Focus On

Aboriginal Law - Aboriginal status and rights - Duties of the Crown - Fair dealing and reconciliation

Thursday, July 21, 2016 @ 8:00 PM  


Applications by several First Nations and environmental advocacy groups and Unifor for judicial review of an Order in Council, requiring the National Energy Board (Board) to issue Certificates of Public Convenience and Necessity concerning the Northern Gateway pipeline project, and for judicial review of a report issued by a Joint Review Panel (Panel) that was considered by the Governor in Council in making the Order. The applicants also appealed from the Certificates. The project consisted of two 1,178 kilometer pipelines and associated facilities, intended to transport oil from Alberta to BC for loading onto tankers for export, and to transport condensate from tankers in BC to Alberta for distribution to Alberta markets. The project, if approved, could operate for 50 years or more. Northern Gateway had the support of 60 per cent of the Aboriginal communities along the pipelines’ right of way. The remaining communities’ members were among the applicants. Northern Gateway submitted a preliminary information package on the project to the Board and the Canadian Environmental Assessment Agency in 2005. In 2006, the project was referred to a Review Panel. Aboriginal groups were part of the review process, which included a review phase, a pre-hearing phase, a hearing phase, a post-report phase and a regulatory/permitting phase. Near the end of 2009, an agreement was signed by the Board and Canadian authorities regarding the process. The formal approval process commenced in 2010. Public input was sought and hearings were arranged at three locations. Between September 2012 and June 2013, the Panel conducted final hearings. The Panel ultimately found that the project was in the public interest, recommending that approval Certificates be issued subject to 209 conditions requiring plans, studies and assessments to be considered and assessed by the Board. The Panel recommended that the Governor in Council conclude that the adverse environmental effects from the project would not be significant, and that significant adverse effects that certain caribou and bear populations would experience were justified. The Governor in Council accepted the Panel’s findings and issued the Certificates, noting that the project would diversify Canada’s energy export markets and would contribute to Canada’s long-term economic prosperity.

HELD: Application allowed. The Order and the Certificates issued thereunder were quashed. While the Order was acceptable and defensible on the facts and the law and was reasonable, the Governor in Council could not make it because Canada failed to fulfil its duty to consult with the First Nations peoples. Canada exercised good faith and designed a good framework to fulfil its duty to consult, but failed in executing that framework. The Governor in Council gave due consideration to the recommendations it received and engaged in a proper balancing of economic, cultural, environmental and other factors in making its decision. However, the review process involved multiple failures on the part of the Canadian authorities to engage, dialogue and grapple with concerns expressed in good faith by all of the applicant/appellant First Nations. This phase was hurried along with no good reason. No answers were given when First Nations raised questions. The Panel did not amend its final report to address the concerns expressed in the fourth phase of the process. Information should have been freely exchanged about Canada’s views on the strength of the First Nations’ claims to Aboriginal rights and title, as this was crucial in determining the depth of consultation that was required. It was unclear from the Order whether the Governor in Council was satisfied that Canada had met the duty to consult.