Indigenous Consultation
This case involved applications for judicial review of the second approval by the Governor in Council (“GIC”) of the Trans Mountain Pipeline Project (the “Project”) following a reconsideration hearing before the National Energy Board (“NEB”). Four applicants sought to challenge the second approval on environmental grounds and on the alleged continued failure of the duty to consult. The Federal Court of Appeal (“FCA”) dismissed the applications.
Background
In November 2016, the GIC approved the Project. Several applicants successfully challenged the approval in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (“TWN 2018”), with the Federal Court of Appeal finding two fundamental defects: the impermissibly under-inclusive nature of the environmental assessment that formed part of the basis for the approval and the Crown’s failure to fulfil its duty to consult with Indigenous peoples. The FCA remitted the matter back to the GIC in order for these flaws to be addressed and for re-decision.
A reconsideration hearing was ordered to take place before the NEB. The GIC again approved the Project. Several parties sought to challenge the second approval. Six were granted leave, and two of those discontinued their applications, leaving four applicants before the FCA: Coldwater Indian Band (“Coldwater”), Squamish Nation (“Squamish”), Tsleil-Waututh Nation (“Tsleil-Waututh”) and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose (Ts’elxwéyeqw). Applications for judicial review were restricted to duty to consult issues.
Opening Observations
The FCA began by noting that the applicants had argued their case very much as if this was the first time that their case was adjudicated, when in fact, the task of the Court, in this case, was much more limited.
The FCA went on to note TWN 2018 examined the consultation process that preceded the first Project approval in exhaustive detail, finding many aspects of that process to be adequate. The FCA in TWN 2018 found that the execution of one part of the consultation, Phase III, was deficient.
TWN 2018 did not require that the consultation process begin anew. Instead, it required focused consultation to address the shortcomings it identified. While the flaws were significant, they were restricted to precise issues within the overall consultation process.
Standard of Review
The FCA noted that the Supreme Court case in Canada (Minister of Citizenship and Immigration) v. Vavilov (“Vavilov”) did not materially change the standard of review in this litigation. Given that this case was a statutory judicial review and not a statutory appeal, the presumptive standard of reasonableness applied.
The FCA further noted that in Vavilov, the Supreme Court held that questions as to the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 require a final and determinate answer from the courts and, thus, must be reviewed for correctness. However, all parties agreed on the scope of the duty to consult under section 35, and that was, therefore, not an issue for the Court.
Was the GIC’s Decision Reasonable?
In the FCA’s view, the GIC’s decision was reasonable. It was acceptable and defensible in light of both the outcome reached on the facts and the law and the justification offered in support.
In this case, the GIC’s key justifications for deciding as it did were fully supported by evidence in the record. The evidentiary record showed a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations, all very much consistent with the concepts of reconciliation and the honour of the Crown.
Notwithstanding requests from the FCA to focus on the GIC’s decision and to address the standard of review, the applicants focused on the merits of the decision. In light of the Court’s analysis and given the applicants’ failure to focus on a review of the decision of the GIC in accordance with the governing standard of review, the FCA concluded that the decision of the GIC was reasonable.
The FCA then responded to the applicants’ detailed submissions. It wrote that such a response was not required by the analysis of reasonableness it was to follow under Vavilov. However, the shortcomings on which the applicants were asked to comment pursuant to the Leave Order were detailed and specific in nature and, to that extent, may have led the applicants to adopt a more merit-based approach than that sanctioned in Vavilov. The FCA also noted that it was important to defuse any suggestion that the FCA did not consider the applicants’ submissions.
Response to the Applicants’ Specific Submissions
The FCA found that even if it was reviewing the GIC’s decision on the basis of correctness, it would still not be persuaded that interference with the GIC’s decision was warranted.
It noted that the applicants’ submissions were essentially that the Project could not be approved until all of their concerns are resolved. The FCA noted that if it were to accept those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto veto right over it. The FCA then went through a detailed analysis of each applicant’s concerns.
Coldwater
The focus of Coldwater’s concerns was on the potential impact of the Project on the aquifer from which it draws its drinking water supply.
The FCA did a detailed review of the issues raised in TWN 2018 related to the aquifer and found that these issues had been resolved.
The FCA also noted that Coldwater’s “strong preference” for a West Alternative that imposed no risk to its aquifer or drinking supply began to shift during the consultation that occurred after TWN 2018. When it became apparent that the West Alternative could provide a realistic solution to its aquifer concerns, Coldwater began to take the position that no route was safe enough. The FCA noted that this was not an issue that had ever been previously raised by Coldwater, and cited authority suggesting that Coldwater’s position essentially amounted to seeking a veto.
Squamish
Squamish’s primary concerns with the Project were the risk of spills of the diluted bitumen that would be carried by the pipeline and the consequences of a spill for Squamish’s rights and interests.
TWN 2018 identified three specific shortcomings in the earlier consultation between Canada and Squamish on these subjects. The first was that there was no meaningful response from Canada to Squamish’s concern that too little was known about how diluted bitumen would behave if spilled to permit approval of the Project. The second was that there was nothing in Canada’s response to show that Squamish’s concern about diluted bitumen was given real consideration or weight. The third was that there was nothing to show that any consideration was given to any meaningful and tangible accommodation measures.
