]

The judge reasoned that, while the Ministers decision to issue the
certificate was political and polycentric in nature, the determination of the
infringement of treaty rights and the justification for such was a rights-based
decision ministers of the Crown acting under the
Environmental Assessment Act
could not be expected to make.  He said:

[130]    The responsibility of the Ministers under the [
Environmental
Assessment Act
] is to determine whether a project should be permitted to
proceed in light of the considerations set out in s. 10. The [
Act
] does
not provide the Ministers with the powers necessary to determine the rights of
the parties interested in the project under consideration. The Ministers have
no power to compel testimony, hear legal submissions from the parties or
require production of documents. The procedures set out in the [
Act
] are
simply inadequate to permit determination of the issues framed by the
petitioners in this proceeding. In addition, it is obvious that the Ministers
have no particular expertise with respect to those issues.

[131]    The infringement issue as raised by the petitioners
requires the resolution of the proper construction of Treaty 8, a determination
of the nature and extent of each petitioners traditional territory and a
decision as to the effect of the jurisprudence to date on these issues. It is
in every respect a rights-based issue and requires a rights-based resolution.

[132]    Based on the nature of the decision being made by
the Ministers, the way in which information was provided to them, the broad
discretion they were granted to take any matter into account in reaching their
decision, the lack of any effective fact-finding machinery and the Ministers
lack of expertise with regard to matters of Aboriginal law, I conclude that the
legislature did not intend to vest the Ministers with the jurisdiction to
decide the complex question of whether the Project was an infringement of the
petitioners Treaty 8 rights.

[133]    My conclusion in this regard is reinforced by the
comments in
Mikisew
[
Mikisew Cree First Nation

v. Canada
(Minister of Canadian Heritage)
, 2005 SCC 69] and
Grassy Narrows
[
Grassy
Narrows First Nation v. Ontario (Natural Resources)
, 2014 SCC 48] that
suggest questions of infringement should be determined in an action. At a
minimum, these cases make it clear that deciding whether an infringement has
occurred requires a consideration of matters beyond the impact of the Project
as set out in s. 10 of the [
Act
]. Section 10 is clearly focused on
the impact of the project under consideration. However, infringement requires a
consideration of the residual position of the aboriginal group as a result of
the loss of all land taken up. It seems to me that the legislature could not
have intended to give the Ministers the jurisdiction to decide that question as
part of an environmental assessment of a specific project.



[140]    In my view, an action commenced by notice of civil
claim and conducted in accordance with the
Supreme Court Civil Rules
is
the proper forum for determination of the infringement issue. It is apparent
that there is a considerable degree of conflict in the evidence which can only
be resolved at trial. The
Judicial Review Procedure Act
, R.S.B.C. 1996,
c. 241 contemplates a summary hearing to review an administrative
decision. The hearing of this petition occupied seven days. Even in that time
there was not an adequate opportunity to fully consider the issues of
infringement. In addition, the record before me was inadequate to permit me to
make the necessary findings of fact to determine whether there has been an
infringement, and, if so, whether it can be justified.



[143]     The petitioners
claims of infringement would involve the petitioners establishing the
boundaries of their traditional territory, the extent to which specific species
were exploited within their traditional territory and the relative impact of
the Project on the traditional rights of the petitioners. These matters would
have to be proven by admissible evidence accepted by the court. They cannot
appropriately be resolved on a summary hearing pursuant to the
Judicial
Review Procedure Act
.

[24]

The judge considered that, rather than remitting the application for
judicial review to the trial list, the better course would be for the
appellants to commence an action for the breach of the treaty seeking such
remedy to which they considered themselves entitled.  The Federal Court judge
came to essentially the same conclusion in all respects on hearing the
application made in that court, as has now the Federal Court of Appeal.

[25]

The appellants contend the Supreme Court judge was wrong in concluding
the Ministers were without jurisdiction such that no question of their
constitutional obligation arose, but the appellants do not now make any
concerted effort to advance a case of unjustified infringement on the record
that was before the judge.  Rather, they seek only a declaration that the
Ministers were obliged to determine whether the project would constitute an
unjustifiable infringement of treaty rights before deciding to issue the
certificate.

[26]

To this end, the appellants say administrative decisions authorized by
statute must be constitutionally sound, citing
Slaight Communications Inc.
v. Davidson,
[1989] 1 S.C.R. 1038.  Thus, they say, the Ministers were
obliged to exercise their discretion in issuing the certificate within the
bounds of the Constitution, in particular s. 35(1) of the
Constitution
Act, 1982,
which preserves Aboriginal treaty rights: they could not issue
the certificate without first determining that it was constitutionally
compliant, citing
R. v. Conway
, 2010 SCC 22 at para. 42.  They then say
that to do so, in the circumstances, required the Ministers to determine
whether the project was an infringement of the treaty to which
Sparrow
justification
was applicable and, if so, whether the infringement was justified.  The
appellants contend that, because the Ministers issued the certificate without
determining whether they were effectively authorizing an infringement of the
appellants treaty rights, the Ministers were indifferent to the possibility
that the appellants treaty rights might be unjustifiably infringed.  This,
they maintain, amounts to the kind of persistent indifference recognized in
Manitoba
Métis Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14 at para. 82,
that is inconsistent with upholding the honour of the Crown.

