Originally posted 25 September 2018
SUMMARY
- Options remain
- Implications
- Chart of parties to court action
- Excerpts from decision
- Links to previous posts
While the majority decision of Federal Court of Appeal Justice Eleanor Dawson threw a curve into the plans of Justin Trudeau and Rachel Notley, recent commentary suggest there may be a way out.
Federal Court of Appeal decision
Options include 1) vastly enhanced marine disaster mitigation; 2) a possible re-location of the terminal to Robert’s Bank; and 3) mediation of the Coldwater’s Band’s concerns about the aquifer over its traditional territory. All options will add tens of millions, if not billions, to the project’s costs.
Implications: 1) the Courts will, in the absence of meaningful efforts by politicians to protect the environment, step in to safeguard the long-term health of the environment (e.g. oxygen and water). While the Court stopped short of articulating a case for an Environmental Charter of Rights, this debate is surely a matter of time.
2) The Court’s decision has emboldened politicians on the right (including Premier Notley) to challenge Justin Trudeau’s carbon tax plans in support of the Paris Accord. While efforts to legally challenge the federal plans are likely a waste of provincial taxpayers’ money, they play to the base of these parties’ supporters.
3) Management of marine and Indigenous matters are delicate. Twenty-two weeks for the NEB to review marine concerns, including the application of the Species at Risk Act, will be extremely difficult. How does one objectively calculate the increased danger to species from more and larger tankers coming and going into Burrad Inlet? What does meaningful consultation mean? The courts know what “meaningful consultation” isn’t. This is why a senior jurist, steeped in the Supreme Court’s thought process about aboriginal title, land claims, and the duty to consult, is not enough. There is need of an individual satisfactory to both the Indigenous community and resource development industry. The absence of any announcement on this front suggests there is no “perfect” candidate.
4) Failure to soon appoint a “mediator” or mediators will continue the angst felt by Premier Notley. Continuing uncertainty for investors will be reflected in renewed claims from Canada’s financial and energy industries (and various “think-tanks”) that Canada is losing out on international investment.
Parties to Appeal
The Table below is derived from the Judgment that set out the parties which appealed the decision of the federal Cabinet approving the Trans Mountain project.
| Parties | Population Affected | Territory Affected | Affected Project Assets | Notes |
| Tsleil-Waututh Nation | 500 | Areas across British Columbia’s Lower Mainland, including sections of the Lower Fraser River, Howe Sound, Burrard Inlet and Indian Arm. | 18 km of pipeline and 45 km of marine shipping route | The Crown states that it assessed its duty to consult with Tsleil-Waututh on the deeper end of the consultation spectrum |
| Upper Nicola | 130 km of pipeline; Stump Station and Kingsvale Station | |||
| Stó:lō Collective | Lower Fraser River watershed. | 170 km of pipeline | The Crown assessed its duty to consult Upper Nicola at the deeper end of the consultation spectrum | |
| Coldwater Indian Band | 850 | Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater Valleys and the Coquihalla area | 226 km of pipeline; Kamloops Terminal, the Stump Station, the Kingsvale Station and the Hope Station) | The Crown assessed its duty to consult Stó:lō at the deeper end of the consultation spectrum. |
| Stk’emlupsemc te Secwepemc of the Secwepemc Nation | 1855 | 350 km of pipeline; Black Pines Station and Kamloops Terminal | The Crown assessed its duty to consult SSN at the deeper end of the consultation spectrum. | |
| Squamish Nation | 4,000 | Burrard Inlet, English Bay and Howe Sound, as well as the rivers and creeks that flow into these bodies of water. | Westridge Marine Terminal, the Burnaby Terminal, shipping route for the Project will also travel past three Squamish reserves through to the Salish Sea. | The Crown assessed its duty to consult Coldwater at the deeper end of the consultation spectrum. |
| City of Burnaby | 223,000 | Municipal boundaries | New Westridge Marine Terminal; Burnaby Terminal; two new delivery lines connecting the Burnaby Terminal to the Westridge Marine Terminal through a new tunnel to be drilled under the Burnaby Mountain Conservation Area; portion of the main pipeline along a new route to the Burnaby Terminal. | The Crown assessed its duty to consult Squamish at the deeper end of the consultation spectrum. |
