GARY R. YABSLEY DARYL J. COLLIER BRIAN A. HANSON W. BRUCE CAMPBELL GREGORY J. MCDADE, Q.C. JOHN R. RICH KARL P. STEPHAN JIM REYNOLDS CHARLES G. PIERCEY BRENDA A. MCLUHAN F. MATTHEW KIRCHNER R. BRENT LEHMANN SHAMIM SHIVJI KEVIN D. LEE RENEE COLLINS GOULT MICHELLE M. ELLISON JAMES P. TATE LESLEY A. GIRODAY KATE M. BLOMFIELD AARON S. BRUCE PETER I. BONNY MAEGEN M. GILTROW LISA C. GLOWACKI ALEXANDRA E. FLYNN ANGELINE S. B. NYCE KRISTY POZNIAK

CERTAIN MEMBERS OF THE FIRM ARE ALSO CALLED TO THE BARS OF

ALTA., SASK., MAN., ONT., N.W.T., NUNAVUT,TEXASAND NEW YORK STATE

February 4,2008 File No. 07-001 3 Via email

BC Utilities Commission Box 250,900 Howe Street Sixth Floor Vancouver, BC V6Z 2N3

Attn: Erica Hamilton, Commission Secretary

To Whom It May Concern:

Re: British Columbia Transmission Corporation Application for a Certificate of Public Convenience and Necessity for the Interior to Lower Mainland Transmission Project, No. 3698486

Please find attached the Kwikwetlem First Nation's submissions on the First Nation scoping question posed by the BC Utilities Commission in the above-noted application.

Sincerely,

RATK 0 IF &COMPANY LLP

LAGIkdk Enclosure

www.ratcl i ff.com Suite 500, 221 West Esplanade, North Vancouver, BC V7M 3J3 Ph: 604-988-5201 . Fax: 604-988-1452

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C5-3

IN THE MATTER OF The Utilities Commission Act, R.S.B.C. 1996, c. 473 and British Columbia Transmission Corporation Application for a Certificate of Public Convenience and

Necessity for the Interior to Lower Mainland Transmission Project

AND

IN RESPECT OF the Kwikwetlem First Nation ("Intervenor")

WRITTEN SUBMISSIONS - SCOPING QUESTION

A. Introduction

1. The Kwikwetlem First Nation ("Kwikwetlem") respectfully submits that the issue of consultation and accommodation efforts with First Nations affected by the Interior to Lower Mainland Transmission Project ("ILM Project") is an important and relevant part of British Columbia Utilities Commission (the ''Commission" or the "BCUC") considerations in deciding whether to grant the Project a Certificate of Public Convenience and Necessity ("CPCN").

2. The question for determination, as phrased by the BCUC, is not necessarily accurate. The Kwikwetlem submit that the question should not be focused just upon the 'adequacy' of the Crown's efforts - rather the issue of consultation and accommodation is both:

(a) an essential pre-condition relevant to the BCUC decision (upon which the BCUC must hear evidence if it is alleged that same has not occurred);

(b) and, in respect of requisite accommodation, a potential substantive economic and environmental impact upon the project (upon which the BCUC should hear evidence).

3. As an 'essential pre-condition', the issue of whether the constitutional obligation of the Crown to consult and accommodate has been met is one requiring a 'correctness' standard. It is not a question of assessment of 'adequacy' or degrees of compliance or the good intentions of others to comply - the duty must simply be fully met, or no decision can be made. It is one in which the Commission has no 'discretionary' role - it must ensure that the duty has been fulfilled before it makes a decision, and it must be correct.

4. It is not necessarily the Commission itself that must consult, but if it does not think it appropriate to do so, the BCUC must be satisfied that such consultation duties have been met before the Commission can make its statutory decision, and the Applicant must bear that burden of proof. First Nations are entitled to be heard, through evidence, on that question. If the Applicant relies upon other Crown processes to meet that duty, then either those processes must have been completed, or the Commission Panel must be willing to

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hear evidence as to the existence and extent of the duty, and how it will be met. In that regard, this Application is deficient.

5 . For the Commission to defer to later processes, which may or may not occur properly, (and in which First Nations may not participate) would be to turn a blind eye to the present failure of the duty, and would not be in keeping with the Honour of the Crown. To rely on consultation that occurs 'after the fact', once the decision has already been made and the CPCN issued, also would preclude 'good faith' consultation and negotiation.

