Gitxaala Nation et al. v. Canada, 2016 FCA 187
June 30, 2016
Federal Court of Appeal
Shocks rippled across Western Canada on June 30th, when the Federal Court of Appeal overturned Canada’s approval of the Northern Gateway Pipeline project. Although this is not the end of the road for the pipeline project, this is a significant delay and a win for many Indigenous communities and environmentalists who have been fighting tooth and nail against the pipeline for years. The Federal Court of Appeal found that Canada failed to carry out its constitutional duty to properly consult and accommodate affected Indigenous peoples, and sent Canada back to properly consult before making a final decision on whether to approve the pipeline project.
The Northern Gateway Pipeline would include two 1,178 kilometre pipelines from Alberta to British Columbia, a marine terminal and oil tanker routes.
The proposed project would impact the territory and rights of numerous Indigenous peoples, including the Gitxaala Nation, the Haisla Nation, the Gitga’at First Nation, the Kitasoo/Xai’Xais Band, the Heiltsuk, the Nadleh Whut’en and Nak’azdli Whut’en and the Haida Nation. These Indigenous Nations joined with Unifor, ForestEthics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation and B.C. Nature to challenge the project’s approval. The various cases were heard together by the Federal Court of Appeal.
As is common with environmental assessments of large resource projects, Canada established a 5-phase consultation framework:
• Phase I: Preliminary Phase (Consultation and information on the mandate of the Joint Review Panel, made up of the National Energy Board and the Canadian Environmental Assessment Agency)
• Phase II: Pre-hearing Phase (Information on the Joint Review Panel process)
• Phase III: The Hearing Phase (Hearings of the Joint Review Panel, where Indigenous Nations are encouraged to provide information)
• Phase IV: The Post-Report Phase (Following the Report of the Joint Review Panel, the Crown is to engage in consultation on the Report and anything outside of the Joint Review Panel’s mandate. After this phase, Canada is to decide whether to approve the project)
• Phase V: The Regulatory/Permitting Phase (Further consultation on permits and authorizations to be granted for the Project, if approved)
Phase 4, following the Joint Panel’s Report, was the only opportunity for Indigenous Nations to engage directly with Canada on substantive issues on the proposed pipeline prior to Canada’s decision. It was during this important part of the consultation process that the Federal Court of Appeal found that Canada significantly failed to uphold its constitutional duty to consult and accommodate.
The Court found that Canada’s decision to approve the project was reasonable given available scientific expertise and the weighing of competing public interest considerations. However, beyond these obligations, Canada had a duty to consult with Indigenous Nations potentially affected by the project. Even if reasonable, Canada’s decision cannot be valid if it failed in its constitutional obligations. By failing to properly consult during Phase 4, Canada also breached its duty to act honourably.
Phase 4, following the Joint Review Panel’s report, fell short for numerous reasons, including:
• Timelines were unreasonably short to be able to meaningfully consult;
• Requests by Indigenous Nations to extend timelines were rejected without proper consideration;
• When inaccurate information was put before Cabinet, Canada was unwilling to listen to the Nations’ concerns or take steps to fix the problem;
• Canada acted in bad faith by refusing to meaningfully engage with the Nations individually regarding their concerns. Instead it used a “one-size fits all” approach that was largely limited to taking notes.
• Canada was only interested in accommodation measures and not consultation;
• Canada refused to disclose necessary information on their assessment of the strength of each Nation’s claims to rights and title.
The Federal Court of Appeal also found that Canada did not provide adequate reasons for its approval of the pipeline project. In such a large project, where numerous interests must be balanced, detailed reasons act as a “safeguard” to ensure other interests don’t displace the interests of Aboriginal rights.
Overall, the Federal Court of Appeal found that Canada’s consultation during its hurried and brief Phase 4 fell “well short of the mark”. Canada failed to uphold its constitutional obligations to consult meaningfully and failed to maintain the honour of the Crown.
As a remedy, the Federal Court of Appeal quashed Cabinet’s approval of the project, and sent the matter back to Cabinet for redetermination.
Moving forward, the Court stated that Cabinet could receive further submissions and decide not to approve the project. Or, Canada can redo Phase 4 consultation properly. Once the duty to consult is properly fulfilled, the matter could be placed before Cabinet for redetermination. Only then could Cabinet approve the project.
Although this may or may not spell the end for the Northern Gateway pipeline project, it is a big win for Indigenous Nations across Canada, who have been saying all along that deep, individual, meaningful consultation is required for a project with such profound impacts. For such large projects, rushed timelines are inappropriate and all information must be shared. However, in its decision the Federal Court of Appeal focused only on Phase 4, and found that the other phases operated well. Many Indigenous Nations do not share this view. It will be important to watch how this decision affects other consultation processes in the future.