Federal Court Of Appeal Upholds Approval Of Trans Mountain Pipeline Expansion Project

On February 4, 2020, the Federal Court of Appeal rendered its decision in Coldwater et al. v. Canada (Attorney General) et al., 2020 FCA 34, dismissing the challenges of four First Nation applicants to Federal Cabinet's approval of the Trans Mountain Pipeline Expansion Project.

Timeline

May 19, 2016 - the National Energy Board ("NEB") issued its hearing report recommending that the pipeline be approved based on Canada's public interest. November 29, 2016 - Governor in Council (Federal Cabinet) accepted the NEB's recommendation and issued an Order in Council approving the project. August 30, 2018 - The Federal Court of Appeal set aside Canada's approval of the pipeline, and sent the matter back to the Federal Cabinet for reconsideration. ( see our blog post for this decision) November 19, 2018 - The Federal Government reinitiated consultations with potentially affected Indigenous groups. June 18, 2019 - Governor in Council (Federal Cabinet) issued a second Order in Council approving the project. September 4, 2019 - Four Applicants: Coldwater Indian Band; Squamish Nation; Tsleil-Waututh Nation; and the Ts'elxwéyeqw Tribe, a collective of seven Stó:lō villages, challenged the second Order in Council approving the project. The Decision:

The Federal Court of Appeal dismissed the challenges to the federal approval of the pipeline.

The Court said it was reasonable for the Governor in Council to measure the adequacy of its second consultation process against the shortcomings previously identified by the Federal Court of Appeal in its 2018 decision. The 2018 Federal Court of Appeal decision envisaged a focused and narrow consultation process.

The Court expressed the importance of reconciliation and noted that the duty to consult and accommodate is aimed at helping address the historical wrongs where decisions affecting Indigenous peoples have been made without regard for their interest, dignity or membership in Canadian society. The Court confirmed that the Crown must discharge its duty to consult in a "meaningful" and "reasonable" way. The Court reviewed the indicia of "reasonable" and "meaningful" consultation:

Consultation is more than providing a forum for Indigenous peoples to "blow off steam"; The Crown must be open-minded about accommodation and exercise good faith; Two-way dialogue must be more than simply exchanging and discussing information; Dialogue should lead to a demonstrably serious consideration of accommodation; The Crown must...