Lawyers predict an upswing in judicial reviews and legal challenges
Last week, British Columbia fast-tracked the passing of two bills into law designed to speed up the development and construction of major infrastructure projects. In its haste to get things moving quickly, the province may have introduced potential legal speed bumps and roadblocks.
Both the Renewable Energy Projects (Streamlined Permitting) Act, or Bill 14, and the Infrastructure Projects Act, or Bill 15, contain measures, such as eliminating the need for environmental assessments before project approval and not including references to consultation and consent that are causing concern amongst First Nations in the province.
The Gitxaała Nation’s Lu Sa Hax Hoyaxgm Wil’nat’aał, the joint committee of Hereditary Chiefs and elected Council, sent a letter to Premier David Eby before the bills’ adoption, outlining their objections to the bills and the process used to pass them.
Christopher Devlin, a partner at Sequoia Legal, represents the Gitxaała Nation. He expects that once projects are approved under the new rules, First Nations across the province will begin to take legal action.
“I would anticipate more litigation challenging the approval of projects under these bills that haven't gone through the rigorous, public, transparent processes,” he said. “I would think that there’ll be a lot less acceptance of projects as a result of them being fast-tracked and streamlined under these kinds of processes, and that'll likely result in litigation.”
He isn’t the only one who anticipates those types of reactions. Merle Alexander is a principal lawyer with Miller Titerle + Company who practises Indigenous resource law. Like Devlin, he expects First Nations to turn to the courts in reaction to projects being pushed forward under the new acts.
“There already is, I think, a fair amount of litigation risk,” he said. “I think there’s going to be a lot of judicial reviews. Once you get a better sense of what the projects are, then we’ll know who’s affected by them, and then you’ll start seeing Nations starting to prepare for potential judicial reviews or the approvals that have come under the act.”
One issue in the Infrastructure Projects Act centres on the concept of constraints, which are defined as measures that “may impede or otherwise interfere with the completion or operations of the infrastructure project.”
The only time in either act that Indigenous people are mentioned is under division 3, s. 20. This section, entitled “engagement with Indigenous peoples,” references two long section priors, ss. 18 and 19. Those sections deal with constraints, saying that regulations regarding constraint “may not be made in relation to provisions of an enactment respecting engagement with Indigenous peoples, as defined in the Declaration on the Rights of Indigenous Peoples Act.”
How that will work in reality has yet to be proven.
“What we don’t know is, what does that mean in practice?” explains Devlin. “If the proponent considers something to be a constraint, then the proponent can trigger the review procedures, the monitoring procedures in the act, and a lot of First Nations, including the Gitxaała, have identified this as likely a point of attack on their Indigenous rights, their s. 35 rights… I think the real fear is, does the Bill 15 in particular create a workaround, and will First Nations see all the advances that have happened since the Haida decision in 2004, will all those start getting rolled back?”
Both acts eliminate the need for an environmental assessment. Instead, a “qualified professional” can certify projects for go-ahead. Losing the ability to participate in an environmental assessment process is also troubling to First Nations.
“The regulatory process and the environmental assessments are areas where First Nations usually very actively participate. They are areas also where the duty to consult is often fulfilled by that participation in those in those processes, if those are eliminated in for certain projects, then you don’t have a replacement for that consultation mechanism,” said Alexander.
He added that the idea that projects can be fast-tracked if regulatory red tape is eliminated has been proven false. Instead, he points to a study performed by Simon Fraser University and the University of British Columbia that shows delays in building large-scale projects like mines are more often the result of business-related decisions and economic factors.
Along with losing the ability to be part of the process, eliminating environmental assessments also degrades the faith people, including First Nations members, can have in the safety of the projects, argues Devlin. Instead, people will be forced to rely on the word of hired professionals working directly for the government or third-party proponents of the project.
Devlin says that while experts still play a role, public infrastructure projects now involve more transparent processes that allow greater scrutiny and input, leading to better outcomes through checks and balances and continuous improvements via environmental assessments.
With very few specific projects being named in the bills, the North Coast Transmission Line project is one of the few exceptions, the intent behind the bills is also in question. Rather than using these acts to promote projects that benefit primarily residents of British Columbia, Alexander speculates that the legislation will be used to drive forward projects that are designed to support the work of mining and natural resource companies – industries which engage in problematic and environmentally destructive activities in the eyes of some First Nations.
But beyond the specifics of the new laws, the way they were created sends a signal to First Nations in British Columbia. Alexander says the government skipped what is known as an interim legislative process or approach, which involves co-developing the bills with the input of First Nations in the province. He said no analysis was applied to ensure they conformed with UNDRIPA. This seems to signal a shift in how the province’s government relates to the First Nations of the province.
Devlin says the government once prioritized reconciliation and Indigenous rights through DRIPA and the UN Declaration but now appears to shift focus toward easing infrastructure development, possibly at the expense of s. 35 rights. He says this perceived pivot deeply concerns many First Nations communities.
Alexander sees the same shift and identifies it as part of the cycle.
He says Aboriginal law shifts over time – recently moving from negotiation to legislative reform, especially in BC, and now back toward litigation. Alexander expects a wave of legal challenges nationwide as provinces attempt to sidestep environmental laws, likely triggering new court cases that could eventually lead back to negotiations.
