Ruling an advance in consultation issue
T he latest example of the heightened due regard that must be extended to B.C. First Nations comes from the Environmental Appeal Board, which ruled on a particularly touchy subject.
It was the use of water for fracking in gas exploration in northeastern B.C. The Fort Nelson band was leery of one specific project from the beginning, and over a period of years it made its concerns known.
Last week, it won the case, with a ruling from the appeal board that reversed an earlier government decision and rescinds Calgary-based Nexen’s licence to use the water.
The board cited two main grounds. The application was technically iffy from the start, and the board concluded the hydrological case for allowing the water use wasn’t sound. The second reason was the one familiar to everyone — lack of adequate consultation with First Nations.
Consulting with local First Nations bands on resource development has been a major part of any approval process for years now. The format of the consultation and the circumstances when it is required are continually being refined by the courts and by boards like the EAB that oversee the processes.
The process works strongly in favour of First Nations. The company was using between nine and 14 per cent of the water in a small lake and river system seasonally, and government officials treated the permitting as something that needed just routine consultation with the First Nation, since it would have no adverse impacts on their treaty rights.
Not good enough, said the EAB. The standard isn’t necessarily something that will do actual harm to the aboriginal right. The test is any conduct that has the potential to cause an adverse effect. So a First Nation must show a causal relationship between the licence and the potential for adverse impacts.
Citing those findings from earlier court cases, the EAB found that taking water from an area where band members hunt seasonally is industrial consumption, meaning the water isn’t returned to the system after it’s used.
It didn’t help that the river system ran dry in 2012. Despite a protocol to restrict water usage during low flows, the stream bed dried up during a drought year and the EAB found that excessive water withdrawals in that year likely caused or contributed to that occurring.
(It prompted this rather dry observation from the board: “There is evidence that fish or fish habitat may have been adversely affected … after the stream flow ceased and the stream bed went dry.”)
The board decided that even if the diversion of water “has not been conclusively proven to adversely effect the First Nation’s treaty rights, there is a logical causal relationship between the withdrawal … and the potential for adverse effects on aquatic and riparian habitat, which may affect species that depend on that habitat, including fish, beaver, moose and waterfowl that the First Nation depends on for the exercise of its treaty rights.”
Rescinding the permit doesn’t have much immediate effect. Nexen said Tuesday it has significantly slowed the pace of exploration and development in the region due to depressed commodity prices, “therefore this decision does not have any immediate impacts to our operations.”
Nonetheless, it is now on file and stands as the latest deliberation on the consultation issue, which will continue to come up in other circumstances. Even though the Fort Nelson First Nation won the day — subject to appeal — the decision also raises a sore point. The EAB cited correspondence showing government was saying one thing to the band and another thing internally. Officials told them it was willing to meet and talk about the water licence, but key officials were clearly going to issue the licence regardless.
This morning, Premier Christy Clark and her cabinet will meet with hundreds of First Nations leaders, the second major conference since the Supreme Court of Canada’s Tsilhqot’in decision.
That 2014 decision gave a Chilcotin band almost clear title to 1,750 square kilometres of their traditional territory and was another major advance on the consultation issue.
The government’s handling of the water licence will be in the back of some leaders’ minds. In fact, it’s just the kind of thing the meetings are designed to get beyond.