B.C. avoided consulting First Nations

Les Leyne
Haisla First Nation Hereditary Chiefs Clifford Smith, from left, Rod Bolton and Sam Robinson on the opening day of hearings for the Enbridge Northern Gateway Project in Kitimaat Village in January 2012.   Photograph By Darryl Dyck

A clever argument about a detail in the federal-provincial agreement to co-operate when reviewing the Northern Gateway pipeline won the day in B.C. Supreme Court on Wednesday.

It resulted in a declaration by Justice Mary Marvyn Koenigsberg that B.C. abdicated its responsibility and breached the honour of the Crown by failing to consult with First Nations during the process of reviewing the planned crude-oil pipeline from Alberta to Kitimat.

The judgment doesn’t suspend the federal government’s approval of the pipeline, although the project looks to be on shaky ground regardless. But the process will have to be re-opened so B.C. can consult with one of the First Nations on the route, under direct orders from the judge.

It’s an embarrassing verdict for a government that prides itself on engaging with First Nations. It justifies some of the complaints over the past several years about how B.C. signed away too much authority when it agreed with the federal government to streamline environmental reviews by consolidating them. And it highlights yet again the importance of bringing First Nations on side when it comes to pipelines. That’s a complicated job that has only been accomplished in bits and pieces to date.

The “honour of the Crown” is a grand-sounding phrase that refers to the fundamental requirement on governments to act honourably on all aboriginal matters, in light of what has gone before. It has been in use for years and is uppermost in the minds of most governments when it comes to their dealings with First Nations. So a court finding — in 2016 — that B.C. breached that duty is a big deal.