NATIVE ISSUES - First Nations consultation in proceedings before the British Columbial Utilities commission - September 2006

by Matthew T. Ghikas of Fasken Martineau

The construction of a significant capital project by a public utility,2 such as a transmission line, generating facility, or pipeline, will generally require the proponent to obtain a Certificate of Public Convenience and Necessity (“CPCN”) from the British Columbia Utilities Commission (the “Commission”) (in the case of a project wholly within British Columbia) or the National Energy Board (“NEB” or the “Board”) (in the case of a project that, for example, has a multi-jurisdictional dimension). First Nations affected by these projects, like any other affected party, have the right to intervene in CPCN proceedings. Frequently proponents of these projects must also obtain approvals through environmental assessment processes under either the British Columbia Environmental Assessment Act or the Canadian Environmental Assessment Act. More Info...

NATIVE ISSUES - Court orders crown to consult First Nation before removing privately owned forest land from tree farm licence - Winter 2006

by Stephanie Lysyk (Vancouver Office)of Borden Ladner Gervais

In Hupacasath First Nation v. British Columbia (Minister of Forests), released in December 2005, the British Columbia Supreme Court held that the Provincial Crown owed, and failed to meet, a duty to consult and to accommodate the Hupacasath First Nation when removing 70,000 hectares of privately held forest land from Tree Farm Licence 44 (“TFL 44”). Based on this decision, the Crown can now be found to have a duty to consult and accommodate First Nations with respect to activities on privately owned lands. This finding may have far reaching implications and will likely be of concern to private land owners. More Info...