| City of Vancouver | 25,000 residents of Vancouver live within 300 metres of the Burrard Inlet and English Bay shorelines. | Municipal boundaries | 69.8 kilometres of waterfront along Burrard Inlet, English Bay, False Creek and the Fraser River, with 18 kilometres of beaches and a 22-kilometre long seawall. | |
| Source: Federal Court of Appeal; 30 August 2019, Docket A-78-17, TSLEIL-WAUTUTH NATION et al vs. AG of Canada, et al | ||||
Excerpts from Decision
[60] As the responsible authority, the Board was required to take into account the environmental effects enumerated in subsection 5(1) of the Canadian Environmental Assessment Act, 2012. These effects include changes caused to the land, water or air and to the life forms that inhabit these elements of the environment. The effects to be considered are to include the effects upon Aboriginal peoples’ health and socio-economic conditions, their physical and cultural heritage, their current use of lands and resources for traditional purposes, and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
[64] Three decisions are available to the Governor in Council. It may, by order:
i. “direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report” (paragraph 54(1)(a) of the National Energy Board Act); or
ii. “direct the Board to dismiss the application for a certificate” (paragraph 54(1)(b) of the National Energy Board Act); or
iii. “refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration” and specify a time limit for the reconsideration (subsections 53(1) and (2) of the National Energy Board Act).
[80] On December 16, 2013, Trans Mountain formally filed its application, seeking approval to construct and operate the Project.
The hearing order did not allow any right of oral cross-examination.
The hearing order also set out a process for interveners and the Board to compel adequate responses to their Information Requests, an opportunity for Indigenous groups to provide oral traditional evidence, and allowed both written arguments in chief and summary oral arguments.
[124] Under this legislative scheme, the Governor in Council alone is to determine whether the process of assembling, analyzing, assessing and studying is so deficient that the report submitted does not qualify as a “report” within the meaning of the legislation:
The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a “report” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report. In this context the Board’s report may be reviewed to ensure that it was a “report” that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court.
[137] Put another way, a statutory pre-condition for a valid Order in Council is a report from the Board prepared in accordance with all legislative requirements. The Governor in Council is therefore required to be satisfied that the report was prepared in accordance with the governing legislation. This makes practical sense as well because the Board’s report formed the factual basis for the decision of the Governor in Council.
[144] In both impugned affidavits Mr. Love swore that “I have personal knowledge of the matters in this Affidavit, except where stated to be based on information and belief, in which case I believe the same to be true.” Notwithstanding this statement, on cross-examination, Mr. Love admitted that his first affidavit was based almost entirely on facts of which he had no personal knowledge and that his affidavit failed to disclose that he relied on information and belief to assert those facts. He largely relied on Trans Mountain’s lawyers to prepare the paragraphs of his affidavit of which he had no direct knowledge. The basis of his belief that his affidavit was truthful and accurate was his “trust in other people”. He frequently admitted that there were other Trans Mountain employees who had direct knowledge of the matters set out in his affidavit..
[298] Of particular relevance to Burnaby’s concern are the first two paragraphs of the Board’s reasons:
The Board finds that Trans Mountain’s route selection process, route selection criteria, and level of detail for its alternative means assessment are appropriate. The Board further finds that aligning the majority of the proposed pipeline route alongside, and contiguous to, existing linear disturbances is reasonable, as this would minimize the environmental and socio-economic impacts of the Project.
The Board acknowledges the concern raised by the City of Burnaby that Trans Mountain did not provide an assessment of the risks, impacts and effects of the alternate marine terminal locations at Kitimat, B.C., or Roberts Bank in Delta, B.C. The Board finds that Trans Mountain has provided an adequate assessment, including consideration of technical, socio-economic and environmental effects, of technically and economically feasible alternative marine terminal locations.