[27]

It is significant that, as the judge recognized, an environmental
assessment certificate is not a licence to proceed with a project but rather is
only one necessary, albeit important, step in the overall approval process for a
project.  The Ministers decision to issue the certificate did not serve to
adjudicate the rights of those having an interest in the project.

[28]

It must be accepted that administrative statutory discretion is to be
exercised in accordance with the jurisdiction the governing statute affords. 
It can be taken from what the Supreme Court of Canada has said in its recent
consideration of administrative jurisdiction, with reference to both
Slaight
Communications
and
Conway,
that an administrative decision can in
some circumstances include determination of constitutional issues providing the
decision maker is authorized to determine questions of law and the matter falls
within the scope of the decision makers jurisdiction:
Doré v. Barreau du Québec,
2012 SCC 12.  That cannot be said to have been the case here; the Ministers
were not exercising a quasi-judicial statutory authority.

[29]

While there can be little question that the exercise of ministerial
discretion cannot stand if constitutionally impaired, to say the Crown, or
ministers of the Crown, as opposed to the court, must make a binding
determination  something that would itself amount to a reviewable decision 
at first instance of whether the Crown is unjustifiably infringing Aboriginal
treaty rights would appear to be a somewhat novel proposition.  Issues of
treaty infringement, like issues of Aboriginal territorial claims, are not
determined by ministers of the Crown.

[30]

That said, the appellants do not suggest the Ministers were required to
publish any determination made in this regard.  Rather, they maintain that,
like the assessment of the consultation with Aboriginal peoples and the
accommodation afforded them, made jointly by the federal Agency and the provincial
Office and referred to the Ministers, it was necessary that there be a parallel
assessment of the infringement of the treaty rights the project would
constitute, and the extent to which such could be justified under the
Sparrow
test
,
for the Ministers to consider in satisfying themselves and
effectively determining that their issuing the certificate would not
unjustifiably infringe the appellants treaty rights.

[31]

However, in the first place, the two are not parallel considerations 
the first being the adequacy of a process, the second a determination of rights
 and, in the second place, neither is in any event mandated by the governing authorities. 
It may be essential in any given case that ministers of the Crown, charged with
making the kind of administrative decision made here, recognize Aboriginal
claims and the necessity of deep consultation as well as measures of meaningful
accommodation to which they give rise.  But, while such will be among the
considerations to be taken into account in the course of making their decision,
they are not required to make a determination of the adequacy of the
consultation undertaken and accommodation afforded before exercising their
statutory discretion.  What is important is that the consultation and
accommodation be adequate, not that the Crown determine that to be the case.  Whether
it is in fact the case is a matter for the court, not the Crown, to decide.  As
was said in
Cold Lake First Nations v. Alberta (Tourism, Parks and
Recreation
), 2013 ABCA 443, leave to appeal to S.C.C. refused, [2014]
S.C.C.A. No. 62, otherwise in dissent:

[61]      Although characterized as a judicial review, for
the purposes of deciding this case, it might have been better to characterize
it as a dispute over whether a legal duty had been discharged by the party
which undeniably owed it. The legal duty, of course, was the duty to adequately
consult. And the party owing it was the Crown.

[62]      As the majority quite properly points out, adequacy
of consultation is ordinarily determined having regard to the importance of the
First Nations right or privilege potentially being impacted and to the
magnitude of the potentially adverse impacts of what is being proposed on the
First Nation right or privilege:
Taku River Tlingit First Nation v. British
Columbia (Project Assessment Director)
, 2004 SCC 74, [2004] 3 SCR 550 and
Haida
Nation v. British Columbia (Minister of Forests)
, 2004 SCC 73, [2004] 3 SCR
511.

[63]      And the body which
makes that determination, when there is a dispute, is the Court, not the Crown
which owes the duty. And because the Crown cannot be the judge of its own
cause, as its ministers, agencies and quasi-judicial tribunals often are in
administrative law cases, its view of the adequacy of its consultation is not
what is being reviewed. What is being reviewed is the adequacy of its
consultation and that review is conducted by the Court.

[32]

If the Ministers, or others engaged in making comparable administrative
decisions as agents of the Crown, could not exercise the discretion afforded
them by statute without first making a determination that constitutional
requirements had been fulfilled, their failure to make the determination would
render the discretion exercised invalid even if the constitutional requirements
had in fact been fulfilled.  That cannot be right.

[33]

It follows that, not only were the Ministers not required to make a
determination of whether the consultation and accommodation were adequate, they
were also not required to determine whether the project constituted an
unjustifiable treaty infringement before issuing the certificate.  It was not
within their statutory mandate and, as the judge recognized, they did not have
the means to make a proper determination.

