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ABORIGINAL LANDS - Duties of the Crown - Fair dealing and reconciliation

Wednesday, March 11, 2020 @ 9:42 AM  


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Applications by four Indigenous Bands for judicial review of an Order in Council approving the Trans Mountain Pipeline Expansion Project on a reconsideration decision. The first Order in Council approving the project was set aside due to the impermissibly under-inclusive nature of the environmental assessment that formed part of the basis for the approval and the Crown’s failure to fulfil its duty to consult with Indigenous peoples. In ordering the reconsideration, the Court did not require that the consultation process begin anew but required focused consultation to address the shortcomings it identified. The Governor in Council considered that the consultation efforts made after the reconsideration order adequately remedied the identified flaws. The applications for judicial review were restricted to the duty to consult issues. The applicants alleged that the renewed consultation in which they were each involved did not adequately address the shortcomings identified in the prior court order.                    

HELD: Applications dismissed. The Governor in Council could reasonably conclude that the flaws identified in the prior order were adequately remedied by the renewed consultation process. This Court had no role in deciding whether the project should be approved or not and should not second-guess the outcome based on its own view of the matter. It was up to the Governor in Council to assess the facts to determine the adequacy of consultation. Post-approval consultation was both relevant and important. The certainty of further consultations and the certainty of the terms on which they would be conducted were factual elements that the Governor in Council was entitled to consider when making its decision. The Governor in Council’s decision was reasonable. The Governor in Council’s key justifications for deciding as it did were fully supported by evidence in the record. The evidentiary record showed a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication and considering and sometimes agreeing to accommodations, all consistent with the concepts of reconciliation and the honour of the Crown. The applicants’ detailed submissions failed because they raised matters that could have been raised in the earlier judicial review application but were not and, accordingly, the applicants were estopped from raising them now. They raised matters that were raised before this Court in the earlier application and were dealt with by this Court. Furthermore, they raised matters outside of the scope of the issues the Leave Order permitted to be raised, or they had no merit on their own terms. What was said to be unaddressed was adequately addressed by Canada, or they, alone or in combination with other matters, did not take away from the overall reasonableness of the Governor in Council’s decision that the duty to consult was adequately met and that, overall, the Project was in the public interest.

Coldwater Indian Band v. Canada (Attorney General), [2020] F.C.J. No. 149, Federal Court of Appeal, M. Noël C.J. and J.D.D. Pelletier and J.B. Laskin JJ.A., February 4, 2020. Digest No. TLD-March92020008