JFK Court Report: Recent Cases from British Columbia

Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority, 2015 BCSC 16

Da’naxda’xw/Awaetlala First Nation (“DAFN”) and Kleana Power Corporation brought judicial review proceedings against the Minister of Energy, Mines and Resources and BC Hydro. Their case was brought in relation to a proposed run of river hydro project proposed on the Klinaklini River by Kleana, within the traditional territory of DAFN.

Kleana wanted to submit a proposal in the 2008 “Clean Power Call” issued by BC Hydro in order to obtain an energy purchase agreement. DAFN considered the project an economic opportunity consistent with their interests. But the proposed boundary of a conservancy was within the DAFN traditional territory, which created a barrier to the project. The Petitioners said that they received an assurance from the Minister that if, due to a delay in amending the boundary, Kleana lost the opportunity to participate in the Clean Power Call, the Minister would direct BC Hydro to enter into negotiations with Kleana for an energy purchase agreement. They said that, in reliance on that assurance, they spent resources pursuing the boundary amendment, including judicial review proceedings in 2010, seeking judicial review of the then Minister’s refusal to recommend an amendment to the boundary.

The earlier proceedings were successful, and the court found in 2011 that the Environment Minister had a legal duty to consult with DAFN concerning their request for amendment of the boundary, with a view to considering a reasonable accommodation, and that he had failed to fulfill his constitutional duty to adequately consult with DAFN.

The boundary was eventually amended, but the Petitioners argue that the Minister refused to honour the assurance given in 2008 and now sought an order requiring the Energy Minister to direct BC Hydro to enter into good faith negotiations with Kleana for the acquisition of power.

The Court in the present case found that the effects arising from the previous breaches of the duty to consult had not been resolved – including the opportunity to negotiate an energy purchase agreement following a complete assessment of the project – and required further remedy. The Court declared that the Province has a duty to consult with DAFN with a view to considering reasonable accommodation that had not previously been considered.

DAFN was not successful in its further argument that a commitment made by the Minister to assist DAFN gave rise to a public law estoppel. Nor did the Court agree that the Minister’s conduct had resulted in a legitimate expectation by DAFN that there would be a specific process undertaken by the Minister that had not been fulfilled.


Weaver v. Corcoran, 2015 BCSC 165

Provincial Green Party MLA Andrew Weaver was successful in a defamation suit raised against the National Post and columnists/journalists and the publisher of the Post. This suit was brought in relation to articles Dr. Weaver argued contained defamatory inferences that Dr. Weaver had attempted to divert public attention from a scandal in the climate change science community by fabricating stories, suggesting that he is untrustworthy, unscientific and incompetent, and that he distorts and conceals scientific data to promote a public agenda and receive funding.

The court concluded the relevant statements were defamatory in that they attribute misconduct, incompetence and unethical character to Dr. Weaver. It said: “It is one thing to debate the merits of a theory. It is quite another to impugn a person’s character with innuendos concerning honesty, ethics and competence in the course of that debate.” The defamatory statements were found not to be fair comment and the court held that the factual foundation for the relevant articles was distorted or false. Dr. Weaver was awarded $50,000 in damages.


Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89

After a trial, the British Columbia Supreme Court had concluded that the Province should be liable for damages of $1,750,000 to Moulton Contracting, which had suffered losses when prevented from logging under timber sale licences due to a blockade on the timber road by members of the Fort Nelson First Nation. The trial judge had concluded that the Province was responsible to inform Moulton of threats to stop logging, and to properly represent whether it had discharged its duty to consult with First Nations.

The Court of Appeal allowed BC’s appeal, holding that the trial judge’s conclusion that it was an implied term of the timber sale licences that the Province was not aware of any First Nation expressing dissatisfaction with the consultation undertaken by the Province was incorrect. The Court of Appeal also held that the law did not support the trial judge’s conclusion that the Province should be liable for negligent misrepresentation in the circumstances.