[34]

In
Mikisew Cree First Nation v. Canada
, 2005 SCC 69, the Court
discussed the duty of the Crown when faced with exercising ministerial
discretion with respect to a project where treaty rights would be affected. 
Consistent with the duty recognized in
Haida Nation v. British Columbia
(Minister of Forests)
, 2004 SCC 73, where not a treaty but a claim to
Aboriginal title was concerned, the Court described the Crowns duty to be one
of consultation and accommodation, the extent of which was to be driven by the
context with regard for the measure of the impact the project would be expected
to have on the apparent treaty rights involved.  The governing question is
always what is required to maintain the honour of the Crown and to effect
reconciliation between the Crown and the Aboriginal peoples affected.  In all
the Court said, there is no suggestion that, before exercising ministerial discretion
in granting an approval for a project, a determination must be made as to whether
the project will constitute an unjustifiable infringement of treaty rights, nor
is such a suggestion to be found in any of the governing authorities.

[35]

The appellants maintain that support for their contention is to be found
in
West Moberly First Nations v. British Columbia (Chief Inspector of Mines)
,
2011 BCCA 247, where it was said government administrators were, in the
circumstances, bound to take cognizance of the interpretation of Treaty 8, employing
such assistance as necessary, in exercising their discretion with respect to
permits affecting a mining proposal to which West Moberly was opposed on the
basis it would infringe their treaty rights.  But the issue there was whether
the consultation was adequate when consideration had been given only to
mitigating the impact of what was proposed and not to whether the proposal
should be undertaken at all.  In effect, a proper appreciation of treaty rights
was seen to facilitate recognition of the scope of consultation, but nothing that
was said suggests those exercising administrative discretion are bound to make
a determination of a constitutional nature as to whether a project will
infringe the treaty to an extent that cannot be justified.

[36]

Consistent with what the Federal Court of Appeal has now held, I
consider it was not incumbent on the Ministers to make a determination as to
whether the project would constitute an unjustifiable infringement of the
appellants treaty rights before issuing the certificate.  It was not a
determination they had the means or the constitutional duty to make.  Determining
whether creating the reservoir for the dam will infringe the exercise of the
appellants treaty rights to the point of essentially defeating them completely
would entail a decidedly different exercise than that contemplated by the
environmental assessment process.  However, far from there being indifference
to the appellants contention that the project would constitute an
unjustifiable infringement, their contention informed the recognition of the
need for consultation that drove the extent to which it was undertaken in
discharging the duty owed by the Crown.

[37]

I would add only that, while it is contended to the contrary,
particularly by the intervenor, I consider the judge chose the proper course in
declining to remit the application to the trial list in preference for the
appellants commencing an action should they see fit to do so.  His disposition
in this regard is well supported by the authorities:
Lax Kwalaams Indian
Band v. Canada (Attorney General)
, 2011 SCC 56 at para. 11 as quoted
by the judge at para. 142.

Adequacy of Consultation and Accommodation

[38]

Consistent with the purpose stated in the assessment of the process in
the Consultation and Accommodation Report prepared jointly by the federal
Agency and the provincial Office, the consultation with Aboriginal peoples was
undertaken to develop an understanding of the nature and the extent of their
treaty rights that would potentially be impacted by the project so as to
appreciate the severity of such and give meaningful consideration to measures
of accommodation.  The duty borne by the Crown drawn from the governing
authorities, in particular
Mikisew
and more recently
Grassy Narrows
First Nation v. Ontario (Natural Resources)
, 2014 SCC 48, with respect to
projects that impact treaty rights is correctly stated in the Consultation and Accommodation
Report, as quoted by the judge at para. 151:

When intending to take up lands,
the Crown must exercise its powers in accordance with the Crown obligations
owed to the Treaty 8 First Nations, which includes being informed of the impact
of the project on the exercise of the rights to hunt, trap and fish,
communicate such findings to the First Nations, deal with the First Nations in
good faith, and with the intention of substantially addressing their concerns.
The extent or scope of the duty to consult and accommodate required with a
Treaty 8 First Nation depends on the seriousness of potential impacts to that
First Nation, as discussed in the following sections of this report.

[39]

Before the judge, the appellants maintained that both the extent of the
consultation and the efforts to afford accommodation were inadequate to
discharge the duty owed by the Crown in the circumstances.  The judge reviewed
the history of the consultation process in detail, identifying a large number
of accommodative measures proposed, as well as changes to the project BC Hydro
made in response to concerns raised and, after determining the duty to be
discharged was properly understood as one of what the authorities recognize as
deep consultation, he concluded that, considered on a reasonableness
standard, the consultation with and the accommodation afforded the appellants
was indeed adequate:

[157]    Based on the record reviewed in these reasons, I
conclude that the government made reasonable and good faith efforts to consult
and accommodate the petitioners with respect to the Project.

