| | | Very interesting and informative Supreme Court decision about First Nation rights to stall or curtail projects.
The decision will no doubt have affects on future Mining, Pipelines, Oil, or any other project which could be deemed proceeding would be in the greater public interest. The Case where the decision was made concerned the site C hydro project which was opposed by a number of bands.
" In the Federal Court proceeding, the Court recognized that there was no underlying requirement that First Nations and the Proponent reach agreement. The Honourable Justice Manson cited heavily from the recent decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352, where the Court, itself citing Haida, noted that,
"The focus is not on the outcome, but on the process of consultation and accommodation" and that
"Fundamentally, the Crown is not under a duty to reach an agreement; the commitment is to a meaningful process of consultation in good faith".
Justice Mason explained that what was required was "good faith efforts to understand the concerns of the Applicants" After noting that a commitment to the consultation process does not require a duty to agree.
[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.
ConclusionThese decisions illustrate that just as the duty to consult does not imply a duty to agree on the substantive issues, there is similarly no requirement that parties agree on the sufficiency of consultation itself. While the Court will indeed supervise the Crown's actions to ensure the duty to consult has been met, that is not the same as requiring agreement. |
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