Written by Michael Theroux, Marie Buchinski, Laura Gill, Micaela Zila and Justin Duguay
Canada's duty to consult with Indigenous peoples does not guarantee outcomes, the Federal Court of Appeal (FCA or Court) confirmed in Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 [Coldwater].
In Coldwater, four Indigenous communities challenged the decision of the Governor in Council (GIC) to approve the Trans Mountain Pipeline Expansion Project (Project) by judicial review to the FCA. In dismissing the applications, the Court found that the GIC's decision approving the Project was reasonable. It also found that Canada's consultation process "was anything but a rubber-stamping exercise" and concluded that "although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it." The Court concluded there was no basis for interfering with the GIC's second authorization of the Project, which followed an earlier GIC approval that was quashed by the Court in 2018.
On May 19, 2016, the National Energy Board (now the Canada Energy Regulator or "CER") issued a report recommending that the GIC approve the proposed expansion of the Trans Mountain pipeline system. Accepting the NEB's recommendation, the GIC originally approved the Project on November 29, 2016, by Order in Council P.C. 2016-1069.
Several First Nations, two cities, and two not-for-profit organizations challenged the GIC approval. On August 30, 2018, the FCA quashed the Order in Council in Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153, effectively bringing the Project's construction to a halt. The FCA found two fundamental defects in the GIC approval: 1) not having considered the environmental effects of Project-related marine shipping, and 2) a failure by the Crown to fulfil its duty to consult with Indigenous peoples at the last stage of the consultation process.
The Crown re-initiated its consultation process and the GIC approved the Project for a second time on June 18, 2019, in Order in Council P.C. 2019-0820. The Project's construction permits were reinstated in July 2019. Several parties challenged the second GIC approval and on September 4, 2019, the FCA granted leave to six Indigenous groups to apply for judicial review of the Order in Council. The FCA restricted the scope of the applications to the question of whether the Crown's renewed consultation (from August 30, 2018, to June 18, 2019) adequately addressed the shortcomings in the earlier consultation process.
The Applicable Standard of Review is Reasonableness
The Court began by determining the standard of review that applied to its review of the GIC's authorization and the amount of deference that it would afford to the GIC's decision. In applying the revised framework for determining the standard of review recently outlined by the Supreme Court of Canada (SCC) in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the FCA concluded that the applicable standard of review was reasonableness.
The existence and depth of the duty to consult were not in issue because all parties agreed that the duty was one of deep consultation given the circumstances of the case. Due to the fact-intensive nature of the GIC's evaluation of the adequacy of consultation, the FCA found that the GIC's assessment of the adequacy of the consultation that took place during the second consultation process warranted deference. The FCA noted that it was not providing its own view on the adequacy of consultation in considering the applications for judicial review. Instead, the Court framed the question before it as "whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review".
Following Vavilov, the Court considered the context of the GIC's decision as part of its reasonableness review, including the comments from the FCA regarding the further consultation required, the empowering legislation, the law concerning the duty to consult, the relevance of post-approval consultation, and the importance of the matter to those directly impacted by the Project. Based on these factors, the Court concluded that the GIC's decision was "acceptable and defensible in light of both the outcome reached on the facts and the law and the justification offered in support" and that the GIC's "key justifications for deciding as it did are fully supported by evidence in the record".
Consultation Does Not Guarantee Outcomes
As noted above, one of the factors considered by the FCA in its review of the reasonableness of the GIC's decision was the law concerning the duty to consult. Following a detailed review of prior case law and judicial statements regarding reasonable and meaningful consultation, the FCA stated that "[t]he process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome" and that "reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists." The Court concluded that the "evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in a two-way communication, and considering and sometimes agreeing to accommodations, all very much consistent with the concept of reconciliation and the honour of the Crown." The FCA found that "[w]here there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail" and that "a decision can be reasonable even though some affected parties continue to have strong objections to it on its merits."
The SCC previously determined that reasonable and meaningful consultation is "what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake" (Haida Nation). With these principles in mind, the FCA emphasized that the consultation process advances reconciliation regardless of the outcome, and reiterated that consultation does not provide Indigenous peoples with a de facto veto right where their concerns are not resolved to their satisfaction. Relying on the submissions of the parties and the record before it, the FCA determined it was reasonable for the GIC to adopt the view that the flaws identified in the Court's August 30, 2018, ruling had been adequately addressed and that reasonable and meaningful consultation had taken place.