[158]    I have set out the history of the consultation
process in perhaps excessive detail earlier in these reasons. I did so in part
to make clear the factual foundation for my conclusion that there was adequate
consultation and efforts to accommodate in this case. I am satisfied that the
government made reasonable efforts and acted in good faith with respect to
consultation with the petitioners.

[159]    In the end the parties were unable to reconcile their
differences over the Project. However, I conclude that they failed to achieve
reconciliation because of an honest but fundamental disagreement over whether
the Project should be permitted to proceed at all. I am satisfied that the
government made a good faith effort to understand the petitioners position on
this issue and made reasonable efforts to understand and address the
petitioners concerns.

[160]    The object of consultation and accommodation is
reconciliation between governments and First Nations. In this case, that
reconciliation was not achieved because the government has concluded that it is
in the best interests of the province for the Project to proceed and the
petitioners have concluded that there is no adequate accommodation for the
effects of the Project.

[161]    The petitioners
position is that the only government action that would adequately accommodate
their right would be for the government to meet the electricity needs of the
province from alternative sources

[40]

The judge addressed directly the appellants contention that the project
should not proceed and that insufficient consideration had been given to
alternatives.  He said:

[167]    In this case the Panel was specifically tasked with
considering alternatives to the Project. While the Panel did conclude that BC
Hydro had not fully demonstrated a need for the power from the Project on the
timetable proposed by BC Hydro, it also concluded that British Columbia would
need new energy and capacity in the future. The Panel determined that Site C
was the least expensive of the alternative sources of energy and that its cost
advantages would increase in the future. The Panel also acknowledged that the
objectives of the [
Clean Energy Act
, S.B.C. 2010, c. 22] were a
legitimate objective of BC Hydro.

[168]    I am satisfied that the petitioners were provided a
meaningful opportunity to participate in the environmental assessment process.
They were on the Working Group that reviewed the Terms of Reference and the [Environmental
Impact Statement]. They participated in the Panel review process. Government
and BC Hydro provided the petitioners with funding to assist them in
participating in the assessment process. Finally, their position was clearly
and succinctly put before the Ministers in their final letters.

[169]    I am also satisfied that
the environmental assessment process as a whole did provide the petitioners
with a reasoned explanation as to why their position, that the Project should
not proceed at all, was not accepted. Because the Ministers were not required
to give reasons for issuing the Certificate, that explanation must be
reasonably ascertainable from the assessment process. I am satisfied that, in
this case, the petitioners understood the reasons why the government decided to
move forward with the Project.

[41]

The judge who heard the application for judicial review in the Federal
Court came to the same conclusion for much the same reasons.  He attached
particular importance to the fact that, although the appellants had expressed
their strong opposition to the project, BC Hydro had, over the course of seven
years, met with them 177 times and funded their full participation in the
environmental assessment and consultation processes throughout in accordance
with several agreements made with them over that time.  The judge found the
lengthy consultation process had been conducted in good faith and was extensive
both qualitatively and quantitatively.  He said it was apparent that, while
efforts were made to engage with the appellants to address mitigation measures
after the Joint Review Panel report was issued, they refused once they had
decided the project being abandoned was the only viable solution for them.

[42]

The appellants contend the Supreme Court judge was wrong in concluding
that the consultation and the accommodation afforded them was adequate.  They
seek a declaration that the Ministers decision to issue the certificate was in
breach of the Crowns duty in that regard.  The respondents maintain there is
no basis on which this Court should interfere with what the judge decided and the
parties are at odds over the applicable standard of review.  The standard may best
be addressed before the challenge to the judges conclusion with respect to the
process of consultation and accommodation is considered.

(i)
The Standard of Review


[43]

As seems increasingly to be the case, at least in matters of this kind,
the applicable standard of review is not straightforward.  The appellants
contend it is one of reasonableness while the respondents maintain the judges
conclusion on the issue, being a question of fact or mixed fact and law, cannot
be disturbed in the absence of his having made a palpable and overriding
error.  Their core contention is that where, as here, a judges conclusion is
fact-intensive, based on an extensive record comprising thousands of pages and
seven days of submissions, the principles to be applied are those established
in
Housen v. Nikolaisen,
2002 SCC 33: a
n appellate
court may set aside the findings of a lower court if, on a question of law, the
lower court was incorrect, or if, on a question of fact or mixed fact and law,
the lower court made a palpable and overriding error.

[44]

Questions of mixed fact and law involve applying
a legal standard to a set of facts (
Housen
at para. 26).  As stated
in
Canada (Director of Investigation and Research) v. Southam Inc.
,
[1997] 1 S.C.R. 748 at para. 35, questions of mixed law and fact are questions
about whether the facts satisfy the legal tests.  The jurisprudence supports
the respondents contention that the adequacy of consultation and accommodation
is a question of mixed fact and law:
Neskonlith Indian Band v. Salmon Arm
(City)
, 2012 BCCA 379 at paras. 60 and 84; and
Council of the Innu
of Ekuanitshit

v. Canada (Attorney General)
, 2014 FCA 189 at para.
82, leave to appeal to SCC refused, [2014] S.C.C.A. No. 466.  What
constitutes adequate consultation is determined through a combined legal and factual
analysis of the strength of the
prima facie
Aboriginal claim and the
seriousness of the impact on the underlying Aboriginal or treaty right:
Haida
Nation
at paras. 4345; and
Taku River Tlingit First Nation v.
British Columbia (Project Assessment Director)
, 2004 SCC 74

at paras. 2932.

