CANADIAN
ADMINISTRATIVE
LAW
Liz Nastasi & Trevor Guy
The Duty to Consult
Constitutional Duty to Consult and Accommodate Indigenous Peoples
•Canada’s indigenous peoples have special, constitutionally protected rights to
consultation before decisions are taken that affect their indigenous rights and claims.
•The duty to consult is a constitutional duty. It applies in the context of modern treaties.
Officials must look at treaty provisions first. Where treaty consultation provisions do
not apply to a proposed activity, a "parallel" duty to consult exists.
•The broad purpose of the duty to consult and accommodate is to advance the
objective of reconciliation of pre-existing Aboriginal societies with the assertion of
Crown Sovereignty.
•The duty flows from the “honour of the Crown” and its fiduciary duty to Indigenous
peoples.
•The Crown constitutes both the Federal and Provincial governments.
The Duty to Consult
How does it fit within admin law? When does it arise? and
How do you enforce it?
• The duty is one that is owed by the Crown … however, the Crown may
rely on agencies and tribunals to fulfill that obligation.
• The duty is only as meaningful as its enforceability.
• Where in the adjudicative structure can this duty be enforced?
• Remember Conway and the Charter
• If the duty to consult is to be meaningful, it must be enforceable
through reasonable, accessible means … what does that look like?
The Duty to Consult
How does it fit within admin law? When does it arise? and
How do you enforce it?
• Unless the power to decide whether consultation is adequate has
been clearly excluded from its powers, tribunals with the power to
decide questions of law, must determine whether consultation was
sufficient, so long as the issue is put before them.
• The Crown can rely on a tribunal’s process to fulfil the duty to consult
so long as the tribunal has the power to do what the duty to consult
requires (for example, the power to impose conditions on a project).
• If a tribunal’s powers are insufficient, or if the tribunal does not provide
adequate consultation and accommodation, then the Crown must
provide further avenues for meaningful consultation and
accommodation before the project is approved.
The Duty to Consult
• The SCC trilogy that confirmed this duty to consult came in 2004
• Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73
• Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), 2004 SCC 74.
• Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)
• The case law that follows examines how, when and where
indigenous groups can enforce the duty to consult
• What conduct of the crown will trigger the duty and
• What what conduct is reviewable by the court
The Duty to Consult - Pre-Trilogy Cases
Guerin v. The Queen, [1984] 2 SCR 335
• An Indian Band surrendered valuable surplus reserve lands to the Crown for lease to a
golf club. The terms obtained by the Crown, however, were much less favourable than
those approved by the Band at the surrender meeting. The surrender document did not
refer to the lease or disclose the terms approved by the Band. The Indian Affairs Branch
officials did not return to the Band for its approval of the revised terms. Indeed, they
withheld pertinent information from both the Band and an appraiser assessing the
adequacy of the proposed rent. The trial judge found the Crown in breach of trust in
entering the lease and awarded damages as of the date of the trial on the basis of the
loss of income which might reasonably have been anticipated from other possible uses of
the land. The Federal Court of Appeal set aside that judgment and dismissed a cross-
appeal seeking more damages.
• The Supreme Court in Guerin found that the Crown had violated its fiduciary duty to the
band by failing to consult with them when they accepted a lesser lease and unilaterally
changed the legal position of the band, without their knowledge or consent. Justice
Dickson stated “In obtaining, without consultation, a much less valuable lease than the
promised, the Crown, breached the fiduciary obligation it owed the band.”
The Duty to Consult - Pre-Trilogy Cases
R v Sparrow, [1990] 1 S.C.R. 1075
• Sparrow was the first decision to apply section 35 of the Constitution Act,
1982, recognizing and affirming that Aboriginal rights predate Canada’s
beginnings as a country.
• In Sparrow, the Court determined the right of the Musqueam Band, a west-
coast Salish people, to fish in traditional territory along the Fraser River
delta. Although the Musqueam had relied on the Fraser River for
sustenance for generations, the Fisheries Act began to regulate the Band’s
fishing activities, administering the Band a license to fish for food. In 1984,
a member of the Musqueam band, Ronald Sparrow, was charged with
fishing with a net larger than that which was permitted by this food license.
