Trans Mountain Decision: Application Of Existing Principles Or Evolving Standard?

In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.

In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal's (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.

Background on the TMX Project and the FCA Decision

The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta's oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic.1

The federal Cabinet approved the TMX Project on November 29, 2016 based on the recommendation of the National Energy Board (NEB). Following a detailed review and environmental assessment, the NEB concluded that the TMX Project was in the public interest and unlikely to cause significant adverse environment effects if certain conditions and mitigation measures were implemented. The NEB's conclusions were based on an environmental assessment under the Canadian Environmental Assessment Act, 2012, which did not assess the impacts of project-related marine traffic. However, the NEB did separately assess this issue under the NEB Act and determined that the operation of project-related vessels would likely result in significant adverse effects on the Southern Resident Killer Whale and traditional Indigenous uses associated with the whale, which is an endangered species. These findings were before Cabinet when it approved the project with 157 conditions.2 The then proponent also underwent a separate voluntary federal review process for marine transportation, which proposed additional measures to provide for a high level of safety for tanker operations and the proponent agreed to adopt each of the recommended measures.3

The former proponent undertook significant consultation with Indigenous groups and numerous Indigenous groups participated in the NEB process. Federal officials also consulted with Indigenous groups both before and after the release of the NEB report and Indigenous groups were provided the opportunity to provide short written submissions to Cabinet.4

After the federal government announced its decision, judicial reviews were commenced by two municipalities, two environmental groups, and five Indigenous groups/collectives. The Indigenous groups/collectives were all in British Columbia and were concerned with a variety of issues including marine safety, impacts to an aquifer, impacts on culturally significant sites and traditional harvesting activities, impacts on asserted Aboriginal title, pipeline safety, and emergency preparedness.

The Federal Court of Appeal ultimately quashed the federal government's approval on August 30, 2018 after finding that the consultation undertaken by federal officials was inadequate and that the NEB did not adequately assess the impact of increased tanker traffic on marine life. With respect to the duty to consult, the Federal Court of Appeal found several deficiencies, including a lack of meaningful two-way dialogue between Indigenous groups and federal officials, insufficient accommodation and a lack of willingness on the part of the federal government to depart from the NEB's findings and conditions, and that the federal government disclosed it rights impact assessments too late in the process.5 In addition, the FCA also found that the NEB's report did not give adequate information to the federal government on...