On September 17, 2009, in Nlaka'pamux Nation Tribal Council v. Griffin 2009 BCSC 125, the Honourable Mr. Justice Sewell of the BC Supreme Court ruled against the Nlaka'pamux Nation Tribal Council (NNTC) in a case involving the proposed expansion of the Cache Creek landfill (Expansion) and NNTC's Petition against a section 11 Order (Order) issued by the British Columbia Environmental Assessment Office (EAO) on October 22, 2008.
At issue in this case was how the EAO should have fulfilled its duty to consult the Nlaka'pamux Nation with respect to its review of the Expansion project under the Environmental Assessment Act (EAA), taking into account, a division of opinion within the Nation.
NNTC argued that the decision by Mr. Griffin, the EAO Project Assessment Director, to exclude it as the representative of the Nlaka'pamux Nation, meant that there was not and could not be adequate consultation with the Nlaka'pamux Nation on any decision to issue an EA Certificate. However, one circumstance the EAO had to consider was that the two First Nations Bands that would be most affected by the Expansion, Ashcroft Indian Band (Ashcroft) and Bonaparte Indian Band (Bonaparte), supported the project, while the NNTC, where Ashcroft is a member, opposed it. Ashcroft and Bonaparte were included in the Order and Terms of reference, while NNTC was not. Bonaparte is a member of the Secwepemc Nation.
The government on the other hand, argued that the only truly effective consultation with NNTC was on a government to government basis and that this basis for consultation was in place through an amendment made to the section 11 Order. The amendment added a paragraph to the effect that the EAO may engage in additional consultations with an aboriginal entity, whether or not it is named as a "First Nation" in the Order. The government also argued that the NNTC was well aware that they were not included in the Terms of Reference, and Ashcroft argued that the NNTC did not speak on behalf of the people of the Ashcroft Band.
On reviewing the Petition on a standard of reasonableness, Justice Sewell held that the EAO properly defined the scope and content of consultation appropriate when issuing the Order, given the particular circumstances it had to consider and that it satisfied its obligations to consult, pursuant to the Constitution Act and the EAA. One of the main circumstances to consider in this case was the divergence of opinion between NNTC and Ashcroft, and the authority of NNTC to speak on behalf of all Nlaka'pamux people.
In addressing this point, he commented (at para 73):
"What is the government to do when faced with a diversity of putative representation on behalf of a First Nation? In my view, the government must discharge its duty to consult by taking reasonable steps to ensure that all points of view within a First Nation are given appropriate consideration. As I indicated above, government also has a duty to carry out its statutory mandate under applicable legislation. It must therefore balance its obligations to consult with its obligation to carry out its statutory duty in an effective manner."
Justice Sewell saw no objection in principle to EAO consulting with a specific Band, if the government also undertook appropriate consultation with the First Nation (which he believed it would). Given this, Sewell found that "it cannot be said that the NNTC has been denied an appropriate and effective opportunity to be consulted and accommodated with respect to the environmental assessment of the Expansion project."
In sum, this case could be said to stand for the proposition that in situations where there are numerous First Nations Bands and organizations involved, with some having a divergence of position, as long as the Crown (and parties delegated to by the Crown) properly define the scope and content of consultation with the First Nations parties involved (given the circumstances existing) the duty to consult and accommodate may be fulfilled. Separate consultation protocols by the government can be the right approach, particularly "where there is a clear divergence of opinion between the putative representative of the Nation and the representatives of the Band."
As a side note, with respect to the landfill, the province approved a one-year annex to the landfill in early September, while the long-term Expansion project remains with the EAO for consideration.