There is something in the range of $100 billion of capital investment proposed for major projects in B.C., including liquefied natural gas, mining and electricity generation projects.
These projects offer tremendous opportunity for jobs, community development and government revenues.
However, they can also face challenges and opposition, and many often wonder whether they may be stalled or halted through litigation.
While there is no doubt that courts have intervened where laws are not followed or where consultation with aboriginal groups is not adequate, these risks and threats should not be overstated.
For example, a review of all litigation involving the British Columbia Environmental Assessment Office shows that there has not been a single case where a court has ultimately overturned a decision of that office.
Further, courts have made clear that the environmental assessment process is well suited to meeting the Crown's duty to consult aboriginal peoples.
In a recent case where the Halalt First Nation challenged consultation undertaken by the BC Environmental Assessment Office, the BC Court of Appeal said this:
"In Rio Tinto, the [Supreme] Court made it clear that the duty to consult may be exercised in the context of the work of an administrative tribunal. … In my view, the fact that the information may have been provided initially to the direct participants in the environmental assessment process does not undermine the consultation that took place."
Similarly, courts have recently been quite supportive of the federal environmental assessment process. In 2011, the Federal Court rejected numerous challenges to a federal environmental assessment decision, brought by the Sierra Club of Canada and another applicant. In doing so the court held that environmental assessment officials must be given considerable latitude to administer their process and make decisions.
In a 2012 decision, the Alberta Court of Appeal declined to intervene on behalf of Métis representatives who had objected to how aboriginal consultation was being considered in the course of a joint review panel.
Likewise, in May, the Supreme Court of Canada held that an attempt by aboriginal persons to justify a blockade on the basis of asserted aboriginal rights was unfounded and an "abuse of process."
It is also often suggested that even if legal challenges ultimately fail, projects will be delayed for years if litigation is initiated. In fact, the initiation of a judicial review does not automatically suspend approvals while the litigation is ongoing.
To the contrary, the authorizations remain valid and can be acted on while litigation proceeds, unless a court makes an express order otherwise.
Such orders are not easy to obtain, as they require the court to consider issues of "irreparable harm" and the "balance of convenience." In practice, such orders are relatively rare (though they can occur).
This is not to suggest that government and proponents should take a relaxed approach to these issues or that any party should be indifferent to litigation and whatever degree of uncertainty it creates. Careful attention, good faith and concerted effort are always required in environmental assessment and permitting, and there are many reasons to avoid litigation wherever possible.
Further, there may be good reasons for proponents to do more than the law requires in order to establish constructive and mutually beneficial relationships with local communities, First Nations and the general public.
Yet at the same time, all such discussions and decisions should be grounded in the simple understanding that if governments and proponents do a solid job in environmental assessment and permitting, there is increasing reason to believe that the government and not the courts will decide if and when such projects should proceed.