[439] Given the Board’s approach to the assessment and its findings, the Board’s report was adequate for the purpose of informing the Governor in Council about the effects of Project-related marine shipping on the Southern resident killer whales and their use by Indigenous groups. The Board’s report adequately informed the Governor in Council of the significance of these effects, the Board’s view there were no direct mitigation measures Trans Mountain could apply to reduce potential adverse effects from Project-related tankers, and that there were potential mitigation measures beyond the Board’s regulatory authority and so not the subject of proper consideration by the Board or conditions. Perhaps most importantly, the report put the Governor in Council on notice that the Board defined the Project not to include Project-related marine shipping. This decision excluded the effects of Project-related shipping from the definition of the Project as a designated project and allowed the Board to conclude that, as it defined the Project, the Project was not likely to cause significant adverse effects.
[488] The extent or content of the duty of consultation is fact specific. The depth or richness of the required consultation increases with the strength of the prima facie Indigenous claim and the seriousness of the potentially adverse effect upon the claimed right or title (Haida Nation, paragraph 39; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, paragraph 36).
[494] The consultation process does not dictate a particular substantive outcome. Thus, the consultation process does not give Indigenous groups a veto over what can be done with land pending final proof of their claim. What is required is a process of balancing interests—a process of give and take. Nor does consultation equate to a duty to agree; rather, what is required is a commitment to a meaningful process of consultation (Haida Nation, paragraphs 42, 48 and 62).
[496] Good faith is required on both sides in the consultative process: “The common thread on the Crown’s part must be ‘the intention of substantially addressing [Aboriginal] concerns’ as they are raised […] through a meaningful process of consultation” (Haida Nation, paragraph 42). The “controlling question in all situations 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, paragraph 45).
[497] At the same time, Indigenous claimants must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart the government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached (Haida Nation, paragraph 42).
[501] As the Supreme Court observed in Haida Nation at paragraph 46, meaningful consultation is not just a process of exchanging information. Meaningful consultation “entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback.” Where deep consultation is required, a dialogue must ensue that leads to a demonstrably serious consideration of accommodation. This serious consideration may be demonstrated in the Crown’s consultation-related duty to provide written reasons for the Crown’s decision.
[506] Two final points. First, where the Crown knows, or ought to know, that its conduct may adversely affect the Indigenous right or title of more than one First Nation, each First Nation is entitled to consultation based upon the unique facts and circumstances pertinent to it (Gitxaala, paragraph 236).
[507] Second, it is important to understand that the public interest and the duty to consult do not operate in conflict. As a constitutional imperative, the duty to consult gives rise to a special public interest that supersedes other concerns commonly considered by tribunals tasked with assessing the public interest. In the case of the Board, a project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (Clyde River, paragraph 40).
[599] As this Court explained in Gitxaala at paragraph 279, Canada was required to engage, dialogue and grapple with the concerns expressed to it in good faith by the Indigenous groups impacted by the Project. Meaningful dialogue required someone representing Canada empowered to do more than take notes—someone able to respond meaningfully to the applicants’ concerns at some point in time.
[768] It follows that Order in Council P.C. 2016-1069 should be quashed, rendering the certificate of public convenience and necessity approving the construction and operation of the Project a nullity. The issue of Project approval should be remitted to the Governor in Council for prompt redetermination.
[770] Specifically, the Board ought to reconsider on a principled basis whether Project-related shipping is incidental to the Project, the application of section 79 of the Species at Risk Act to Project-related shipping, the Board’s environmental assessment of the Project in the light of the
Project’s definition, the Board’s recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate.
[771] Further, Canada must re-do its Phase III consultation. Only after that consultation is completed and any accommodation made can the Project be put before the Governor in Council for approval.
Earlier Posts
Pressure reaching boiling point over Kinder Morgan project
Now it gets VERY interesting-opinion
Now it really gets interesting
The Matter of “free, prior and informed consent”