Tsleil-Waututh and Transmountain: A Second Crude Awakening for Canada

Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153, involving the TransMountain pipeline, provokes a strong sense of deja vu. A pipeline connecting the oil sands to the Pacific. A challenge to the Federal Court of Appeal by a group of Indigenous and non-Indigenous organizations. Justice Dawson writing that Canada’s consultation “fell well short of the mark”. Hasn’t this happened before? The answer is yes, two years ago in Gitxaala Nation v Canada (Attorney General), 2016 FCA 187, where the Court quashed approvals for the Northern Gateway Pipeline based on Canada’s failure to meet the duty to consult and accommodate Indigenous peoples.

The Crown’s approach to consultation in Tsleil-Waututh was essentially the same as in Gitxaala: Canada deferred consultation on substantive matters (i.e. the merits of the application) to “Phase III,” a period of several months after the National Energy Board released its report, and before the Governor in Council (i.e. the federal cabinet) decided on the fate of the project. This was the stage where consultation had gone off the rails in Gitxaala.

The Gitxaala decision was released in June 2016, midway through Phase III. Canada responded to the decision by adding to the process. It extended Phase III by four months (the exact number suggested in Gitxaala). Then Canada circulated a second draft of the Crown Consultation Report to be put before cabinet. And it undertook to create an Indigenous Advisory and Monitoring Committee.^[1] However, in Tsleil-Waututh, it was found to have made the exact same mistake: it failed to “engage in a considered, meaningful two-way dialogue” with the Applicants.^[2] Crown representatives viewed themselves as nothing more than “note-takers” whose job was to accurately describe Indigenous peoples’ concerns in the Crown Consultation Report.^[3] They refused to second-guess the NEB’s findings despite the numerous flaws alleged by the Applicants.^[4] Furthermore, they claimed that the Governor in Council had no power to impose conditions on an approval despite the fact that Gitxaala had explicitly held that he did.^[5]

Tsleil-Waututh will provoke frustration and despair in certain quarters. Many will feel validated in the belief that decisions like this make it impossible for the Crown to know “how much consultation is enough”? But this kind of thinking is exactly what got the Crown in trouble both times. Meaningful consultation is not about how much time a decision-making process takes or how many meetings there were. This was the view espoused by Justice Ryer, the dissenting Justice in Gitxaala.^[6]

The regulatory reviews in Gitxaala and Tsleil-Waututh were massive undertakings spanning many years and generating tens if not hundreds of thousands of pages of evidence. To its great credit, in both decisions the Court looked past the sheer bulk of the process at whether the Crown actually attempted to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”^[7] In the Court’s opinion both times, this could be done within a relatively short period of time.^[8]  In other words, the question is not how much, but how meaningful.

This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. and is available at https://www.thelawyersdaily.ca/articles/7250.

^[1] Tsleil-Waututh at para 551.

^[2] Tsleil-Waututh at para 558. In Gitxaala, the Court held that Canada had failed to “engage, dialogue and grapple with the concerns expressed to it in good faith by all of the applicant/appellant First Nations” (at para 279).

^[3] Tsleil-Waututh at paras 562, 575-601. In Gitxaala, the Court held that “Missing was someone from Canada’s side empowered to do more than take notes, someone able to respond meaningfully at some point” (at para 279).

^[4] Tsleil-Waututh at paras 562, 602-628. In Gitxaala, the Court wrote “Canada’s representatives, including Jim Clarke, repeatedly stated that they had to accept the findings of the Joint Review Panel as set out in its Report. This was not so. Phase IV in part was an opportunity to address errors and omissions in the Report on subjects of vital concern to Aboriginal Peoples. The consequence of Canada’s position was to severely limit its ability to consult meaningfully on accommodation measures” (at para 274).

^[5] Tsleil-Waututh at paras 562, 629-637; Gitxaala at para 168.

^[6] Gitxaala at paras 352-354.

^[7] Tsleil-Waututh at paras 6, 763; Gitxaala at paras 279.

^[8] Tsleil-Waututh at para 763; Gitxaala at para 329.