• Mr. Sparrow was convicted at trial but case eventually went to SCC
The Duty to Consult - Pre-Trilogy Cases
Sparrow
• The Court in Sparrow established the test for determining whether the Crown is
justified in limiting Aboriginal rights - a ‘justification test’
• First, it asks whether there has been a prima facie infringement of an Aboriginal or
treaty right. Next, the test asks whether the Crown is justified in this infringement. This
second part of the test asks whether there is a valid legislative objective; whether the
infringement has been minimized; whether fair compensation has been offered where
applicable; and whether Aboriginal groups were consulted or “at least informed”.
Delgamuukw v British Columbia, [1997] 3 SCR 1010
• In 1997 the Supreme Court in R v Delgamuukw expanded the scope of the duty to
consult with the introduction of a ‘spectrum’ on consultation, holding the greater the
impact of the rights, the greater the consultation and in some cases, consent would be
required.
Chronology of Cases
The Supreme Court 2004 – Duty to Consult Trilogy
1. Haida Nation v British Columbia (Minister of Forests)
2. Taku River Tlingit v. British Columbia (Project
Assessment Director)
3. Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage)
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• Leading SCC decision on the Crown duty to consult Aboriginal groups prior to
exploiting lands to which they may have claims.
• BC government had issued tree farm licences on Haida land. The Haida were in
the middle of land claims that could take years to resolve.
• Chief Justice McLachlin, writing for a unanimous court, found that the Crown has a
"duty to consult with Aboriginal peoples and accommodate their interests".
• This duty is grounded in the honour of the Crown, and applies even where title has
not been proven. The scope of this duty will vary with the circumstances; the duty
will escalate proportionately to the strength of the claim for a right or title and the
seriousness of the potential effect upon the claimed right or title. However,
regardless of what the scope of the duty is determined to be, consultation must
always be meaningful.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• 1961 the provincial government of British Columbia issued a "Tree Farm Licence" on
the Queen Charlotte islands, located off the west coast.
• The Haida Nation had a pending land claim which had not yet been recognized at law.
• The Haida Nation also claimed an aboriginal right to harvest red cedar in that area.
• In 1999 the Minister authorized a transfer of the licence to the Weyerhauser Company
without consent from or consultation with the Haida Nation.
• The Haida Nation brought a suit, requesting that the replacement and transfer be set
aside.
• SCC found the crown had a duty to consult with the Haida – but Weyerhauser did not.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• This case marked a new era in Aboriginal law - in contrast to the
emphasis on section 35 of the Constitution Act, 1982, the Haida Nation
offered a forward-looking approach to the reconciliation purposes
ascribed to Aboriginal rights by the Supreme Court.
• Before Haida Nation, the duty to consult was confined to its position
under the R v Sparrow which involved a “justification analysis” - arising
only if a right could be proven (or the Crown otherwise agreed to
recognize the right).
• After Haida Nation, the duty ensures that Aboriginal rights and interests
are taken into account in government decision-making even if there is
no agreement on the nature or existence of those treaty rights.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• The government argued that it was under no duty to consult
and accommodate prior to final determination of the scope and
content of the right – meaning an established treaty
agreement.
• Prior to proof of the right, government argued that there is only
a broad, common law “duty of fairness”, based on the general
rule that an administrative decision that affects the “rights,
privileges or interests of an individual” triggers application of
the duty of fairness: Cardinal v. Director of Kent Institution and
Baker v. Canada (Minister of Citizenship and Immigration).
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• The SCC sets out a two-part test for determining whether a
duty to consult has been triggered.
• FIRST - The Crown must have real or constructive knowledge
of the potential existence of Aboriginal rights or title … and
• SECOND – contemplate conduct that might adversely affect
it.
• The duty to consult is grounded in the honour of the Crown,
which exists separate of any treaty obligations.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• There is a distinction between knowledge sufficient to trigger a duty to consult and, if
appropriate, accommodate, and the content or scope of the duty in a particular case.
Knowledge of a credible but unproven claim suffices to trigger a duty to consult
and accommodate.
• The content of the duty, however, varies with the circumstances … A dubious or
peripheral claim may attract a mere duty of notice, while a stronger claim may attract
more stringent duties. The law is capable of differentiating between tenuous claims,
claims possessing a strong prima facie case, and established claims. Parties can
assess these matters, and if they cannot agree, tribunals and courts can assist.
Difficulties associated with the absence of proof and definition of claims are addressed
by assigning appropriate content to the duty, not by denying the existence of a duty.
