Case: Brief: SCC Dismisses Leave to Appeal: William v. British Columbia, 2019 BCCA 74 (SCC No. 38548); and Fort McKay Métis Community Association v. Alberta Energy Regulator, 2019 ABCA 15 (SCC No. 38549)
On June 13, 2019, the Supreme Court of Canada (“SCC”) dismissed two applications for leave to appeal from the above two decisions involving Aboriginal rights and natural resource projects. One was brought by Roger William on behalf of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation; the other by the Fort McKay Métis Community Association.
When the SCC refuses leave to appeal, the decision being appealed becomes final. As the SCC does not give reasons when it refuses to hear an appeal, this leaves room for speculation about why.
William v. British Columbia, 2019 BCCA 74
This decision of the British Columbia Court of Appeal (“BCCA”) upheld the Province of British Columbia’s approval of a $15 million exploratory drilling program by Taseko Mines Limited for the New Prosperity open-pit gold and copper mine project near Williams Lake, within the traditional territory of the Tsilhqot’in Nation.
In this case, the Tsilhqot’in challenged BC’s approval of the drilling program on the basis of a breach of the duty to consult and accommodate.
Despite the strength of the Tsilhqot’in’s proven and claimed Aboriginal rights in the area and the serious impacts of the drilling program, the BCCA accepted that BC had discharged its duty to consult. The BCCA accepted that the approval was reasonable and that BC had provided a satisfactory explanation for it.
Fort McKay Métis Community Association v. Alberta Energy Regulator, 2019 ABCA 15
This decision of the Alberta Court of Appeal (“ABCA”) was itself a dismissal of an application for leave to pursue a statutory appeal under Alberta’s Responsible Energy Development Act. The Fort McKay Métis Community Association (“Fort McKay Métis”) sought to appeal a decision of the Alberta Energy Regulator (“AER”) to approve an oil sands project by Prosper Petroleum Ltd near Fort McKay, north of Fort McMurray.
The Fort McKay Métis had filed an objection to the oil sands project and was granted full participation in the AER’s hearing, opposing the project’s use of fresh water due to concerns about groundwater and surface water impacts which would adversely affect their Aboriginal rights as Métis. The AER found that the project would not prevent the Fort McKay Métis from continuing to exercise their Métis Aboriginal rights. The ABCA refused leave to appeal the AER’s decision on the basis that Fort McKay Métis had established no arguable error in law by the AER. The ABCA also noted that the Fort McKay Metis were granted participation in the hearing and had the responsibility of providing sufficient evidence to substantiate the adverse impacts on their rights
What These Cases Signal
Both of these cases involved authorizations of natural resource projects where the Tsilhot’in and the Fort McKay Métis had been granted some participation in the process. In both cases, the decision-maker accepted the existence of the Aboriginal rights in question and considered the submissions of the rights-holders, but found that on balance, the interest in proceeding weighed in favour of granting the authorization. Both Courts of Appeal allowed the decisions to stand and now the SCC has made those decisions final.
The broad similarities in these cases suggest that when an Aboriginal rights-holder has been granted participation in a process, the SCC may be less willing to interfere with the balancing of interests by the decision-maker. In the William v BC case specifically, the BCCA cited a recent statement of the majority of the SCC in Ktunaxa Nation v BC, 2017 SCC 54, that section 35 and the duty to consult and accommodate “guarantee a process, not a particular result”.
Both of the above cases may be read as an endorsement of that principle. These recent dismissals of leave of appeal by the SCC reveal no intention to stray from that course, even in the case where an Indigenous group has proven Aboriginal title to adjacent lands.