Nlaka'pamux Nation Tribal Council v. British Columbia (Environment Assessment Office), 2011 BCCA 78.

A proposed landfill extension would occupy land over which the Nlaka’pamux First Nation claimed Aboriginal rights and title. The proposal was subject to an assessment under the Environmental Assessment Act. Section 11 required the Project Assessment Director to determine the scope and the procedures by which the assessment would occur. The original s. 11 order did not provide for any consultation with the Nlaka’pamux Nation Tribal Council (NNTC). The NNTC objected. The amended order did not specifically mention the NNTC, but provided for discretionary consultation with Aboriginal entities. The NNTC claimed that it had a right to be consulted before the scope of the assessment was established, and sought judicial review. The NNTC requested a declaration that the Crown, through the Environmental Assessment Office, failed to comply with its duty of consultation and also sought to quash orders and approvals granted in the assessment process. The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1275, dismissed the petition, finding that the Environmental Assessment Office had acted reasonably in undertaking consultations with the NNTC. The NNTC appealed. The British Columbia Court of Appeal allowed the appeal to the extent of declaring that the Project Assessment Director’s amended order failed to adequately establish the necessary processes of consultation with the NNTC, and was, in that respect, defective. The court did not accede to the other relief claimed by the NNTC. In particular, the court refrained from quashing the amended order, as the court found that it was “no longer in play”.