6. Further, it is logically obvious that if the project has the potential to substantially infringe First Nations interests, and it is assumed the duty of consultation would occur in good faith and will result in some meaningful mitigation and accommodation, then there may well be substantial changes in the project that will occur, and possibly substantial economic impacts upon the project that should be considered. If the BCUC refuses to hear this evidence, it would issue the approvals under partial and perhaps mistaken assumptions. To make the decision on the current project - unchanged in routing, environmental impacts and economics -- is to assume that the duty of consultation is an empty charade.

It is no answer that another Crown agency or agencies (i.e. the Environmental Assessment Office ("EAO"), Crown Lands, the Ministry of Energy, etc.) may also have similar obligations to ensure that the duty has been met. The law provides that all agencies have that duty. The BCUC can no more delegate those issues to another body than it could delegate its need to consider environmental concerns (which will also presumably be addressed by the EAO and other agencies). As the first in the line of statutory decision-makers, it is the BCUC that bears its own burden to ensure that the Crown's duties have been met.

8. It is respectfully submitted that prior decisions to the contrary (e.g. the VITR and Rev-5 decisions) were wrongly decided, or distinguishable on the facts, and should not be followed in this instance.

9. The Kwikwetlem submit that the Application is not ready for hearing because it does not properly account for the duty of consultation that arises with the Kwikwetlem, nor does it properly account for the impacts of accommodation that may arise upon fulfillment of that duty.

10. These submissions will canvas:

(a) the scope of the duty of consultation and accommodation;

(b) the jurisdiction of the Commission Panel to consider consultation and accommodation efforts;

(c) the inappropriateness of relying on the BC Environmental Assessment Process ("EAP") to ensure meaningful consultation and accommodation;

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(d) issues of timing.

B. Factual Assertions

1. The following factual assertions would be the subject of evidence before the Commission in the normal course, and should be assumed for the purpose of determining the legal question of relevance and jurisdiction in this hearing:

(a) The Kwikwetlem have a strong prima facie case of aboriginal title and rights within the proposed corridor. The Kwikwetlem's Traditional Territory encompasses the whole of the Coquitlam River watershed and adjacent lands and waterways. The eastern boundary of the Territory is east of the Pitt River. The Kwikwetlem have never ceded or surrendered their Territory; as such they have aboriginal title to their Territory and unextinguished aboriginal rights throughout it.

(b) The British Columbia Transmission Corporation's ("BCTC") ILM Project will substantially infringe upon the aboriginal rights and title interests of the Kwikwetlem from the Pitt River west to and including the site of the Meridian Substation endpoint of the Project.

(c) The Crown has not yet fulfilled its duty of consultation and accommodation with the Kwikwetlem. Although there have been meetings between BCTC and the Kwikwetlem, these meetings have been preliminary in nature and are insufficient to fulfil the duty of consultation and determine the required accommodation.

(d) The proposed EAP will not be able to meet the duty of consultation and, if necessary, accommodation. The Kwikwetlem may not participate in the EAO process in the future, and certainly do not intend to participate in consultation and accommodation discussions with the Crown through the existing EAO process without substantial changes to that process. The EAO has no proper statutory mandate for consultation, has no appropriate budget for accommodation, and no sufficient ability to alter the project to meet duties of accommodation [this would be the subject of expert evidence if necessary].

C. Scope of the duty of consultation and accommodation

1. The duty to consult arises as a result of the test for justification of infringements to aboriginal title and/or rights. The question is not whether the Commission's decision would infringe aboriginal title and/or rights, but rather whether it is a decision relating to an activity which has the potential to infringe. The Crown has the power to infringe, only where it can show justification, which requires prior consultation and, if necessary, accommodation.

2. The scope of the duty to consult was discussed in Delgamuukw v. British Columbia, where the Court considered it, and the duty to accommodate, in the context of established claims.

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The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishingxegulations in relation to aboriginal lands.

Delgamuukw v. British Columbia, [I9971 3 S.C.R. 1010, para. 168.

3. The Supreme Court of Canada held in Haida that the Crown has a duty to consult with aboriginal people when it makes decisions, sets policy or contemplates conduct that might adversely affect asserted aboriginal interests as part of the reconciliation process for unproven aboriginal title claims. The Court addressed the timing of the required consultation:

But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest 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 might adversely affect it ... [emphasis added]

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 51 1, para. 35.

When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation . . . [emphasis added]

Haida, supra, para. 47.

4. In ChiefApsassin v. B. C. Oil and Gas Commission, counsel for the B.C. Oil and Gas Commission argued that the Commission owed the Saulteau people a fiduciary duty as part of its fact-gathering process. ( ~ l t h o A ~ h the Court found it unnecessary to resolve this issue on appeal, it is notable that this was argued by counsel for the Commission itself). In the present hearing, the question is posed in respect of the 'fact-gathering' process of the BCUC - i.e. the evidentiary phase.

