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Bigstone Cree Nation v. Nova Gas Transmission Ltd. (2018 FCA 89)

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Application for Judicial Review – Aboriginal Consultation and Accommodation – Application Dismissed


In this decision, the Federal Court of Appeal (“FCA”) considered an application by Bigstone Cree Nation (“Bigstone”) for judicial review of Order in Council P.C. No. 2016-962 (the “Order”) made by the Governor in Council (the “GIC”) dated October 28, 2016. The Order directed the NEB to issue an environmental assessment decision statement concerning the 2017 Nova Gas Transmission Ltd. (“NGTL”) System Expansion Project in northern Alberta (the “Project”), and to issue the Certificate of Public Convenience and Necessity GC-126 (the “CPCN”) authorizing the construction and operation of the Project.

For the reasons summarized below, the FCA dismissed Bigstone’s application, finding that the Crown had adequately fulfilled its duty to consult and accommodate Bigstone.

NEB Report

Pursuant to section 52(1) of the National Energy Board Act (the “NEB Act”), the NEB issued NEB Report GH-002-2015 regarding NGTL’s application for the Project (the “NEB Report”). The NEB Report recommended that the CPCN be issued, subject to conditions.

Since NGTL’s proposed pipeline sections collectively exceeded 40 kilometres, the Project was a “designated project” and required an environmental assessment (“EA”) under section 2(1) of the Canadian Environmental Assessment Act (“CEAA”).

The FCA noted the following from the NEB Report:

  • The NEB found that the Project was required by the public convenience and necessity under section 52(1) of the NEB Act.

  • The NEB considered the criteria set out in section 52(2) of the NEB Act and, regarding the EA, sections 5 and 19 of the CEAA.

  • The NEB imposed 36 conditions (the “Conditions”) that it considered necessary or desirable in the public interest, should the GIC direct the NEB to issue the CPCN.

  • The NEB found that with the Conditions, the implementation of NGTL’s environmental protection procedures and mitigation measures, the Project was not likely to cause significant adverse environmental effects.

GIC Decision to Issue CPCN

The FCA found that the Crown, through the Government of Canada’s Major Projects Management Office (“MPMO”), consulted Aboriginal groups on the NEB Report to understand the impacts of the Project and how any outstanding impact could be accommodated. In the Crown Consultation and Accommodation Report (“CCAR”), the MPMO described the consultation process undertaken by the Crown with Aboriginal groups. The CCAR explained the Crown’s findings regarding the potential impact of the Crown’s conduct on Aboriginal rights protected under section 35(1) of the Constitution Act, 1982 (“Section 35 Rights”). The CCAR also outlined accommodation measures proposed to address the potential impact on Aboriginal rights. It concluded that the Conditions proposed by the NEB were responsive to, and appropriately accommodated, the concerns raised by Aboriginal groups, including Bigstone.

On October 28, 2016, the GIC issued the Order directing, the NEB to issue the CPCN to NGTL for the Project, subject to the Conditions. It also decided, pursuant to section 31(1)(a)(i) of the CEAA, that the Project was not likely to cause significant adverse environmental effects.

That GIC decision was the subject of this judicial review application.

Alleged Grounds of Review

Bigstone requested orders declaring that:

(a)     Canada breached its constitutional and common law obligations to consult and accommodate Bigstone;

(b)     the Crown improperly delegated its duty to assess the Project’s effects on the environment and on Bigstone’s rights protected under subsection 35(1) of the Constitution Act, 1982 (“Section 35 Rights”);

(c)     the GIC erred in law in issuing the Order as it:

(i)      did not comply with the NEB Act; and

(ii)     was otherwise unreasonable for failing to provide reasons or sufficient reasons, and for failing to publish the Order in the Canada Gazette.

Bigstone submitted that, based on the above alleged grounds, the Order was unenforceable, invalid and unlawful and/or without legal effect. Bigstone requested that the FCA quash the Order and the CPCN.

Standard of Review

Determinations pertaining to the existence, content and scope of the duty to consult, as well as to the seriousness of the Aboriginal or treaty claims and the impact of the infringement, are reviewed on a standard of correctness to the extent that they can be isolated from issues of fact.

The FCA explained, however, that adequacy of consultation and accommodation is reviewed on a standard of reasonableness, as it is a mixed question of fact and law. A reviewing court will focus on the process itself, rather than the substantive outcome of the consultation and accommodation. “Perfect satisfaction is not required”; the duty to consult will be satisfied if the government made reasonable efforts to inform and consult (citing Haida).

The Existence, Content and Scope of the Duty to Consult

The FCA found that the Crown had a duty to consult with Bigstone and other indigenous groups impacted by the Project.

The FCA explained that the Crown’s duty is grounded in the honour of the Crown. The duty arises when the Crown has actual or constructive knowledge of the potential existence of Section 35 Rights and contemplates conduct that might adversely affect those rights (Haida at para 35; Gitxaala Nation v. Canada, 2016 FCA 187 (“Gitxaala”) at paras 171-172). The GIC, when considering a pipeline project that may impact Aboriginal rights, must ensure that the duty to consult has been fulfilled before it directs the NEB to issue a CPCN.