[45]

It does not, however, follow that the standard
of review on what is an appeal of a disposition of an application for judicial
review is one of palpable and overriding error.  In
Agraira v. Canada
(Public Safety and Emergency Preparedness)
,

2013 SCC 36
,
the Court drew a distinction between
the
appellate review standards of correctness and palpable and overriding error,
and the administrative law standards of correctness and reasonableness:

[45]      The first issue in this appeal
concerns the standard of review applicable to the Ministers decision. But,
before I discuss the appropriate standard of review, it will be helpful to
consider once more the interplay between (1) the appellate standards of
correctness and palpable and overriding error and (2) the administrative law
standards of correctness and reasonableness. These standards should not be
confused with one another in an appeal to a court of appeal from a judgment of
a superior court on an application for judicial review of an administrative
decision. The proper approach to this issue was set out by the Federal Court of
Appeal in
Telfer v. Canada Revenue Agency
, 2009 FCA 23, 386 N.R. 212, at
para. 18:

Despite
some earlier confusion, there is now ample authority for the proposition that,
on an appeal from a decision disposing of an application for judicial review,
the question for the appellate court to decide is simply whether the court
below identified the appropriate standard of review and applied it
correctly.  The appellate court is not restricted to asking whether the
first-level court committed a palpable and overriding error in its application
of the appropriate standard.

[46]      In
Merck Frosst Canada Ltd. v.
Canada (Health)
, 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247,
Deschamps J. aptly described this process as step[ping] into the shoes of
the lower court such that the appellate courts focus is, in effect, on the
administrative decision (emphasis deleted).

[47]      The issue
for our consideration can thus be summarized as follows: Did the application
judge choose the correct standard of review and apply it properly?

[46]

Thus, on what was said in
Agraira,
an appeal
from the disposition of an application for judicial review engages a two-step
analysis: first, whether the reviewing judge employed the right standard  be
it correctness or reasonableness  and second, whether it was properly applied,
with the appellate court making an independent assessment in that regard
focusing on the administrative decision that was the subject of the review.

[47]

That said, it must be recognized that, consistent
with the discussion above, the review of a decision to issue an environmental
assessment certificate where the adequacy of consultation and accommodation is
challenged will, as in this case, require focusing on whether the Crowns
constitutional duty in that regard has been properly discharged.
As stated in
Huu
‑
Ay
‑
Aht First Nation v. British Columbia (Minister of Forests)
, 2005 BCSC 697 (cited with approval in
Chartrand v. British
Columbia (Forests, Lands and Natural Resource Operations)
, 2015 BCCA 345 at
para. 68):

[94]       The
courts may review government conduct to determine whether the Crown has
discharged its duty to consult and accommodate pending claims resolution (
Haida
at para. 60).  In its review, the court should not give narrow or
technical construction to the duty, but must give full effect to the Crowns
honour to promote the reconciliation process (
Taku
at para. 24). 
It is not a question, therefore, of review of a decision but whether a
constitutional duty has been fulfilled (
Gitxsan Houses v. British Columbia
(Minister of Forests)
(2002), 10 B.C.L.R. (4th) 126 at para. 65, 2002
BCSC 1701).

[48]

While the notion of an appellate court stepping
into the shoes of the reviewing judge has been applied to the extent of
suggesting that, in considering the Crowns duty to consult and accommodate, it
is necessary to re-do the judges reasonableness analysis to see if the same
conclusion is reached (
Canada v. Long Plain First Nation
, 2015 FCA 177
at para. 93), it appears to have been qualified with respect to what are
clear findings of fact in
Hupacasath First Nation v. Canada (Foreign Affairs
and International Trade Canada),
2015 FCA 4.  There, on an appeal
concerning the fulfillment of the Crowns duty of consultation and
accommodation the following was stated:

[75]
Agraira v. Canada (Public Safety and Emergency
Preparedness)
, [2013] 2 S.C.R. 559, 2013 SCC 36 at paragraph 46 stands for
the proposition that we are to stand in the shoes and consider whether the
Federal Court properly applied the
standard
of review. I do not believe that this allows us to substitute our factual
findings for those made by the Federal Court.

[76]      In my view, as is the
case in all areas of appellate review, absent some extricable legal principle,
we are to defer to findings that are heavily suffused by the first instance
courts appreciation of the evidence, not second-guess them. Only palpable and overriding
error can vitiate such findings.