Chief Apsassin v. B. C. Oil and Gas Commission, 2004 BCCA 286,

para. 29.

5. In Dene Tha ', the Federal Court upheld a clearer view of participation in the decision- making processes. The Court held that the exclusion of the Dene Tha' First Nation from discussions and decisions regarding the initial design of a joint regulatory and environmental review process resulting in a 'Co-operation Plan' for same violated their right to be consulted with respect to the MacKenzie Gas Pipeline project.

6. Specifically, the Court held that as the Joint Review Panel process was a means by which the rights of the Dene Tha' would be affected - since the assessment process would determine what questions would be asked in the assessment and ultimately whether the project should be approved - the Dene Tha' had to be involved at the earliest planning stages. The Court enjoined the Joint Review Panel from considering any aspect of the proposed project that could affect aboriginal rights until the exclusion of the Dene Tha' from the assessment process was remedied.

Dene Tha ' First Nation v. Canada (Min. of Environment), 2006 FC 1354, paras. 108 and 133.

7. In Dene Tha', the Court found it irrelevant that the 'Co-operation Plan' conferred no rights.

By itself, it confers no rights, but it sets up the means by which a whole process will be managed. It is a process in which the rights of the Dene Tha' will be affected.

Dene Tha ', supra, para. 108.

8. In the most recent aboriginal title decision in BC, the Court in Tsilhqot 'in Nation v. British Columbia was quite clear that infringements of aboriginal title require justification, and therefore require proper consultation. Failure to respect the aboriginal interests in the decision-making process will amount to a denial of title, and cause 'justification' to fail:

Planning to use the land and resources of an Aboriginal group without acknowledging the constitutionally entrenched interests of the Aboriginal group requires justification. Infringement or denial of title can occur at each stage of any land use process and so, at each stage, the Crown must justify its proposed actions with respect to Aboriginal title land . . . [emphasis added]

Tsilhqot 'in Nation v. British Columbia, 2007 BCSC 1700, para. 1067.

It bears repeating that the right to use resources, the right to choose land use, and the right to direct and benefit from the economic potential of the land are all aspects of Aboriginal title. If the Crown is engaged in land use planning for its own economic benefit and the economic benefit of third parties, then such activities are a direct infringement on any Aboriginal title.

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Tsilhqot 'in, supra, para. 1077.

D. The Nature of the Decision -- Jurisdiction of the Commission Panel to consider consultation and accommodation

1. The BC Utilities Commission is an instrument of the Crown. Its jurisdiction arises under provincial legislation. The decisions made by the Commission are a part of the regulatory structure in which the Crown makes decisions about an important resource.

2. As a statutory decision-making body of the Crown, the Commission is subject to the general constitutional obligations of the Crown, including s. 35 of the Constitution Act and the law set out in Haida. As the first and primary government agency involved in this matter, we submit that the Commission cannot make decisions without ensuring that the Kwikwetlem's constitutional rights have been upheld.

3. To be clear, the question at issue is not whether the Commission itself has the obligation to consult or the duty to "supervise" the Crown's consultation. The question is whether the evidence of the failure to fulfil the duty of consultation, or the impacts of proper accommodation, should be outside the scope of this proceeding.

4. It remains clear that it is the Crown that always has the primary duty to consult. It is not the direct duty of either the Commission or even the Applicant, BCTC. The Commission, however, is the statutory decision maker that must consider whether that duty on the Crown has been met before making its decision to approve a CPCN.

5 . The issuance of a CPCN would constitute an important decision on the part of the Crown in respect of the use of resources which are subject to aboriginal title and rights and therefore requires that the duty of consultation and, if necessary, accommodation be respected.

6. In Squamish Nation v. The Minister of Sustainable Resource Management the British Columbia Supreme Court summarized the appropriate questions to be asked in order to assess whether the duty to consult will arise and its scope in respect of statutory decisions which cause a potential infringement to aboriginal rights and title:

(i) does the decision purport to grant rights, in enforceable terms, either actual or conditional ones, in relation to lands which would be inconsistent with aboriginal title or rights?;

(ii) does the decision constitute the imposition of obligations or the fettering or restriction of Crown discretion over lands upon which there were duties of consultation?;

(iii) does the decision amount to an important decision with respect to the use of aboriginal title lands (including the identity of the future operator)?;

(iv) is the decision a statutory decision which is in furtherance of a legislative or administrative scheme that has the potential to infringe aboriginal rights or title?; and

(v) is there potential to affect the claimant's rights?

