The Federal Court of Appeal released its along awaited decision (Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153) on the Trans Mountain Pipeline Expansion project. The Court set aside Canada’s approval of the pipeline, and sent the matter back to the federal Cabinet for “prompt redetermination”.
- May 19, 2016 – the National Energy Board (“NEB”) issued its hearing report recommending that the pipeline be approved based on Canada’s public interest.
- November 29, 2016 – Governor in Council (federal Cabinet) accepted the NEB recommendation and issued an Order in Council approving the project.
- Subsequently, a number of applications for judicial review were filed by First Nations, municipalities and environmental groups. The Tsleil-Waututh Nation case is the outcome of these legal challenges.
The decision: The Court set aside the Cabinet’s decision, and remitted the matter back to them to for prompt redetermination.
The Court held:
1. The NEB was wrong to exclude marine tanker traffic from its review: The Court said the NEB unjustifiably restricted the scope of the Project under review to exclude Project-related marine tanker traffic. The exclusion of marine shipping from the scope of the Project led to “successive, unacceptable deficiencies” in the NEB’s report and recommendations. This included a failure to properly apply the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale. One significant adverse effect of concern to some costal First Nation applicants was the effect of increased shipping traffic on the endangered Southern resident killer whales and associated traditional Aboriginal uses associated with this whale.
As a result of this error, Cabinet could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.
2. The duty to consult Indigenous communities was not adequately discharged: The Court noted that meaningful consultation is not simply a process of exchanging information. “Meaningful consultation ‘entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback.’ Where deep consultation is required, a dialogue must ensue that leads to a demonstrably serious consideration of accommodation.… “.
While the consultation framework selected by Canada was reasonable and sufficient it was not properly executed. At the last stage of the consultation process prior to Cabinet’s decision (Phase III), Canada’s efforts fell short. At Phase III, Canada failed to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. For the most part, Canada’s representatives limited their mandate to listening and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the Court was not convinced that there was sufficient two-way dialogue.
Canada’s ability to consult and dialogue on these issues was constrained by two further limits: first, Canada’s unwillingness to depart from the NEB’s findings and conditions so as to genuinely understand the concerns of the Indigenous applicants and then consider and respond to those concerns in a genuine and adequate way; second, Canada’s erroneous view that it was unable to impose additional conditions on Trans Mountain.
The Court said that Canada was entitled to rely on the NEB’s process to fulfill, in whole or in part, the Crown’s duty to consult – but reliance on the NEB process did not allow Canada to rely unwaveringly on the NEB’s findings and recommended conditions. When real concerns were raised by First Nations about the hearing process or the NEB decision, Canada was required to dialogue meaningfully about those concerns, and it failed in this regard.
In sending the matter back to Cabinet to redetermine the Court indicated that Cabinet must refer the NEB’s recommendations and its terms and conditions back to the Board, for reconsideration. Further, Canada must re-do its Phase III consultation. Only after that consultation is completed and any accommodation made can the project be put before Cabinet for approval. The Court indicated that this may result in a “short delay”.
Canada, should it decide to appeal this decision, has sixty days to file an application for leave to appeal with the Supreme Court of Canada.