Uncertain environmental impacts remain difficult to challenge

December 14th, 2011 by Laura Bowman

Liard First Nation v. Yukon Territory (Minister of Energy, Mines & Resources), 2011 YKSC 55 (pdf)

The Liard First Nation is in the southeast Yukon. The First Nation participated in the territorial environmental assessment (EA) of a proposed quartz mine by Selwyn Chihong in the Howard’s pass area near Watson Lake.  After consultations with Liard FN the Yukon designated office approved the environmental assessment report. There were numerous outstanding environmental questions at the end of the environmental assessment process. The main dispute in the case was the deferral of controversial water and pollution issues to licensing. The Liard FN alleged that the approval of the environmental assessment was unreasonable and breached the duty to consult and accommodate.

The Yukon Supreme Court held that the “consideration” of environmental effects in a territorial EA did not require “a resolution or a determination of the significance of the environmental effects.”[98] The Court also stated in strong terms that the environmental assessment evaluation “does not have to provide finality and resolve all uncertainty prior to the regulatory procedure.”[105] On the issue of whether the Liard FN had been sufficiently consulted, the Court found that “[a]rguably, the Selwyn Project will have a significant impact on the Aboriginal rights of Liard First Nation…” However, “[t]here has been accommodation in terms of the changes that where made” to the EA evaluation report.[123]  Veale J. dismissed the application.

The Court emphasized the preliminary nature of environmental assessment studies and decisions.  The decision did not clarify how much uncertainty about impacts to First Nations and the environment is too much.  The Court did not express an appreciation of the limitations that parties face when forced to address major impact issues at later stages in the regulatory process.  Moreover, as with most other cases on the duty to consult the Court emphasized the procedure of responding to First Nation concerns in the EA process but did not address substantively whether this accommodated Aboriginal rights.

The decision confirms the longstanding difficulty applicants have convincing Canadian courts to go behind scientific uncertainties to address the sufficiency of EA reports.  The decision also does not establish intelligible standards for precautionary regulation and aboriginal accommodation.  This continues to deprive First Nations and the public of assessments based on credible science.  Law reform is needed to provide meaningful rights to challenge the adequacy of scientific information and mitigation measures in the EA process.

Also see:

Nlaka’pamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78 (CanLII)

Upper Nicola Indian Band v. British Columbia (Environment), 2011 BCSC 388 (CanLII)

Ka’a’Gee Tu First Nation v. Canada (Attorney General), 2007 FC 763 (CanLII)

Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

Quebec (Attorney General) v. Moses, 2010 SCC 17

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74


Filed in: Environment, Indigenous Law

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