• I conclude that consultation and accommodation before final claims resolution, while
challenging, is not impossible, and indeed is an essential corollary to the honourable
process of reconciliation that s. 35 demands
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
The minimum obligations to consult and where necessary accommodate include:
• Inform itself of the impact of the proposed project on the Aboriginal rights holders in
question, and communicate its findings.
• Provide notice and information regarding potential adverse impacts on Aboriginal rights
holders.
• Consult with the Aboriginal rights holders regarding what studies need to be done to
assess adverse impacts.
• Engage in meaningful consultation, which requires taking into account the Aboriginal rights
holders’ perspectives, creating a clear and transparent process, and being responsive.
• Not act unilaterally.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
The minimum obligations to consult and where necessary accommodate include:
• Consult and provide Aboriginal rights holders with information concerning the proposed project,
decision, or action at each phase before decisions or actions have been taken.
• Engage directly with the potentially affected Aboriginal rights holders.
• Consult and accommodate in good faith.
• Solicit, listen to, and attempt to respond to the concerns of the Aboriginal rights holders.
• Attempt to minimize or mitigate adverse impacts on the Aboriginal rights holders.
• Demonstrate a willingness to make changes based on information that emerges during the
consultation and accommodation process.
The Duty to Consult
Haida Nation v British Columbia (Minister of Forests)
• In addition, the Crown cannot do the following:
• Take a “trust us” approach to information gathering and the assessment of impacts
on First Nations’ rights and interests.
• Limit consultation to an opportunity to blow off steam rather than substantively
addressing First Nations’ concerns.
• Promise to disclose information after-the-fact where that information can be made
available or otherwise waiting to the last and final point in a series of decisions to
consult.
• Limit consultation to site specific impacts.
• Focus on whether a particular process was followed as opposed to whether the
results of consultation are reasonable in light of the degree of potential adverse
impacts to treaty or aboriginal rights, well-being and culture.
• Infringe Aboriginal title rights in a way that would substantially deprive future
generations of the benefit of the land.
The Duty to Consult
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010)
• First SCC case dealing with the duty post-Haida triology of 2004-2005
• A dam and reservoir was built in the 1950s which altered the amount and timing of water in the Nechako River. The
Carrier Sekani claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River.
• The Council was not consulted about the dam project. Energy agreement between BC Hydro and Rio Tinto Alcan.
Excess power generated by the dam is sold by Alcan to BC Hydro. Reversed the flow of the river to generate power
for aluminum production and did not consult First Nations.
• B.C. Hydro went before the BCUC for approval of the EPA. (Alcan is no longer using all of its electricity for aluminum
production—it sells a substantial amount of it into the energy grid.)
• The Carrier Sekani Tribal Council objected on the basis that they had not been consulted.
• The BCUC decided that it did not need to consider the failure to consult, because the EPA would have no physical
impact on water levels in the Nechako: Alcan had said it would always divert the maximum water allowable, and if it
did not sell the power to BC Hydro, it would sell to someone else.
• The Utilities Commission accepted that it had the power to consider the adequacy of consultation with Aboriginal
groups, but found that the consultation issue could not arise as the purchase agreement would not adversely affect
any aboriginal interest.
The Duty to Consult
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
• The British Columbia Court of Appeal reversed the Commission's orders and
remitted the case to the Commission for evidence and argument on whether a
duty to consult the First Nations exists and, if so, whether it had been met.
• The British Columbia Court of Appeal held that the Commission had erred in its
disposition of the consultation question. The Court made no finding as to
whether the duty to consult did in fact arise with respect to the EPA, but that the
Commission erred in not making a full inquiry into whether the duty
arose.
• On appeal from the decision, the Supreme Court of Canada confirmed the
Court of Appeal’s determination that the Commission had the jurisdiction
and obligation to consider the adequacy of any consultation that was
required, but upheld the Commission’s determination that no duty was
triggered by the EPA.
The Duty to Consult
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
• On the issue of what Crown conduct triggers the duty to consult, the Court
confirmed and expanded on the broad language in Haida, holding that the duty
does not arise solely with respect to “government exercises of statutory power”,
but to government action that may adversely impact aboriginal claims or rights.
• Haida does not suggest that the government conduct is limited to exercises of
statutory power.
• Haida spoke of contemplated Crown “conduct.”
