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Tseil-Wautuh Nation v National Energy Board (2016 FCA 219)

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Trans Mountain Pipeline – Duty to Consult – NEBA – CEAA 2012 – Environmental Assessment

The Tsleil-Waututh Nation (“TWN”) appealed from three interlocutory decisions of the NEB in the context of the NEB’s review of Trans Mountain Pipeline ULC (“TM”)’s application for the construction of a pipeline project (the “Project”).

The proposed Project consists of an extension to the existing TM pipeline system, including 987km of new buried pipelines, reactivation of 193km of existing pipeline, and construction of associated facilities.

The Decisions were described by the Federal Court of Appeal (“FCA”) as:

1. A determination that TM’s application was complete (the “Completeness Decision”);

2. A confirmation that the Project is a “designated project” for the purposes of requiring an environmental assessment pursuant to the Canadian Environment Assessment Act, 2012 (CEAA 2012) (the “Designation Decision”); and

3. An order detailing process steps, including a public hearing (the “Hearing Order”), (collectively, the “Decisions”).

The TWN raised the following four issues on appeal:

1. Does the NEB, when acting as a responsible authority under the CEAA 2012, have the authority and obligation to discharge the Crown’s duty to consult with Aboriginal groups?

2. Did the NEB breach its obligation to consult and collaborate with TWN as a “jurisdiction” within the meaning of CEAA 2012, section 18?

3. Did the NEB breach its duty of fairness to the TWN by failing to obtain its consent in respect of all the issues raised in the Decisions?

4. Did the NEB err in law by failing to include marine shipping activities in the Designation Decision?

The FCA dismissed TWN’s appeal without prejudice to the TWN’s right to raise the same issues in any proceeding TWN deems necessary to contest the ultimate decision of the Governor in Council (“GIC”).

Duty of Fairness

The TWN initiated the appeal proceedings pursuant to the statutory right of appeal contained in the National Energy Board Act (“NEBA”) section 22(1). The FCA noted that while certain interlocutory decisions of the NEB are final and can be properly appealed under NEBA section 22(1), the Decisions were not final and therefore appeal to the FCA was premature.

With respect to the Completeness Decision, the FCA noted that the NEB’s determination that an application is complete does not preclude participants from making submissions regarding what they consider to be deficiencies in an application. Rather, a finding of completeness by the NEB is an initial threshold question and an application will be considered “complete” if there is sufficient detail to engage public debate through the hearing process.

The FCA noted that the Completeness Decision was open to variation by way of a motion at any time before the commencement of final argument. TWN did not follow the process set by the NEB to raise its concerns and thus did not avail itself of its right to be heard.

With respect to the Designation Decision, the FCA noted that, similarly to the Completeness Decision, the Designation Decision was open to variation upon interveners’ motions. The FCA noted that TWN did not present its concerns to the NEB prior to its appeal to the FCA.

The FCA also noted that in the list of issues made public in July 2013 (after the issuance of the Designation Decision), the NEB included on the list the impact of increased maritime shipping. The NEB also included the cumulative effects of increased shipping as a consideration for the environmental assessment under CEAA 2012.

The FCA held that TWN failed to establish any breach of duty of fairness with respect to the Hearing Order. Specifically, the TWN failed to explain why the process chosen by the NEB (allowing all interveners to make requests by motion) was not sufficient to meet the NEB’s duty to act fairly in a massive proceeding involving over 400 interveners.

The FCA noted that had TWN felt it was prejudiced by any part of the Hearing Order it was open to TWN to file a motion with the NEB raising such concerns. The TWN never filed such a motion.

Duty to Consult

The FCA noted that TWN had not raised any Constitutional issues regarding the adequacy of consultation to the NEB before commencing the appeal. The FCA reiterated previous findings of the FCA emphasizing the importance of not bypassing the administrative process when dealing with Constitutional issues.

TWN submitted that it needed to raise a potential breach of the Crown’s duty to consult at the earliest possible opportunity in order to obtain an effective remedy.

The FCA rejected this argument, and noted that if anything, the route chosen by TWN to address its consultation concerns caused significant delay and the TWN did not conduct itself as if a decision in the FCA proceeding was urgent.

The appeal was dismissed without prejudice to the TWN raising issues related consultation and accommodation once the GIC makes its decision on the basis of the NEB’s recommendations.

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