On February 4, 2020, the Federal Court of Appeal rendered its decision in Coldwater et al. v. Canada (Attorney General) et al., 2020 FCA 34, dismissing the challenges of four First Nation applicants to Federal Cabinet’s approval of the Trans Mountain Pipeline Expansion Project.
- 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’s recommendation and issued an Order in Council approving the project.
- August 30, 2018 – The Federal Court of Appeal set aside Canada’s approval of the pipeline, and sent the matter back to the Federal Cabinet for reconsideration. (see our blog post for this decision)
- November 19, 2018 – The Federal Government reinitiated consultations with potentially affected Indigenous groups.
- June 18, 2019 – Governor in Council (Federal Cabinet) issued a second Order in Council approving the project.
- September 4, 2019 – Four Applicants: Coldwater Indian Band; Squamish Nation; Tsleil-Waututh Nation; and the Ts’elxwéyeqw Tribe, a collective of seven Stó:lō villages, challenged the second Order in Council approving the project.
The Federal Court of Appeal dismissed the challenges to the federal approval of the pipeline.
The Court said it was reasonable for the Governor in Council to measure the adequacy of its second consultation process against the shortcomings previously identified by the Federal Court of Appeal in its 2018 decision. The 2018 Federal Court of Appeal decision envisaged a focused and narrow consultation process.
The Court expressed the importance of reconciliation and noted that the duty to consult and accommodate is aimed at helping address the historical wrongs where decisions affecting Indigenous peoples have been made without regard for their interest, dignity or membership in Canadian society. The Court confirmed that the Crown must discharge its duty to consult in a “meaningful” and “reasonable” way. The Court reviewed the indicia of “reasonable” and “meaningful” consultation:
- Consultation is more than providing a forum for Indigenous peoples to “blow off steam”;
- The Crown must be open-minded about accommodation and exercise good faith;
- Two-way dialogue must be more than simply exchanging and discussing information;
- Dialogue should lead to a demonstrably serious consideration of accommodation;
- The Crown must grapple with the concerns of the Indigenous rights holders to explore possible accommodation of those concerns;
- In cases like this, where deep consultation is required, the Court noted the following additional non-binding indicia of meaningful consultation canvassed in past cases:
- the opportunity to make submissions;
- formal participation in the decision-making process;
- provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision; and
- dispute resolution procedures like mediation or administrative regimes with impartial decision-makers.
With respect to accommodation, the case noted that a “process of meaningful consultation can result in various forms of accommodation. But the failure to accommodate in any particular way, including by way of abandoning the Project, does not necessarily mean that there has been no meaningful consultation.” As phrased by the Court, “[i]nsisting that the only acceptable accommodation is selecting an alternative to the Project amounts to seeking a veto over the Project, which forms no part of the duty to consult.” The Court further noted that “imposing too strict a standard of “perfection”, “reasonableness” or “meaningfulness” in assessing whether the duty to consult has been adequately met would de facto give impacted Indigenous rights holders a veto.
With these considerations in mind, the Court concluded that Cabinet’s decision was reasonable. The Federal Cabinet demonstrated that it understood the legal content of the duty to consult and the shortcomings in its earlier consultation process and addressed those flaws with further consultation and accommodation measures. The Court also stressed the importance of ongoing consultation that would take place during the pre-construction, construction and operating phases of the Project.
Notwithstanding Canada’s expression at the outset of the process that it desired to secure the free, prior, and informed consent of affected Indigenous rights holders, the Court said Canada was under no obligation to obtain consent prior to approving the Project.
Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation and the Ts’elxwéyeqw Tribe have sixty days to file an application for leave to appeal with the Supreme Court of Canada.