Squamish Nation et al v. The Minister of Sustainable Resource Management, 2004 BCSC 1320, para. 75.

7. In this project, the answer to every one of those questions is a resounding 'yes'.

8. Section 45 of the Utilities Commission Act provides that no person shall begin the construction or operation of a public utility plant or system without first obtaining from the Commission a certificate declaring that the facility is required to satisfy public convenience and necessity. In other words, for an approval, the Commission needs to be satisfied that the new system or extension is in the public interest and necessary for the public's convenience. mote: this is NOT a question that is before the EAO or any other regulatory body.]

9. We submit that the fair and lawful treatment of First Nations is a fundamental component of the 'public interest'. If the Commission were to conclude that an assessment of the adequacy of consultation was outside the scope of this proceeding, it would be in fact deciding that aboriginal rights and title, and the constitutional legal duty to respect them, were not within the scope of 'public interest'. This would, in our respectful submission, be jurisdictional error.

10. The Commission's decision on this Application will determine whether public convenience and necessity require the proposed extension of the public utility system. As such, it is the Commission that ultimately determines whether the infringements resulting from the proposed extension will become a reality. With this right comes the responsibility of ensuring that the obligations that flow from an identified infringement of aboriginal rights and/or title have been satisfied.

11. It is this Commission's decision which will approve the ILM Project (including which First Nations will be forced to accept the new transmission lines and rights of way).

12. The Kwikwetlem submit that where these activities would include infringements on asserted aboriginal interests, the Commission has the jurisdiction, and is in fact bound, to consider consultation and accommodation with the affected First Nations in determining whether to make an order with respect to the proposed Application.

13. In addition, we observe that even if the Commission were to employ only a strict cost- effectiveness test as a means of considering the 'public interest', (which the Kwikwetlem submit would be inappropriate in the context of an Application that seriously affects First Nations' interests), it would be incumbent on the Commission to assess the results of consultation and accommodation efforts made to date, and expected or required to be made, in order to properly assess the estimated costs of such efforts to BC ratepayers.

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14. As the statutory decision maker who has been delegated authority by the Crown to address questions concerning the regulatory structure dealing with the resource at issue, the Commission must necessarily assess whether the duty of consultation and accommodation has been met. To approve of the expansion of the public utility system without this assessment would amount to a tacit permission to overlook the duty of consultation and accommodation, thus rendering it meaningless.

E. Inappropriateness of relying on the EAO to ensure meaningful consultation and accommodation

1. The Kwikwetlem submit that it is incumbent on the Commission to consider consultation and accommodation, as a part of the CPCN application process, and that this duty cannot be delegated or deferred to the EAO.

2. If the duty of consultation exists for one decision, it cannot be avoided by claiming that a later decision will also deal with it.

3. Consultation is a continuing obligation which may arise throughout a series of decisions. The fact that the infringement results from previous decisions, has been the subject of previous decisions, or will require hture decisions, does not preclude the requirement of consultation.

4. It is not an 'either-or' situation between the BCUC and EAO. Where two processes or decisions exist, both decisions will require consultation.

5 . This is clear from the case law, including Gitxsan Houses v. British Columbia (Minister ofForests), Haida, Dene Tha ', and Squamish Nation. The courts have consistently broadly construed the notion of impacts in relation to whether there exists a duty of consultation.

6. In the Supreme Court of Canada in Haida, the Crown argued that it could avoid consultation at the TFL renewal stage, because consultation would occur at later stages under the Forest Act. The Court determined that a replacement licence required consultation where existing operations could constitute an infringement, even though it was simply continuing the status quo.

I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision reflects the strategic planning for utilization of the resource. Decisions made during strategic planning may have potentially serious impacts on Aboriginal right and title.

Haida, supra, para. 76.

7. In Gitxsan, the Court considered the Skeena Cellulose bankruptcy and the transfer of the shares of a tree farm licence to a new owner. This case involved only a change in control of the underlying shareholder, a change that had to be approved by the Minister as per the Forest Act. As in Haida, the Crown argued that consultation in respect of forestry could

take place in other decisions. Nevertheless, in Gitxsan, the Court found that consultation is a "continuing duty" and required consultation as a part of that decision-making process:

There is no practical distinction between a transfer of a tree farm licence from one party to another (as occurred in Haida Nation) and a change of control of the holder of tree farm and forest licences such that the holder becomes a wholly owned subsidiary of another corporation (as occurred in this case). In each situation, a different party will, either directly or indirectly, have the ability to make decisions with respect to forest tenure licenses . . .

Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4th) 126 (S.C.), para. 78.

