Yesterday, the Federal Court of Appeal (“FCA”) released its decision in Tsleil-Waututh Nation (et al.) v. Canada (Attorney General), 2018 FCA 153. The proceeding was a consolidation of several challenges to the National Energy Board (“NEB”)’s report and federal Cabinet’s subsequent decision to approve the Kinder Morgan Trans Mountain Pipeline Expansion project.
The FCA found in favour of the applicants on both major grounds of review: first, that the NEB’s review process and findings were so flawed that Cabinet could not reasonably rely on the NEB’s report; and second, that the federal government had not fulfilled its duty to consult the Indigenous applicants.
On the first ground, the FCA emphasized the NEB’s “one critical error” in the review process – that the NEB excluded Project-related marine shipping from the scope of review. This led to a deficient report and recommendations to Cabinet. As a result, Cabinet could not reasonably rely on the report in making its decision. The FCA specifically discussed the NEB’s finding that Project-related marine shipping would have adverse effects on the endangered Southern Resident Killer Whale, and noted that the Cabinet “was fully aware” of these effects when it made its decision to approve the Project. Cabinet did not require measures to minimize these effects, which was also contrary to its obligations under the Species at Risk Act.
The FCA found that on the second ground, the federal government did not adequately discharge its duty to consult Indigenous peoples. Canada failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns”. Rather, the NEB simply passively heard and received concerns from the Indigenous applicants. Though the FCA found that in this case, the federal government had improved upon the consultation process that it had applied in the Northern Gateway pipeline review process (as described in Gitxaala Nation v. Canada, 2016 FCA 187), it found that the process at issue still fell short of the standard required.
In its result, the Court quashed the Project’s approval and sent it back to Cabinet to take appropriate action to remedy the flaws.
Summary by Erin Gray