Canada failed to engage, dialogue meaningfully and grapple with real concerns of Indigenous applicants

National Energy Board issued report concerning proposed expansion of Trans Mountain pipeline system. Board’s report recommended that Governor in Council approve expansion. Governor in Council accepted Board’s recommendation and issued Order in Council. Applicants brought applications for judicial review of Board’s report and Order in Council. Applications were consolidated. Applications allowed. Order in Council was quashed and matter was remitted back to Governor in Council for appropriate action, if it sees fit, to address flaws and, later, proper redetermination. Most of flaws asserted against Board’s process and findings were without merit. However, Board made one critical error. Board unjustifiably defined scope of Project under review not to include Project-related tanker traffic. Unjustified exclusion of marine shipping from scope of Project led to successive, unacceptable deficiencies in Board’s report and recommendations. As a result, Governor in Council could not rely on Board’s report and recommendations when assessing Project’s environmental effects and the overall public interest. Secondly, Canada acted in good faith and selected appropriate consultation framework. However, at last stage of consultation process prior to decision of Governor in Council, stage called Phase III, Canada’s efforts fell well short of mark set by Supreme Court of Canada. Canada failed in Phase III to engage, dialogue meaningfully and grapple with real concerns of Indigenous applicants so as to explore possible accommodation of those concerns. Duty to consult was not adequately discharged.

Tsleil-Waututh Nation v. Canada (Attorney General) (2018), 2018 CarswellNat 4685, 2018 CarswellNat 4686, 2018 FCA 153, 2018 CAF 153, Eleanor R. Dawson J.A., Yves de Montigny J.A., and Judith Woods J.A. (F.C.A.).