If a forest tenure licence has been issued in breach of a Crown's duty to consult, the duty continues and the Crown is obliged to honour its duty each time it has a dealing with the licence . . . There is an obligation on the Minister to ensure that the Crown's continuing duty has been fulfilled before the infringement is perpetuated by a further transaction involving the licence . . . [emphasis added]

Gitxsan, supra, para 8 1.

The fact that there may be a duty of consultation on him prior to a replacement of the tree farm licence under s. 36 does not diminish from the requirement that he was required to fulfil his duty of consultation prior to deciding whether to consent to Skeena's change in control. It is a continuing duty which must be observed each time the Crown has a dealing with the licence. [emphasis added]

Gitxsan, supra, para. 86.

8. The question of an overlapping duty with future EAO processes was squarely raised in Squamish Nation. There the Crown argued, as the applicants do here, that the existence of a required subsequent EAO process would allow the Crown's obligation to be fulfilled at that time. That argument was clearly rejected:

The duty of consultation, if it is to be meaningful, cannot be postponed to the last and final point in a series of decisions. Once important preliminary decisions have been made and relied upon by the proponent and others, there is clear momentum to allow a project. This case illustrates the importance of early consultations being an essential part of meaningful consultation . . .

Squamish Nation, supra, para. 74.

Thus, in my view, the duty to consult in this case arises at the earliest decision making by the government in an approval process leading to the possible infringement of claimed aboriginal rights.

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Squamish Nation, supra, para. 83.

Thus, the need for consultation to take place at the earliest opportunity arises, before parties seeking land rights from the government have invested such time and money that practical frustration ripens into legally enforceable rights against the Province and ultimately to the detriment of all British Columbians.

Squamish Nation, supra, para. 92.

The duty to meaningfully consult in this case arises in relation to the earliest decisions because LWBC knew, from discussions with the Squamish Nation in relation to the GAR 96 earliest proposal, that significant rights were being asserted by the Squamish Nation which could result in the need for such significant accommodation that proposals by GAR 96 or others might never be able to go forward.

Squamish Nation, supra, para. 93.

9. Similarly, in Dene Tha ', the Federal Court was not persuaded by the argument that consultation would take place after the appointment of the Joint Review Panel, in that process and later processes. The Court determined that the duty to consult arose before an agreement with respect to how the environmental assessment would be conducted was concluded. (See Dene Tha ', at paras. 27, 1 10 and 1 14).

10. It is respectfully submitted that these decisions are directly relevant to the question before this Commission, and ought to be followed. In particular, it is submitted that the Squamish Nation decision of the BCSC is binding on the question of deference to the EAO.

11. The Kwikwetlem submit that the duty of consultation and, if necessary, accommodation, arises at all stages of the ILM Project, starting at the earliest possible stage. Whether or not consultation and accommodation efforts will be properly assessed during the EAO (which we suggest is not the case) is not relevant here, and certainly does not imply that it need not be assessed at this stage in the process as well.

12. Because the hearings before the Commission occur at an earlier stage than the EAP, and because the Commission is required to consider the 'public interest' of which First Nations' interests form a part, it is the Commission that is charged with addressing consultation and accommodation efforts made at this stage, before granting a CPCN.

13. In that regard, we respectfully submit that the Commission's Decisions in the VITR and Rev 5 are not good law.

14. It is submitted that the Commission has accepted the need for an assessment of consultation and accommodation in its most recent Decision dated January 29,2008 (the "2007 EPA decision"). Acceptance of the ILM Project would clearly be "within the purview of the broad language of 'ccontemplates conduct" used in the Haida decision.".

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In this case, the project itself unquestionably has 'new physical impacts', and approval of the CPCN without consideration of the failure of consultation and accommodation would be, in those circumstances, "jurisdictional error" (at pg 120).

15. At page 47 of the VITR decision, the Commission found that "if the Commission Panel can rely on the EAO process, then there is no legal duty to consult and accommodate at this stage, that is, for the purposes of the Commission process." In coming to this conclusion, the Commission relied on a passage from Haida, at para. 5 1, where McLachlin C.J. stated:

It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts . . . It should be observed that, since October 2002, British Columbia has had a

'

Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries' and agencies' operational guidelines. Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision-makers.

16. We note that the BC provincial policy has not been followed in respect of this process. Under that policy (which should be the subject of evidence before this Commission) the consultation would have to occur prior to this application being decided.

17. Further, the regulatory process established by British Columbia does not direct either the BCUC or the EAO to engage in consultation. That arises as a result of constitutional law.

