The Federal Court dismissed the Gitxaala Nation’s (“Gitxaala”) application seeking prerogative relief against the Minister of Transport, Infrastructure and Communities (Minister) (“Crown”) and the Northern Gateway Pipelines Limited Partnership (collectively “Respondents”) in connection with the ongoing National Energy Board (NEB) regulatory review of the Northern Gateway Pipeline Project (the “Project”). Gitxaala alleged that the Crown’s duty to consult had been breached because Gitxaala was excluded from participating in a federal interdepartmental review of marine safety factors relevant to the Project) known as a TERMPOL Review (“TRP”). Gitxaala sought an order to quash the TRP report and to reopen the consultation process. The Federal Court denied the request.

The Respondents claimed that there is a Joint Review Panel (“JRP”) established to implement the consultation process which will give Gitxaala ample opportunity to be heard. The JRP process is a primary stage for consultation followed by an end-stage comprehensive consultation with interested First Nations. In light of the JRP, the Crown submitted that it would be premature for the Court to interfere at this stage.

The Federal Court agreed that the people of Gitxaala would be significantly affected if the Project went ahead since most of their reserves are adjacent to the proposed marine shipping routes. The Project would support the export and import of millions of tonnes of crude oil and condensate through pipelines running from Bruderheim, Alberta to Kitimat, British Columbia. The Project also includes the construction of a storage and marine terminal to facilitate the loading and unloading of marine tankers.

Gitxaala’s evidence showed that they have occupied the lands and utilized the marine resources in the intercoastal area proposed for the Project for thousands of years. They are concerned that the Project may involve the encroachment of oil tankers into areas of traditional use creating potential pollution risks.

Gitxaala argued that it was entitled to an early consultation so that the deficiencies identified in the TRP report could be addressed and remedied. Further, they argued that the consultation process is deficient because of the Crown’s failure to invite its participation in the Gateway TRP Committee.  It alleged that the problem cannot be remedied by its subsequent engagement in the JRP process or later consultations. Gitxaala maintained that the solution would be to reopen the TRP process to allow it to make submissions.

The TRP process is a non-statutory and voluntary technical review carried out by various federal departments. The mandate of a TRP is described in the TRP Code which states that a TRP report is non-binding and is not a substitute for any applicable legislative requirements or a statement of government policy. The Project TRP was initiated in 2004 and the TRP Committee issued a report in February 2012 which concluded that there are no technical barriers to the Project that cannot be effectively managed. This report, along with supporting evidence, forms part of the JRP record.

Gitxaala communicated its desire to participate in the TRP process in July 2011. In October 2011, the Minister of Transport advised Gitxaala that its concerns should be addressed during the JRP process. Gitxaala was not invited to participate in the TRP process.

The Project requires a federal certificate of present and future public convenience and necessity. The JRP process was put in place to assess these considerations. In 2009, the Canadian Environmental Assessment Agency (“CEAA”) issued a detailed statement of the government’s approach to First Nations consultation for the Project and a Scope of Factors Document that offered guidance regarding the environmental effects of the Project with specific reference to Aboriginal Rights and Interests.

Gitxaala has been fully engaged in the JRP process as a formal Intervenor and has received federal funding to that end. As an Intervenor, Gitxaala has the right to challenge the evidence submitted by other parties and to present its own case in favour of the preservation of its interests and rights. The final hearings for the JRP process are scheduled to commence in April 2013.

The issue before the Federal Court was whether the process of consultation is deficient. Gitxaala maintained that the process of consultation is deficient because of the Crown’s failure to invite its participation in the work of the Gateway TRP Committee. Gitxaala also asserted that the deficiency occurred after the Crown’s duty to consult had been engaged and that the problem cannot be remedied by its subsequent engagement in the JRP process or later when an overarching consultation with the federal government is planned. Gitxaala’s position was that the solution is to reopen the TRP process to allow it to make submissions. Gitxaala acknowledged that such an intervention would not necessarily lead to changes to the TRP report but it argues that it is legally entitled to make its case before the TRP Committee. The Respondents acknowledged that the Gateway Project has engaged the Crown’s duty of deep consultation with Gitxaala and with the other First Nations whose interests stand to be similarly affected. Therefore, Barnes J. stated, “[w]hat remains in contention is whether the proposed framework for consultation is legally sufficient.”

Gitxaala argued that the standard of review for the existence and scope of the duty to consult was a question of law that was reviewable on the standard of correctness. The Respondents argued that the appropriate standard of review was reasonableness. The Federal Court relied on Yellowknives Dene First Nation v. Canada, [2010] FCJ no 1412, to determine that the issue of whether the consultation framework was a sufficient platform for consultation was a question of mixed law and fact that was reviewable on the standard of reasonableness.

Gitxaala relied on the recognized principle that meaningful consultation must be timely and the duty to consult may arise in advance of a preliminary decision if a clear momentum to move forward would arise. Gitxaala’s application was based on the assumption that the JRP will not fulfill its legal obligations nor keep an open mind about errors or deficiencies in the TRP report. The Federal Court disagreed with this assumption. The Crown has acknowledged its consultation obligation to all Aboriginal groups that may be affected, consulted the affected First Nations before establishing the consultation framework, provided federal funding for effective intervention, and committed to a final consultation with Aboriginal groups. Barnes J. stated:

It seems to me that the JRP process is sufficiently robust that any weaknesses in the TRP report can be addressed by Gitxaala and, where appropriate, accommodated by the JRP or later by the Government of Canada. I do not accept Gitxaala’s argument that the TRP findings and recommendations are so compelling and indispensable to the final outcome that any challenge to them cannot be effectively mounted… The weight attributed to the TRP findings and recommendations is expressly limited by the TRP Code and if mistakes or omissions have occurred Gitxaala is well placed to point them out and to demand corrections. The TRP report is, after-all, mainly a technical analysis based on objectively verifiable data.  If the TRP Committee has ignored or overlooked material evidence, it should not be difficult to effectively impeach its findings.

Barnes J. held that although the process that has been followed may not be perfect, it represents a reasonable way to address First Nations’ concerns. It accepted that it would be premature to intervene in this process before reaching a conclusion. Even if there was a breach of the duty to consult in the context of the TRP review, there was no basis for the Court to conclude that the breach could not be remedied by the JRP process or later by the Crown. Barnes J. stated:

“As the Supreme Court of Canada noted in Haida Nation, …, there are a variety of remedies available for a failure to consult not the least of which is the opportunity at later stages in the process to engage in meaningful dialogue and, where necessary, to accommodate First Nations concerns. The effective end-point in the process of consultation has not been reached and there is no way of knowing today how effective First Nations will be in achieving their desired outcome. Gitxaala’s additional concern that the Government of Canada’s commitment to a final overarching consultation is too constrained to be meaningful remains to be seen.  If the process proves to be deficient or perfunctory, Gitxaala and other affected First Nations will have the opportunity to be heard again.”

Therefore, the Federal Court dismissed the application with no order for costs

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61578/index.do

Other Author

Isabella Mentina

Expertise

Aboriginal Law