The Crown acknowledged that it had a duty to consult Bigstone. The Crown assessed that the potential impact of the Project on the rights and interests of Bigstone would be “moderate to high.” On that basis, the Crown assessed the extent of its duty as being on the “high end of the consultation spectrum.”

The FCA explained that deep consultation required the opportunity for Bigstone to make submissions, formal participation in the decision-making process, and the provision of written reasons to show that Aboriginal concerns were considered and how they were factored into the decision (citing Gitxaala at para 174).

Sufficiency and Adequacy of Consultation and Accommodation

The FCA went on to assess arguments going to the sufficiency and adequacy of the consultation, on a reasonableness standard.

 Alleged Lack of Funding

Bigstone argued that lack of funding prevented meaningful consultations. The FCA found that this argument was without merit. The FCA noted that:

  • Bigstone was awarded the maximum amount of $8,500 in funding to participate in post-hearing consultations; and

  • this was on top of the $27,000 provided to Bigstone by the NEB in participant funding and of the approximately $225,000 provided by NGTL to fund Bigstone’s engagement in the Project.

The FCA confirmed that the Crown is under no obligation to provide funding. At best, it would be but one factor to determine if the consultations were meaningful. In this case, the FCA found that Bigstone failed to show how purported lack of funding impacted its participation.

GIC Reliance on the NEB Process

The FCA held that the GIC was entitled to rely on the NEB process to fulfill, at least in part, its duty to consult.

The Crown can delegate the procedural aspects of the consultation to the NEB and rely on the regulatory process to either partially or completely fulfil this duty. However, the Crown must take further measures to meet its duty where the regulatory process does not achieve adequate consultation or accommodation (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (“Clyde River”) at para 22).

In this case, the FCA found:

  • Canada notified Bigstone early in the process that it intended to rely on the NEB process in partial fulfillment of its duty to consult.

  • Canada made it clear that it would rely, to the extent possible, on the NEB process to discharge any duty to consult for the Project.

  • It was reasonable for the Crown to rely on that process to consult with Bigstone and other affected Aboriginal groups.

  • The NEB process was structured to encourage significant and meaningful Aboriginal consultation. Bigstone was provided with ample information about the Project, was provided with participant funding to assist in its involvement in the Crown consultations, and was substantially involved in the hearing process.

The FCA concluded that the NEB seriously considered Bigstone’s rights and concerns, as was also apparent from the numerous accommodation measures imposed on NGTL through the Conditions of the approval.

 An “Exchange of Information” Rather Than Meaningful Consultation

Bigstone argued that the consultations that took place after the release of the NEB Report were not meaningful because the meetings were an exchange of information only, did not respond to Bigstone’s concerns, and did not provide a platform to engage in real discussions on unresolved issues.

The FCA found that Bigstone had not provided any particulars to support those allegations and that the record did not bear them out.

Adequacy of Reasons

Deep consultation requires written explanations capable of showing that the Aboriginal group’s concerns were duly considered and sufficient to reveal the impact those concerns had on the GIC’s decision (citing Haida at para 44; Gitxaala at para 314).

In this case, the FCA found that this requirement was clearly met. The GIC was entitled to rely on the NEB Report and the CCAR as an adequate basis for its decision.

The FCA further found that the GIC gave adequate reasons, in light of the NEB Report and the extensive reasons of the Crown (through the MPMO), on which the GIC expressly relied in the Order. The FCA confirmed that consultation could not translate into a duty to agree, as this would amount to a veto power.

Crown Accommodation of Bigstone’s Concerns

The FCA found that Canada had a duty not only to consult but also to accommodate in order to substantially address Bigstone’s legitimate concerns. Responsiveness is a key requirement of both consultation and accommodation (citing Taku River at para 25). In some cases, meaningful consultation may require the Crown to change its proposed course of action to address Aboriginal concerns and avoid irreparable harm or minimize the effects of infringement.

The FCA noted that Bigstone’s main concerns appeared to be with the Project’s potential impact on Caribou and Caribou habitat. Bigstone expressed concerns with NGTL’s preliminary Caribou Habitat Restoration and Offset Measures Plan for the Project, and the cumulative effects on Caribou.

The FCA found that:

(a)     the NEB Report addressed these issues at length and came up with seven Conditions (Conditions # 6, 7, 18, 31-34) in regard to habitat restoration, offset measures, monitoring, reporting and cumulative impacts, in addition to NGTL’s own commitments to implementing best practice mitigation measures; and

(b)     the Crown also specifically endorsed in the CCAR the seven Conditions proposed by the NEB to mitigate the direct impact on Caribou and Caribou habitat and directed the NEB to issue the CPCN subject to those Conditions.

Conclusion

The FCA dismissed the judicial review application with costs.

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