Federal Court Of Appeal Upholds Approval For The Trans Mountain Expansion Project

Today the Federal Court of Appeal (FCA) released its decision, Coldwater Indian Band et al v. Canada (Attorney General) et al, upholding the Governor in Council's (GIC's) approval of the Trans Mountain Expansion Project, and the GIC's determination that Indigenous consultations were reasonable, and in compliance with the previous direction of the FCA.

The Hon. Frank Iacobucci was appointed as Federal Representative, and with a team from Torys, oversaw and provided guidance to the Government of Canada in respect of those Indigenous consultations, following the August 30, 2018 decision quashing the approval of the project. 129 potentially affected Indigenous groups were consulted by the Crown and the proponent, the largest such exercise in Canadian history.

What you need to know

The FCA dismissed applications for judicial review of the GIC's approval of the Trans Mountain Expansion Project brought by four Indigenous groups alleging that the Crown did not adequately discharge its duty to consult and accommodate. The FCA largely applied existing law on what constitutes meaningful consultation on the deep end of the consultation spectrum. Consultation must be in good faith, with an open mind, with two-way dialogue that leads to a demonstrably serious consideration of accommodation. The Court also emphasized that the process of accommodation is a balance of Indigenous concerns againstcompeting societal interests. The FCA also explained what the consultation process is not, including that there is no veto, that the consultation and accommodation process does not dictate one substantive outcome, and that parties may not use tactical behaviour in an attempt to frustrate the consultation process or exercise a de facto veto. Parties must also avoid unnecessary delay, posturing and insisting on matters of form rather than substance. The FCA clarified its role when reviewing a decision regarding the adequacy of consultation for reasonableness. The Court's task is to review the reasons of the decision-maker, in this case the GIC, to ensure that they do not suffer from errors in reasoning or logical deficienciesnot to reach its own independent view as to whether consultations were adequate. It will be important for project proponents to work with their regulators, to the extent possible, to ensure that they are well-positioned to deliver such well-supported reasons. The FCA found that the Crown remedied the defects identified by the Court in its August...