A majority of the Federal Court of Appeal concluded that the federal government failed to adequately consult impacted Aboriginal communities when it approved the Northern Gateway Pipeline. It quashed the project approvals and sent the matter back to Governor in Council (in effect, federal Cabinet) to properly consult Aboriginal communities, following which, the Governor in Council will make a decision about whether or not to approve the project.

The Court acknowledged the challenges associated with the approval process for Northern Gateway were immense and that the Crown should not be held to a standard of perfection in discharging its duty to consult. Nevertheless, a majority of the panel found that an important phase of the Aboriginal consultation process “fell well short of the mark”.

The legislative process for approving Northern Gateway involved multiple phases, including an oral hearing from which a report was prepared and presented to the Governor in Council, followed by a determination by Governor in Council about whether to approve the project. There was also a multi-phase consultation process.

In advance of the Governor in Council making its decision, the federal government was supposed to consult Aboriginal communities about concerns that fell outside the hearing panel’s mandate. The Court summarized its reasons for concluding that this phase of the consultation process was inadequate:

“…Canada offered only a brief, hurried and inadequate opportunity … [in] a critical part of Canada’s consultation framework .. to exchange and discuss information and to dialogue. The inadequacies … left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored. Many impacts of the Project—some identified in the Report of the Joint Review Panel, some not—were left undisclosed, undiscussed and unconsidered. It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal peoples. But this did not happen.”[1]

In addition, the Governor in Council failed to provide reasons, as mandated by the legislation, to show it fulfilled the duty to consult.[2]

The Court quashed the Governor in Council’s Orders approving the project and sent the matter back to Cabinet for a fresh determination. Before making its decision, the Governor in Council must fulfill its duty to consult affected Aboriginal communities. After consulting, Cabinet will have to decide whether to approve the project, perhaps with additional conditions to accommodate Aboriginal concerns, or it may decide to reject the project.

Link to full decision:

Gitxaala Nation v. Canada, 2016 FCA 187

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/145744/index.do