• SCC held in this case no duty to consult had been triggered. The case was
about whether to approve an EPA (energy purchase agreement). The EPA
would not change water flow. Also BC Hydro would have a duty to consult
about any future decisions.
The Duty to Consult
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
• The Court provided a series of examples of the sorts of “higher level
decisions” and conduct that may trigger the duty:
• transfer of tree licenses which would have permitted the cutting of
old-growth forest (Haida Nation);
• the approval of a multi-year forest management plan for a large
geographic area (Klahoose First Nation v. Sunshine Coast Forest
District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110);
and
• the establishment of a review process for a major gas pipeline (Dene
Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354,
[2007] 1 C.N.L.R. 1, aff’d 2008 FCA 20, 35 C.E.L.R. (3d) 1)
The Duty to Consult
• Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
• The BC Utilities Commission argued
• It did not need to decide the constitutional question of whether
there was a duty to consult if it determined that was not relevant to
the public interest
• The obligation to determine the adequacy of any required
consultation needed to be set out expressly in the statute in order
to establish the Commission’s authority and duty to do so, in favour
of the “questions of law” test already established.
• The SCC rejected both arguments
The Duty to Consult
Tsilhqot'in Nation v British Columbia 2014 SCC 44
• Province attempted to clear cut lands protected by Aboriginal title
• Must engage in meaningful consultation with the title-holder
before proceeding.
• Court set out a Sparrow-style mechanism by which the Crown
can override Aboriginal title in the public interest:
• the Crown must have carried out consultation and accommodation;
• the Crown's actions must have been supported by a compelling and
substantial objective; and
• the Crown's action must have been consistent with its fiduciary obligation to
the Aboriginal body in question.
The Duty to Consult
Tribunal jurisdiction in relation to the duty to consult and
accommodate
• In Rio Tinto, the Court considered constitutional issues, stating
that “the power to decide questions of law implies a power to
decide constitutional issues that are properly before [the tribunal],
absent a clear demonstration that the legislature intended to
exclude such jurisdiction from the tribunal’s power.”
• While some tribunals have interpreted their statutory mandates as
excluding the authority to review the adequacy of consultation in a
manner consistent with this rule, other tribunals and Courts
demonstrate reluctance to view this issue as within the scope of
their decision-making.
The Duty to Consult
Tribunal jurisdiction in relation to the duty to consult and
accommodate
• However, McLachlin CJC also suggested that:
“[i]f the tribunal structure set up by the legislature is incapable of dealing with a
decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal
peoples affected must seek appropriate remedies in the courts.” (at para 63)
• Relying on Conway, McLachlin CJC then restricted the performance of
the duty to administrative decision makers with appropriate remedial
authorities as defined by statute.
• Remember that administrative decision makers are both subject to
and (potentially) interpreters of the Charter and the constitution more
generally (Conway, Cooper)
The Duty to Consult
Tribunal jurisdiction in relation to the duty to consult and
accommodate – Remedies
• The language in Rio Tinto Alcan describes potentially broad
remedial powers. Where a tribunal finds that Crown consultation
with respect to the matter before it has been inadequate …
• [A] tribunal that has the power to consider the adequacy of consultation, but
does not itself have the power to enter into consultations, should provide
whatever relief it considers appropriate in the circumstances, in accordance
with the remedial powers expressly or impliedly conferred upon it by
statute. The goal is to protect Aboriginal rights and interests and to promote
the reconciliation of interests called for in Haida Nation.” (para. 61,
emphasis added)
The Duty to Consult
What is the scope or “content” of the duty?
• To answer this, the court has drawn heavily on admin law concepts.
• The content of the duty is on a “spectrum” and contextual (similar to Baker)
• On one end of the spectrum are cases where the claim to the title is weak,
aboriginal right limited and potential infringement minor -> in such a case
the crown’s duty may be to give notice, disclosure and discuss issues.
• On the other end of the spectrum are cases where a strong prima facie
case exists, the right and potential infringement is high and potential
damage is high – in such a case deep consultation may be required.
The Duty to Consult
What is the scope or “content” of the duty?
• The two most important factors to consider when determining the
scope / content of the duty to consult are:
1. The strength of the Aboriginal rights or title claim – a
preliminary assessment of the existence of a right or title; and
2. The seriousness or level of adverse impact on the right or title
claimed.