18. It should be noted that the EAO has neither a statutory mandate to consider the need for the project, nor a mandate to consider the public interest - that is squarely the mandate of the BCUC. The role of the EAO is advisory only, and simply provides 'assessment' information to the Minister.

F. Inadequacy of the EAO to satisfy the duty of consultation and accommodation

1. Further, we submit, that as between the EAO and the BCUC, there is no statutory reason to defer to the EAO. It is neither the best place to resolve consultation, nor the most able to do so. It has no statutory mandate to 'consult' (in aboriginal law terms) and no ability to deal with accommodation.

2. Further, under the terms of the current Environmental Assessment Act, S.B.C. 2002, c. 43 ("the Act") (since 2002 revisions), EAO is advisory only. It has no decision-making power (the Minister issues a certificate).

3. The current EAO process fails to meet First Nations' concerns for a number of reasons, and many First Nations decline to participate in the process.

4. While the Section 11 Procedural Order for the ILM Project appears to address First Nations' concerns on its face, the Kwikwetlem submit that the EAO cannot adequately

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serve as the forum through which meaningful consultation is effected, for the following reasons.

(a) First Nations have no power of authority over the design of the EAP, or the ultimate decision taken. This power rests with the Minister, who makes a final decision as to approval without any further recourse to First Nations.

(b) Under the Act, it is the EAO who drafts all the documents with legal power, as well as interim and final reports. It remains the EAO or the Minister who determines the scope of the assessment and procedures. No matter how much the Kwikwetlem are "consulted" in the design, they are ultimately powerless in the process.

(c) The Kwikwetlem submit that a proper process that recognized the existing legal interests of a First Nation would have a true ioint role for First Nations in process design and other decision-making processes. Otherwise, First Nations' interests may not be fairly served.

(d) Under the Act, the EAO's practice as been to create a "Working Group" of stakeholders comprised of representatives of provincial, federal or local government agencies and departments whose mandate is to review a proponent's environmental assessment applications. The table is made up of technical, not political, representatives of government. Discussions regarding accommodation of infringements of aboriginal rights and title are too specialized, complex and lengthy for this type of forum.

(e) The EAO has no authority to accommodate infringements of aboriginal treaty rights and aboriginal title. Such accommodation typically includes compensating First Nations by way of a transfer of land, natural resources, or cash or revenue sharing. The EAO has no statutory mandate or budget to make such commitments on behalf of the Province. Such commitments require the involvement of senior civil servants and Cabinet Ministers.

(f) Thus, even if properly consulted by the EAO, a First Nation cannot be properly accommodated by them. Consultation and accommodation should not be separated in such a manner. Such a process does not give rise to the "good faith negotiation" required by the Court in Haida and other decisions.

(g) First Nations are expected to fund their own participation in the EAO, reliant on minimal handouts from proponents or very limited funds from the EAO. This often results in voluntary participation or participation by staff with very limited training. The ability to participate fully in the EAO processes on a fair and equal basis would require access to proper participant funding.

5. It is the Minister who has the final decision-making authority following environmental assessment pursuant to s. 17(3), a discretion completely unfettered by statute. The Act does not direct, mandate or authorize the Minister to take First Nation consultation and accommodation into account.

6. The 2002 version of the Act removed almost all of the provisions that referenced a separate role for First Nations in the environmental assessment review process, and thus removed the ability to meaningfully consider the impacts of a project on First Nation communities. The changes to the 2002 Act which resulted in any appropriate consideration of First Nations' interests in the EAP being eliminated include:

(a) The purpose section of the Act, which ensured First Nation participation in the EAP as a purpose of the Act, was dropped;

(b) The provision enabling mandatory First Nations' representation in the EAP, through the project committee, was dropped;

(c) Provisions enabling First Nation involvement in project decision-making, through the project committee, were dropped;

(d) Provisions enabling reporting on potential impacts on aboriginal rights were dropped; and

(e) Provisions requiring information distribution to, and consultation with, First Nations were dropped.

(Attached is Schedule A to these Submissions "A Comparison of the Former Environmental Assessment Act with the New Environmental Assessment Act in Terms of Specific Obligations to First Nations" which sets out further detail with respect to these changes.)

