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The Supreme Court of Nova Scotia has recently granted an application for judicial review relating to potential Crown funding for the construction of a new effluent treatment facility at Boat Harbour, Pictou County, Nova Scotia (the “Project”). In Pictou Landing First Nation v. Nova Scotia (Aboriginal Affairs), 2018 NSSC 306, the Pictou Landing First Nation (“Applicant”), argued that the Province had failed to consult the Applicant in considering whether to fund the Project. While the Province had agreed to consult with the Applicant regarding its approval of an Environmental Assessment for the Project, the Applicant claimed that the Province had engaged in separate confidential discussions directly with the Project’s proponent, Northern Pulp Nova Scotia Corporation, regarding potential Crown funding for the Project.

The Applicant claimed that the potential Crown funding constituted a separate “decision” that triggered an independent duty to consult with Applicant.

Background

The Project related to the design, construction and operation of a new Effluent Treatment Facility to replace the existing Boat Harbour Treatment Facility in Pictou County (the “Existing Facility”). The Existing Facility had operated since 1967, and was required by the provincial Boat Harbour Act, 2015 c. 4 to cease operations on or before January 31, 2020. The proposed Project was intended to replace the Existing Facility.

According to the Applicant, since 1967, residents of the nearby Applicant community had been exposed to airborne contaminants from the Existing Facility. The Applicant alleged that proceeding with the Project would result in continued adverse environmental effects on the community. The Applicant argued that without government funding, the Project could not proceed and the Existing Facility would be forced to close. The Applicant claimed that the Province’s decision as to whether or not to fund the Project could have adverse effects on established Treaty and Aboriginal Rights.

The Applicant also argued that the Province had denied it procedural fairness by failing to consider all relevant information before making its decision. According to the Applicant, the Province failed to consider the potential adverse effects of the environmental contaminants that would continue to be emitted if the Project were to proceed. The Applicant submitted that the Province was required to consider all relevant information in determining whether it had an additional duty to consult.

In Response to the Applicant’s assertions, the Province submitted that its decision concerning funding did not create a new impact on any Treaty or Aboriginal rights of the Applicants, and, as such, no additional duty to consult was triggered and procedural fairness had not been denied.

Procedural Fairness

The Court rejected the Applicant’s arguments concerning procedural fairness, finding that the Province was prepared to consult the Applicants about the potential adverse environmental effect of the Project when considering the proponent’s application for an Environmental Assessment approval.

The Duty to Consult

Despite the Court’s finding with respect to procedural fairness, the Court did conclude that the Province had a duty to consult the Applicant concerning its decision to fund the Project.

The Court reviewed the case law relating to the duty to consult, finding that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that may adversely affect that right. The Court reasoned that the mere potential for adverse impact is sufficient to trigger a duty to consult.

The Court accepted the Applicant’s submission that the Crown’s funding of the Project would increase the likelihood of the Project proceeding, thereby increasing the risk that the Applicant’s treaty rights would continue to be impacted by the discharge of environmental contaminants. According to the Court, the Province’s funding of the Project could potentially result in adverse effects on the Applicant’s right to occupy lands to occupy the nearby lands.

The Court also found that it would not be consistent with the honour of the Crown for the Province to fund the Project without any consultation concerning the funding. The Court stated that Crown funding without consultation could not only be perceived as “sharp dealing”, it would not constitute a “Meaningful effort” to consult as required by the jurisprudence. The Court also noted that the Crown’s funding of the Project would result in the Crown having a tangible interest in the Project, such that its ability to assess the proponent’s Environmental Assessment application with impartiality could be compromised.

The Court ordered that the consultations between the parties must include consideration of whether the Province should fund the construction and design of the Project, and, if so, what form that financing would take.

This decision illustrates the relationship between environmental assessments and the duty to consult. As this case demonstrates, adequate engagement with any Aboriginal stakeholders is a necessary component of the Environmental Assessment approval process. Aboriginal and Treaty rights can include a wide range of land-use rights, and it is important for project proponents to know how an undertaking may affect those rights.

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