• For Aboriginal rights holders who possess treaty rights or
recognized Aboriginal rights, the first factor should not be an
issue.
The Duty to Consult
Content of the duty – lower end of the spectrum
• In Little Salmon/Carmacks (SCC 2010) - the duty was triggered by an
application for an agricultural land grant that affected one third of one percent of
a Little Salmon/Carmacks First Nation member’s trapline.
• In the Court’s assessment, this was a small impact meriting consultation
obligations at the lower end of the spectrum.
• Although the First Nation argued that its interests had not been taken seriously
and required accommodation, the Court found that the duty to consult was
satisfied by notice of the decision and opportunities to state its concerns to the
Yukon government decision makers involved in the decision.
• The content of consultation in Little Salmon was no greater than that which
would be provided by the application of standard principles of administrative law.
The Duty to Consult
Content of the duty – lower end of the spectrum
• Little Salmon/Carmacks (SCC 2010)
• SCC found that the duty of consultation was discharged.
• Little Salmon/Carmacks acknowledges that it received appropriate
notice and information. The Little Salmon/Carmacks objections were
made in writing and they were dealt with at a meeting at which Little
Salmon/Carmacks was entitled to be present (but failed to attend).
• Both Little Salmon/Carmacks’ objections and the response of those
who attended the meeting were before the Director when the decision
was made.
• Neither the honour of the Crown nor the duty to consult required more.
The Duty to Consult
How is the Duty to Consult different from procedural fairness?
• The rights looks similar – notice, disclosure, provide submissions
etc
• 2 key differences:
• The duty involves not only a procedural guarantee but also a substantive
constraint on the crown – accommodation not just consultation.
• The duty may also include the requirement to provide indigenous
communities with the capacity to participate – not clear how far this positive
duty goes.
The Duty to Consult
The Requirement of Accommodation
• The potential requirement of accommodation has generally
become associated with the deeper end of the consultation
spectrum.
• Haida Nation was clear that accommodation is only required
where “appropriate,” as determined through the spectrum
analysis.
• The parameters of accommodation—when it is required and
what constitutes adequate accommodation—remain one of the
least developed areas in the duty to consult jurisprudence.
The Duty to Consult
Recent Trends
Mikisew Cree First Nation v. Canada (Governor General in Council)
• First Nation argued it should have been consulted by the government before it drafted legislation
and before it was tabled in Parliament because the legislation reduced government oversight of
lands and waters and thus threatened established right to hunt, trap and fish on their traditional
territory.
• These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and were enshrined
as constitutional rights after the passage of the Constitution Act of 1982.
• The Mikisew asked the court to extend existing duty to consult obligations — which, to this point,
have only applied to executive actions taken by cabinet and regulators — to the policymaking
process. They argued that such consultation efforts should be made before any bill that could
affect their rights is introduced in Parliament.
• Ottawa argued that approach would threaten parliamentary supremacy and undermine the role of
Parliament — and the separation of legislative, executive and judicial powers — by
subjecting laws that have not yet passed to judicial review.
The Duty to Consult
Mikisew Cree First Nation v. Canada (Governor General in
Council)
• The majority of the court ruled there is no binding
constitutional duty to consult before a law is passed.
Link: Supreme Court rules Ottawa has no duty to consult with Indigenou
s people before drafting laws
• Canada's lawmakers do not have a duty to consult with Indigenous
people before introducing legislation that might affect constitutionally
protected Indigenous and treaty rights.
• News Release
The Duty to Consult
• The Crown typically carries out its obligation to consult with potentially
affected First Nations through other means — through the National Energy
Board, for example, when a natural resources project could infringe on
protected Indigenous rights, or through a Crown consultation team.
• For example, before approving the Trans Mountain pipeline expansion,
cabinet had a constitutional obligation to consult with Indigenous people
along the project's route. It carried out this work through a Crown
consultation team.
• The Federal Court of Appeal ultimately found those efforts were insufficient
and quashed the project's cabinet approvals.
• News Release
The Trans Mountain Pipeline
• The Trans Mountain Pipeline was built in 1953 and
connects the Alberta oil sands to British Columbia and
provides approximately 90% of the fuel used in BC.
• Construction of the pipeline system was a monumental
engineering feat by any standard. It crosses some of the
most rugged, mountainous terrain in the world as well as
environmentally sensitive wetlands, waterways and
parkland.
