The Federal Court Of Appeal Quashes The Trans Mountain Pipeline Expansion: An Overview Of Tsleil-Waututh Nation v Canada (Attorney General)

In August 2018 the Federal Court of Appeal (the "Court") released its decision, Tsleil-Waututh Nation v Canada (Attorney General),1 which quashed the approval of the proposed Trans Mountain pipeline expansion project (the "Project") and remitted the matter to the Governor in Council for redetermination.2

On October 3, 2018, the Federal Government announced that it would not appeal the Court's decision.3 Responding to the Court's instruction, the Federal Government:

referred the National Energy Board's (the "Board") recommendations back to the Board for reconsideration, to account for the impact of Project-related marine shipping,4 and appointed former Supreme Court Justice, the Honourable Frank Iacobucci, to oversee new consultation with each of the 117 Indigenous groups affected by the Project.5 According to Court's decision, key to Justice Iacobucci's success will be sustained effort to engage in meaningful two-way dialogue and openness to supplementing the Board's recommendations. This article delves into the Court's decision.

Background

In May 2016 the Board issued its report recommending that the Governor in Council approve the pipeline expansion. The Board found that the Project was in Canada's public interest and was unlikely to cause significant adverse environmental effects if recommended environmental protection procedures, mitigation measures, and conditions were implemented.6

In November 2016, the Governor in Council issued an Order in Council accepting the Board's recommendations and directed the Board to approve the Project.7

Several applicants, including multiple Indigenous groups, two non-governmental agencies, the City of Burnaby, and the City of Vancouver, applied for judicial review of:

the Board's report, which recommended approval of the Project, and the Governor in Council's decision (Order in Council) to accept the Board's recommendations.8 The Court dismissed the applications for judicial review of the Board's report.9 The Court concluded that the Board's report was not justiciable because it "constituted a set of recommendations...that lacked any independent legal or practical effect."10 The Court proceeded to review the Governor in Council's decision.

Judicial Review of Governor in Council's Decision

The Court determined that the Order in Council was invalid because:

1 the Governor in Council could not reasonably rely on the Board's report. The Board's report was materially flawed because the Board failed to consider the impact of Project-related marine shipping, and 2 the Crown did not fulfil its duty to consult with the Indigenous applicants.11 Governor in Council Could Not Rely on Board's Flawed Report

The Court held that the Governor in Council could not reasonably rely on the Board's report to assess the...