[49]

Further, the authorities are not free of
confusion as to whether the adequacy of consultation and accommodation is a
matter of reasonableness.
Haida Nation
(para. 62) appears to have
established the consultation process itself is to be examined on a standard of
reasonableness, but in
Beckman v. Little Salmon/Carmacks First Nation,
2010
SCC 53 at para. 48, it was said the standard is correctness.  In
Neskonlith
Indian Band v. Salmon Arm (City)
, 2012 BCCA 379 at paras. 60 and 84,
this Court definitively applied a standard of reasonableness as stated in
Haida
over that stated in
Beckman
.  (See also
Ktunaxa Nation v. British
Columbia (Forests, Lands, and Natural Resource Operations),
2015 BCCA 352
at para. 79, and
Nunatsiavut v. Canada (Attorney General),
2015 FC
492 at paras. 114115.)

[50]

Reasonableness is a deferential standard of review concerned with both
the existence of justification, transparency and intelligibility within the
decision-making process and whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law:
Dunsmuir v. New Brunswick
,

2008 SCC 9 at para. 47.  Reviewing
courts must avoid merely paying lip service to the concept of reasonableness
review while in fact imposing their own view:
Dunsmuir
at para. 48.
 There may be more than one reasonable outcome and as long as the process and
the outcome fit comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing court to substitute its own
view of a preferable outcome:
Canada (Citizenship and Immigration) v. Khosa
,
2009 SCC 12 at para. 59.

[51]

What amounts to adequate consultation is perhaps most recently
addressed in
Gitxaala Nation v. Canada,
2016 FCA 187, leave to appeal to the Supreme Court of Canada sought:

[182]    Canada is not to be held to a
standard of perfection in fulfilling its duty to consult. In this case, the
subjects on which consultation was required were numerous, complex and dynamic,
involving many parties. Sometimes in attempting to fulfil the duty there can be
omissions, misunderstandings, accidents and mistakes. In attempting to fulfil
the duty, there will be difficult judgment calls on which reasonable minds will
differ.

[183]    In
determining whether the duty to consult has been fulfilled, perfect
satisfaction is not required, just reasonable satisfaction:
Ahousaht v.
Canada (Minister of Fisheries and Oceans)
, 2008 FCA 212, 297 D.L.R. (4th)
722, at paragraph 54;

[52]

Here, the judge employed the right standard of
review in concluding the consultation with and the accommodation afforded the
appellants was reasonable and therefore adequate.  He did assume that the
Ministers had determined that to be the case by virtue of their apparent
acceptance of what was said in the joint Consultation and Accommodation Report
of the federal Agency and the provincial Office, quoted above, but his having
done so did not impair the analysis of the process he undertook.  Absent any
discrete question of law, it is now for this Court to determine whether the
standard of reasonableness was properly applied.  This is to be done by
assessing whether the process followed in the course of consulting with and
accommodating the appellants was, in the circumstances, reasonable having
regard for the nature of that standard recognized in law.  The question, one of
mixed fact and law, is to be considered as if being addressed initially by the
judge save that no clear findings of fact made by him are to be altered in the
absence of palpable and overriding error.

(ii)
The Process

[53]

The consultation with the appellants was by any
account deep and extensive.  It could not be characterized as anything less. 
It was directed at gaining an understanding of the impact the project would
have on the Aboriginal peoples affected in the context of their treaty rights
with a view to the consideration of measures that could be taken to accommodate
them.  Given the substantial funding they were given to engage assistance and
undertake their own assessments, the studies and reports to which they were
given access, and the interaction they were afforded through meetings, public
hearings and correspondence, they clearly had the benefit of a full involvement
in the process throughout.  Their involvement led to a substantial number of modifications
to the project and other accommodative measures that were proposed and to a
large extent implemented that the judge considered (paras. 8087) which need
not be specifically addressed here.  It suffices to say that, on its face, the
record reflects the extent of consultation and accommodation that appears
reasonable in the circumstances.

[54]

The appellants take no exception with the
judges factual account of the course the environmental assessment and
concurrent consultation took that underlay his conclusion.  Their contention is
that, despite the extent of their involvement, the consultation was not
adequate primarily because alternatives to the project were not considered. 
During the process, they advocated consideration be given to deriving
electrical power from alternative sources, which included wind, natural gas,
geothermal resources, and smaller hydroelectric projects at other sites, but
they say there was never any real consideration by the Crown as to whether an
alternative source of power or location for the dam ought to be explored.  This
they attribute first to the enactment of the
Clean Energy Act
and then
to BC Hydro having advanced the case for the project before the Joint
Review Panel on the basis that it would maximize the hydroelectric potential of
the Peace River.  The
Clean Energy Act
provides for the objective of 93%
of electricity in the province being generated from clean or renewable sources
and exempts the project from utilities commission approval, which the
appellants say rendered the project a foregone conclusion.  The Joint Review
Panel discounted the maximization of the Peace River as tilting the scales
unduly in favour of the project over alternatives, which the appellants
maintain is what happened.  The appellants say that, as the authorities
establish, consultation that from the outset excludes meaningful accommodation
is meaningless.