• It is the only pipeline to run between the two areas.
The Trans Mountain Pipeline
The Trans Mountain Pipeline
Trans Mountain Pipeline Timeline
• Feb. 21, 2012: Kinder Morgan wants to expand the Trans Mountain pipeline after
receiving support from oil shippers and will begin public consultations.
• Dec. 16, 2013: An application is made to the National Energy Board (NEB) to
expand the Trans Mountain pipeline. Construction is proposed to begin in 2017,
with the aim of having oil flow through the expansion by December 2019.
• May 2016: Ottawa appoints a three-member panel to conduct an environmental
review of the Trans Mountain expansion project. The NEB recommends approval of
the pipeline, subject to 157 conditions, concluding that it is in the public interest.
• Nov. 29, 2016: Prime Minister Justin Trudeau sanctions the Trans Mountain
expansion, part of a sweeping announcement that also saw approval of Enbridge's
Line 3 pipeline replacement but the end of its Northern Gateway project.
• May 15, 2017: The Federal Court of Appeal grants Notley's government intervener
status in a lawsuit filed by municipalities and First Nations against the project.
Trans Mountain Pipeline Timeline
• May 29, 2018: Federal government announces deal to buy
the pipeline and expansion project from Kinder Morgan
Canada for $4.5 billion.
• Aug. 30, 2018: The Federal Court of Appeal overturns the
Trudeau government's approval of the pipeline
expansion. In a unanimous decision by a panel of three
judges, the court says the NEB's review of the project was so
flawed that the federal government could not rely on it as a
basis for its decision to approve the expansion.
• [Link]
al-of-trans-mountain-1.4073752
The Federal Court of Appeal Decision
• The Federal Court of Appeal quashed the federal government’s approval of
the Trans Mountain expansion project, after concluding that Prime Minister
Justin Trudeau’s cabinet made its decision without considering all
evidence and failing in its legal duty to consult First Nations.
• This was the first major court defeat for the project, requiring the government
to ask the federal energy regulator or its successor to redo a federal
environmental evaluation and correct a “critical” mistake it made to ignore the
consequences of increased oil tanker traffic off the coast of British Columbia.
• It was a unanimous decision by a three member panel that heard the case.
Required the Trudeau government to restart its consultations with First
Nations about the project, before construction can proceed.
• The ruling confirms longstanding criticism from affected First Nations that the
Trudeau government took a "paternalistic," "unrealistic," and "inadequate"
approach to consulting them, failing in its legal duty under the Constitution.
Trans Mountain Pipeline Timeline
• Sept. 26, 2018: The NEB assigns a new panel to run the hearings and sets deadlines for
comments.
• Oct. 3, 2018: Natural Resources Minister Amarjeet Sohi hires former Supreme Court of
Canada Justice Frank Iacobucci to oversee a new round of Indigenous consultations. No
deadline is set for the completion of the process.
• Feb. 22, 2019: The NEB recommends to cabinet that it approve the project again, subject
to 16 new conditions, and says although an oil spill could be significant, the project
provides considerable benefits and there are measures that can be taken to minimize the
effects. The federal cabinet has 90 days — until May 22 — to respond with a decision.
• June 18, 2019: Federal Liberal government approves the expansion a second time,
requiring that all federal revenue it generates be reinvested in clean energy and green
technology, including an estimated $500 million a year in new annual corporate tax
revenues and the proceeds from the sale of the entire expanded pipeline back to the
private sector.
Trans Mountain Pipeline Timeline
• There is another challenge to the Federal Court
• Four First Nations from British Columbia filed court challenges
after the federal government approved the project a second time.
• Again the specific focus was on the government’s consultation
with the First Nations – this time the second roud between
August 2018 and June 2019.
• February 2020 – Federal Court of Appeal – unanimous 3
member panel found that Ottawa its obligations for consultation
before it reapproved the Trans Mountain pipeline expansion last
year.
The Trans Mountain Pipeline
• [Link]
xpansion-indigenous-federal-court/
• The government's second approval of the pipeline in June
2019 was not merely a ratification of the earlier approval,
the court found, but came "directly from the renewed
consultation."
• The case law is clear that although Indigenous peoples
can assert their uncompromising opposition to a project,
they cannot tactically use the consultation process as a
means to try to veto it
The Trans Mountain Pipeline