Federal Appeal

Environmental Law

Constitutional issues

General principles

Consultation process resulted in reasonable efforts to inform, consult and accommodate as required by Crown’s fiduciary obligations

Applicant B Nation requested inter alia orders declaring that Canada breached constitutional and common law obligations to consult and accommodate B Nation, that Crown improperly delegated its duty to assess project’s effects on environment and on B Nation’s rights protected under subsection 35(1) of Constitution Act, and that Governor in Council (“GIC”) erred in law in issuing Order in Council (“OIC”) as it did not comply with National Energy Board Act (“NEB Act”) and was otherwise unreasonable for failing to provide reasons or sufficient reasons, and for failing to publish Order in Canada Gazette. B Nation brought application for judicial review of OIC made by GIC, which directed National Energy Board (“NEB”) to issue environmental assessment decision statement concerning 2017 NGTL System Expansion Project in northern Alberta, and to issue Certificate of Public Convenience and Necessity (“Certificate”) authorizing construction and operation of project. Application dismissed. Authorization was subject to Certificate Conditions contained in conditions. NGTL made a number of commitments to protect Caribou and Caribou habitat, that were enforceable under condition. B Nation did not proactively participate in post-NEB consultatio process, did not specifically raise the issue of project’s potential impact on Caribou at either meeting with o Canada’s Major Project Management Office (“MPMO”), and did not avail itself of opportunity to provide comments on draft Crown Consultation and Accommodation Report (“CCAR”). B Nation failed to establish that concerns were not heard and accommodated. When viewed as a whole, consultation process resulted in reasonable efforts to inform, consult and accommodate as required by Crown’s fiduciary obligations. 

Bigstone Cree Nation v. Nova Gas Transmission Ltd. (2018), 2018 CarswellNat 2148, 2018 FCA 89, Johanne Gauthier J.A., D.G. Near J.A., and Yves de Montigny J.A. (F.C.A.).

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