[55]

The appellants also contend that outstanding
issues identified by the Joint Review Panel were not properly addressed in the
Post-Panel Stage, but they focus in the main on what they say is the absence of
the Crowns consideration of alternatives.  The appellants attach importance to
the Joint Review Panel finding that BC Hydro had not fully
demonstrated
the need for the hydroelectric power to be produced by the project on the
timetable proposed and the Panels recognition that the project
would have a number of impacts on their treaty rights, including
their current use of land and resources for hunting, trapping and fishing,
which in large measure cannot be mitigated.  They say that despite the impact
the project will have, there was no consideration of the only accommodation
warranted that would be satisfactory to them, namely the project being
abandoned or at least deferred indefinitely to permit a proper consideration of
the alternatives that might be undertaken.

[56]

Support for the appellants contention is said
to be found in principle in
Haida Nation
(specifically para. 47)
where the duty of the Crown to avoid irreparable harm or minimize its effects
is discussed and, by analogy, in
Gitxaala Nation
(see in particular para. 325). 
Broadly, the appellants say consultation and accommodation must be meaningful
in both procedure and substance.  They say that upholding the honour of the
Crown in discharging the duty owed to Aboriginal peoples must demonstrably
promote reconciliation, citing
Chartrand
at paras. 6869.  The
appellants maintain the process of consultation wholly failed in this regard,
having been heavy on quantity but lacking in quality.  They say the principle
that actions that adversely affect the rights of First Nations people should be
taken in a manner that minimally infringes their constitutional rights  the
golden thread of proportionality that runs through the authorities  was forsaken
in the consultation process.

[57]

For their part, the respondents maintain that
the record reflects considerable consultation with Aboriginal peoples,
including the appellants, concerning alternatives to the project, emphasizing
in particular an assessment prepared by BC Hydro during the Post-Panel Stage
headed Consideration of Site C AlternativesRelated Consultation with First
Nations.  A draft was included in the referral packages for the Ministers.  It
identifies three channels through which consultation was carried out with First
Nations regarding alternatives: BC Hydros own consultation process; the
consideration of alternatives during the course of the joint federal and
provincial environmental assessment process; and the development of BC Hydros
Integrated Resource Plan (pursuant to s. 3 of the
Clean Energy Act
),
a long-term plan for meeting the provinces future electricity needs.

[58]

The extent to which the proper discharge of the
duty of the Crown requires the consideration of alternatives to any given
project appears to be largely an open question.  The authorities reflect the
need for caution in imposing a duty to exhaustively consult on and consider
matters going beyond the scope of a project.  As the Supreme Court of Canada
stated in
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
,

2010
SCC 43 at para. 53, the duty to consult concerns the specific Crown proposal
at issue.  The duty to consult on proposed project alternatives may therefore
be tempered to the extent that such alternatives go beyond the specific project
being considered.  (See also
Adams Lake Indian Band v. Lieutenant Governor
in Council
, 2012 BCCA 333, leave to appeal to S.C.C. refused, [2012]
S.C.C.A. No. 425; and
Halalt First Nation v. British Columbia (Minister
of Environment)
, 2012 BCCA 472, leave to appeal to S.C.C. refused, [2013]
S.C.C.A. No. 22.)  That said, it does not appear necessary to explore the
question further in this instance because it is clear on the record that,
contrary to what the appellants contend, alternatives to the project were
properly considered.

[59]

It is of significance that in contending, as
they do, there was never any real consideration of alternatives by the Crown,
the appellants do not now advance any case with respect to any specific
alternatives they maintain should have been but were not considered in the
course of the consultation process.  They do not identify any specific sources
of electricity that might be sufficiently viable in terms of comparable cost,
power production, and availability that ought to have been, but were not,
considered as alternatives.  Rather, they argue only in terms of broad
generalizations to the effect that the process fell short of what was
required because alternatives were not considered.

[60]

Certainly, as the judge found, a consideration
of alternatives to the project was undertaken by the Joint Review Panel.  Its analysis
led to the conclusion that the project was the least expensive and that its
cost advantages would increase in the future.  The consideration of
alternatives was mandated by the Panels Terms of Reference.  The terms were
expanded to address the appellants concerns with respect to the consideration
of alternatives which then formed part of the Environmental Impact Statement
Guidelines, the Environmental Impact Statement, and ultimately the Joint Review
Panel Report.  BC Hydro devoted an entire section of its Environmental Impact
Statement and a technical appendix to the need for and alternatives to the
project.  Three of the 26 days of the Joint Review Panel hearings were devoted
to that subject.  Further, the Consultation and Accommodation Report prepared
in the Post-Panel Stage specifically addressed the alternatives proposed by
First Nations and set out the responses of BC Hydro and the Joint Review
Panel to those alternatives.