7. The removal of First Nations involvement was not accidental and was well-known. In British Columbia, Legislative Assembly, Official Reports of Debates (Hansard), 14 (14 May 2002), during second reading of Bill 38, MLA J. Kwan observed:

(a) Bill 38 eliminates many of the strengths of B.C.'s environmental assessment process. Under this legislation, project committees, public advisory committees and environmental assessment boards will be lost. These provisions in the current legislation are the backbone of public consultation and participation in the process. Without them, communities, first nations and concerned citizens will lose their guaranteed consultation. (p. 3465)

(b) The really disappointing change, however, is the removal of the project committee stage. Originally, after an application for project review arrived, a project committee was established to provide the executive director and minister expertise, advice, analysis and recommendations as well as to advise the executive director and the minister on the results from the public advisory committee and to comment on the potential effects and mitigation opportunities involved in the project. The project committee was legislated to include representatives from the government of Canada, the government of B.C., affected municipalities and any first nation whose traditional territory is involved. Bill 38 will remove this much-valued guaranteed involvement in the process. (p. 3465)

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(c) Then there are the first nation concerns. These changes will impact the ability of affected first nations to receive notice and access to information, as well as actively participating in the process via the project committee, thus losing their ability to have a direct impact on the nature and the direction of the assessment review and recommendations for decisions. (p. 3465)

(d) These changes are a major step backward for first nations' involvement. (p. 3465)

8. Similarly, a West Coast Environmental Law Association report on Bill 38 concluded:

The role of first nations in the environmental assessment process is completely marginalized. Whereas the old act involved aboriginal governments at the project committee level, thus reflecting a commitment to a meaningful role for aboriginal governments, the new act removes any reference to first nations with one minor exception: section 29 acknowledges the Nisga'a treaty.

The only aboriginal government that is recognized in this process is the only one that has signed a modern treaty with the B.C. government. This change is particularly alarming as the B.C. Supreme Court has upheld the role of first nations under the old act. The new act directly undercuts the court's affirmation of the role of first nations by removing them from the process altogether.

By removing consideration of aboriginal rights and interests from the environmental assessment process, it means that aboriginal governments may have no option but to go to court or to resort to public protest to ensure that their views are considered. The government's deliberate removal of a cooperative mechanism in this act may result in greater uncertainty and more delay for project proponents in the long run.

OfJicial Reports of Debates (Hansard), 1 (15 May 2002) at 3480

9. For all of the aforementioned reasons, the Kwikwetlem submit that the EAO is not the proper forum through which to ensure that meaningful consultation or accommodation efforts have been undertaken. Given this, the Kwikwetlem submit that the Commission cannot rely on the eventual EAP to address these concerns and so the Commission should not therefore refuse to consider the adequacy of efforts made on this basis.

10. Alternatively, before the Commission is able to consider the deferral or delegation of its constitutional obligations to the EAO, it is submitted that, at the very least, the Commission must hold an evidentiary hearing to consider whether the EAO process will consider the necessary consultation, whether it is able to do so, and whether First Nations will participate in that process. Such questions cannot be assumed, or pronounced as a given under the law, in the absence of clear statutory guidance. At best it is a matter of practice, which must be the subject of evidence.

All of which is respectfully submitted this 4th day of February, 2008.

Gregory J. McDade, Q.C. Kwikwetlem First Nation

w Ratcliff & Company LLP

Suite 500,22 1 West Esplanade North Vancouver, BC V7M 3 J3

Telephone: (604) 988-5201 Fax: (604) 988-1452

W:\07\0013\CD\Consultation Submissions Feb4 O8.doc

A COMPARISON OF THE FORMER ENVIRONMENTAL ASSESSMENT ACT WITH THE NEW ENVIRONMENTAL ASSESSMENT ACT IN TERMS OF

SPECIFIC OBLIGATIONS TO FIRST NATIONS

The new British Columbia Environmental Assessment Act [SBC 20021, c. 43 , (the "New EA Act"), has removed virtually all of the specific obligations to First Nations which were found in the former Environmental Assessment Act [RSBC 19961 c. 119 (the "Former EA Act").

I. No Purpose

Section 2 (e) of the Former EA Act stated:

The purposes of this Act are:

(e) to provide for participation, in an assessment under this Act, by the public, proponents, first nations, municipalities and regional districts, the government and its agencies, the government of Canada and its agencies and British Columbia's neighbouring jurisdictions.

The New EA Act has no "purposes" provisions.

11. No requirement for First Nation representation

The Former EA Act involved obligatory First Nation representation at the project committee level. Section 9 (2) (d) provided:

(2) The executive director must invite each of the following to nominate a number of individuals not exceeding the number specified for that nominator by the executive director, to represent the nominator on a project committee established under subsection (1):

d) any first nation whose traditional territory includes the site of the project or is in the vicinity of the project;

There is no obligatory First Nation representation under the New EA Act. 111. No project committee input - No decision-making criteria

The absence of mandatory First Nation representation on a body like the project committee also means that under the New EA Act the concerns brought by those representatives are not required to be included in the decision-making process. Under the Former EA Act, the recommendations of the project committee were integral in shaping the standards which a given project was measured against to determine whether or not it would be referred to the ministerial level or whether the minister would approve the issuance of a EA certificate.