The FCA found that these shortcomings were addressed. It found that the record demonstrated that in the renewed consultation process, Canada meaningfully responded to Squamish’s concerns through, among other things, discussion, the exchange of expert scientific opinion, and the provision of relevant information and documentation. Canada also proposed accommodation measures that could contribute to mitigating the impacts with which Squamish was concerned.
The FCA found that the proposed accommodation measures were meaningful and tangible; that Canada did not withhold necessary information; and that allegations of bias, which were rejected in the leave decision, were not properly before the Court.
Tsleil-Waututh
TWN 2018 concluded that the Crown’s initial consultation with Tsleil-Waututh was inadequate. Tsleil-Waututh’s main concern was marine shipping. Canada’s response to this concern was characterized as “generic and vague”, and as devoid of “concrete measures”. More specifically, TWN 2018 identified as shortcomings Canada’s failure to consult with Tsleil-Waututh or accommodate its concerns respecting: (1) the NEB’s exclusion of Project-related marine shipping from the Project definition; (2) the inadequacy of the conditions imposed by the NEB to address Tsleil-Waututh’s concerns about marine shipping; (3) the likelihood of oil spills in Burrard Inlet; (4) spill response capabilities; (5) the ability to recover spilled oil; and (6) marine shipping impacts on Tsleil-Waututh’s title, rights, and interests.
The FCA examined Tsleil-Waututh’s contentions that: (1) Canada made “consultative errors” in relation to Tsleil-Waututh’s concerns about Project-related marine shipping impacts; (2) Canada took an incorrect and unreasonable approach to accommodation; (3) Canada withheld necessary information until the end of the consultation process; and (4) Canada’s mandate was unreasonably constrained.
The FCA found that the record did not support Tsleil-Waututh’s characterization of the re-initiated consultation process. Rather, the record demonstrated that Canada adequately consulted Tsleil-Waututh in relation to its concerns about Project-related marine shipping impacts and reasonably approached accommodation. There was also no evidence to suggest that Canada withheld necessary information from Tsleil- Waututh. Nor did the record support the contention that Canada’s mandate was inappropriately constrained. While the record did show that Tsleil-Waututh’s conduct during the re-initiated consultation process hindered Canada’s consultation efforts, Canada nonetheless succeeded in addressing the shortcomings identified in TWN 2018. Therefore, Tsleil-Waututh failed to show that the GIC’s assessment of the consultation with and accommodation of Tsleil-Waututh was unreasonable.
Ts’elxwéyeqw
In TWN 2018, six shortcomings were pointed to in support of the conclusion that Canada’s initial consultations with the Stó:lō (including Ts’elxwéyeqw) were not meaningful. First, Canada failed to give due consideration to the 89 recommendations contained in the Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project (“ICA”), a detailed technical submission prepared by the Stó:lō concerning potential impacts of the Project. Second, Canada failed to address the Stó:lō’s position that Lightning Rock is a “no go” area. Third, Canada failed to ensure that the Stó:lō cultural sites were incorporated into the Project’s alignment sheets (documents showing the exact route proposed for the pipeline). Fourth, Canada failed to accommodate the request for Indigenous groups to select Indigenous monitors. Fifth, Canada failed to guarantee that Trans Mountain would be held accountable for its commitments. Finally, Canada did not succeed in explaining how the Stó:lō’s constitutionally protected right to fish was accounted for during the consultation process.
In this application, the Ts’elxwéyeqw advanced four contentions as follows: (1) Canada failed to adequately engage with the ICA, and the 89 recommendations; (2) Canada’s accommodation measures are generic, conceptual, not specific, and rely heavily on future commitments; (3) Canada failed to re-initiate consultations in a timely manner and then truncated their execution; and (4) Canada failed to consider the infringement of its established fishing right.
The FCA noted that a review of the arguments made in support of these contentions showed that Ts’elxwéyeqw lost sight of the fact that this was a judicial review application. The arguments essentially invited the FCA to consider the overall conclusion reached by the GIC to the effect that the duty to consult was adequately met, weigh the evidence that bears on this question, and come to a different conclusion. Notably, Ts’elxwéyeqw made no mention of the reasons given in support of the issuance of the Order in Council or the Explanatory Note that accompanied it.
The FCA found that after considering the reasons given by the GIC in support of its conclusion and the record, insofar as it pertained to Ts’elxwéyeqw’s four contentions, it became clear that the four contentions were without merit. The FCA further noted that when reviewing the record to test Ts’elxwéyeqw’s four contentions against Canada’s responses, Canada’s account of the consultation process was to be preferred.
With regard to the last alleged legal flaw regarding Canada’s failure to make any mention of the Stó:lō’s constitutionally protected right to fish, and show how this constitutionally protected right would be taken into account, the FCA found that the record showed unequivocally that during the renewed consultation process, Canada acknowledged Ts’elxwéyeqw’s constitutionally protected Aboriginal right to fish and took this right into account in assessing Project impacts.
Disposition
The applications for judicial review were dismissed with costs to the respondents.