[61]

Beyond that, during the course of the process,
there was direct consultation between the appellants and BC Hydro that included
the subject of alternatives to the project.  T8TA provided BC Hydro with
comments on the Environmental Impact Statement on a range of topics, including
the need for the project, project alternatives, and cumulative effects. There
were 730 comments in total, occupying 470 pages.  BC Hydro responded to each
comment received and submitted 29 technical memorandums on common themes that
arose including treaty rights, consultation, the need for the project,
alternatives, and cumulative effects.  The Joint Review Panel hearings were
followed by BC Hydros further communications with T8TA, explanations of how
T8TAs comments were considered, and consideration of reports written by T8TA.

[62]

The consideration given to specific alternatives
at one point in the process is found in BC Hydros assessment of three
alternate locations for a hydroelectric dam, including the First Nations
requested consideration of Site 7b (a proposed alternative for a dam at another
site on the Peace River).  BC Hydro produced a table containing its responses
to comments on the Environmental Impact Statement submitted by First Nations. 
It prepared a report headed Review of Alternate Sites on the Peace River.  With
respect to Site 7b in particular, it was considered that it would not meet the
need described in the Environmental Impact Statement, as it would produce only
about one-fourth of the energy that could be produced by the project.  In
short, BC Hydro concluded that situating the project at Site 7b would be uneconomical. 
Following the issuance of this report, BC Hydro met with T8TA to review it and
seek the First Nations input.  BC Hydro also provided funding to T8TA to
engage consultants with engineering expertise to support a review of the
report.  It is evident that a meaningful dialogue took place with respect to
this report and with respect to alternative sites.

[63]

Ultimately, following the Joint Review Panel
report, T8TA advised BC Hydro that it was only interested in discussing
alternatives to the project.  BC Hydro agreed to discuss alternatives and to
arrange for its experts on this issue to participate.  Between September and
December 2014, BC Hydro and T8TA engaged in further consultation on the need
for and alternatives to the project.  BC Hydro provided T8TA with $58,250 to
participate in this consultation alone.  It appears evident BC Hydro did
identify and consult on at least seven potentially viable alternatives referred
to as: demand-side management, run-of-river hydro, wind, biomass, geothermal resources,
natural gas, and pumped-storage hydroelectricity.  In the end, BC Hydro
determined that the project offered the best combination of attributes and was
the preferred option.

[64]

Gitxaala Nation
, upon
which the appellants rely,

is to be distinguished.  There the
consultation process was found wanting because key issues were left
undisclosed, undiscussed and unconsidered (para. 325).  Here the same
deficiencies are not apparent.  BC Hydro did consult meaningfully on the issues
identified by the appellants; in particular, First Nations were provided a
meaningful opportunity to make submissions, have those submissions considered,
and engage in discussions concerning alternatives.  On the record, it simply
cannot be said the Crown failed to discharge the duty of consultation and
accommodation it owed.

[65]

With respect to the appellants claims regarding
the duty to accommodate, it must be remembered that the Crowns consultation
and accommodation efforts should not be deemed unreasonable merely because
immitigable impacts are identified.  As articulated in
Haida Nation
, the
identification of such impacts is a factor indicating the requirement of deep
consultation and accommodation, but this does not necessarily require that a
different substantive outcome be reached: the focus  is not on the outcome,
but on the process of consultation and accommodation (para. 63).  The
duty to consult and accommodate does not afford First Nations a veto over the
proposed activity:
Mikisew
at para. 66.  Here, the appellants have
not been open to any accommodation short of selecting an alternative to the
project; such a position amounts to seeking a veto.  They rightly contend
that a meaningful process of consultation requires working collaboratively to
find a compromise that balances the conflicting interests at issue, in a manner
that minimally impairs the exercise of treaty rights.  But that becomes
unworkable when, as here, the only compromise acceptable to them is to abandon
the entire project.

[66]

In
West Moberly First Nations
(para. 148),
it was said that if the position put forward by a First Nation that a project
should not proceed at all is not acceptable, a satisfactory, reasoned
explanation must be given to them.  It appears clear, as the judge found, that
such an explanation was provided in the referral package put before the
Ministers, as well as other information that was made available to the
appellants in the course of the process.

[67]

Viewed from the perspective of a reviewing judge
at first instance, there is no sound basis on which to conclude the process of
consultation in which the appellants were engaged was other than adequate in
the sense of being reasonable in all the circumstances.  Reconciliation, as
indeed the judge concluded, was not achieved because of an honest disagreement
over whether the project should proceed, but that does not mean the process was
flawed.  The fact that the appellants position was not accepted does not mean
the process of consultation in which they were fully engaged was inadequate. 
Although the appellants maintain the record is one only of quantity, it is
apparent it is very much one of quality as well.  It demonstrates the thorough
consultation and efforts to accommodate apart from abandoning the project that
were made before, during, and after the environmental assessment, including
meaningful consideration of, and consultation on, alternatives.

Disposition

[68]

I would dismiss the appeal.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Mr. Justice Willcock

I agree:

The Honourable Mr. Justice
Savage