The influence of the project committee is evident in the Former EA Act which provided that:

Decision

19 (1) Within the prescribed period after expiry of the period specified under section 16 for receiving comments about an application for a project approval certificate, and after taking into account the application and any comments about it that have been received, the executive director, on the recommendation of the project committee, must

(a) refer the application to the minister and responsible minister for a decision under section 20, or

(b) order that a project report be prepared in accordance with Division 7 and that the project undergo further review under Division 8.

(2) However, the executive director may make a referral under subsection (1) (a) only if he or she, in consultation with the project committee,

(a) ascertains, and in the referral reports to the ministers, that any specified further measures under section 14, relating to the distribution of information about the project, have been carried out,

(b) considers, and in the referral reports to the ministers, that the application identifies and adequately describes the potential effects of the project, including all significant adverse potential effects, and

(c) examines, and in the referral reports to the ministers about, whether or not, in the opinion of the project committee, the application sets out practical means of preventing or reducing to an acceptable level all significant adverse effects of the project.

(3) A referral under subsection (1) (a) must be accompanied by recommendations of the project committee relevant to a decision under section 20 and by the reasons for those recommendations.

(4) An order under subsection (I) (b) must be accompanied by recommendations of the project committee relevant to a review under Divisions 7 and 8 and by reasons for those recommendations.

(5) Notice of a referral or order under this section must be delivered to the proponent.

Ministers' power to approve, reject or require further review

20 Within the prescribed period after the referral, under section 19, of an application for a project approval certificate to the minister and the responsible minister

(a) the ministers must consider the application and any recommendations of the project committee,

(b) the minister with the concurrence of the responsible minister must

(i) issue the project approval certificate to the proponent and attach any conditions to the certificate that the ministers consider necessary,

(ii) refuse to issue the project approval certificate to the proponent, or

(iii) order that a project report be prepared in accordance with Division 7 and that the project undergo further review under Division 8,

(c) the ministers must give written reasons for a decision under paragraph (b), and

(d) the decision and reasons must be delivered to the proponent.

Notably, the New EA Act is silent with respect to the type of decision- making criteria found in s. 19 (2) of the Former EA Act which had required the identification of potential effects of the project, and whether the application had set out means of preventing or reducing significant adverse effects.

IV. No reporting provision on impacts to aboriginal rights

The Former EA Act provided for the inclusion of potential impacts on aboriginal rights where a project report was required:

Matters to be included in project report

22 Without limiting section 2 1, the project report specifications may identify, and may require the project report to contain or be accompanied by, information and analysis that reveal, explain or give particulars of:

g) potential impacts on the exercise of aboriginal rights,

The New EA Act has no such requirement.

V. No required information distribution to, or consultation with, First Nations

The Former EA Act contained provisions requiring obligatory information distribution to, and consultation with, First Nations. The Former EA Act also provided for mechanisms to address inadequate information provision. A number of examples are found in sections 7 (2) (k) and (I), 17,23, and 43:

Application

(2) An application for a project approval certificate must state the name, address and title of the proponent and of the individual having responsibility for answering questions relating to the application and must include or be accompanied by a preliminary overview of the reviewable project, including but not limited to a description of:

(k) information distribution activities and consultation activities undertaken by the proponent with a first nation and a summary of the first nation's response and of the issues identified,

(1) any program of information distribution or consultation proposed by the proponent with a first nation during the next stages of project planning and review,

Circulating material internally and to others

17 Within the prescribed period after each of the steps referred to in section 16 (I), in the review of a reviewable project, the executive director must circulate, to the extent that it is practical and appropriate to do so, a notice of that step, inviting comments about the potential effects of the reviewable project from:

(d) first nations whose traditional territory includes the site of the project or is in the vicinity of the project, and

Plans to be provided

23 Without limiting section 2 1, the project report specifications may identify, and require the project report to contain or be accompanied by, one or more plans, showing in a manner satisfactory to the executive director how the proponent intends to carry out all or any combination of the following:

(b) consultation with first nations whose traditional territory includes the site of the project or is in the vicinity of the project;

Circulating material internally and to others

43 The executive director must circulate, to the extent that it is practical and appropriate to do so, a notice inviting comments, relevant to the assessment

under this Act of the effects of reviewable projects that are in the category or categories specified under section 4 1, from:

. ....

(d) first nations, and

Under the New EA Act, distribution of information and consultation with First Nations is not required, but falls within the discretion of the Executive Director.