Gitxaala Nation et al. v. Canada et al., (2016) 485 N.R. 258 (FCA)

• Judge: Dawson, Stratas and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 23, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 485 N.R. 258 (FCA);2016 FCA 187

Gitxaala Nation v. Can. (2016), 485 N.R. 258 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.R. TBEd. JL.001

Gitxaala Nation, Gitga'at First Nation, Haisla Nation, The Council of the Haida Nation and Peter Lantin suing on his own behalf and on behalf of all citizens of the Haida Nation, Kitasoo Xai'Xais Band Council on behalf of all members of the Kitasoo Xai'Xais Nation and Heiltsuk Tribal Council on behalf of all members of the Heiltsuk Nation, Martin Louie, on his own behalf, and on behalf of Nadleh Whut'en and on behalf of the Nadleh Whut'en Band, Fred Sam, on his own behalf, on behalf of all Nak'azdli Whut'en, and on behalf of the Nak'azdli Band, Unifor, Forestethics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation, Federation of British Columbia Naturalists carrying on business as BC Nature (applicants and appellants) v. Her Majesty the Queen, Attorney General of Canada, Minister of the Environment, Northern Gateway Pipelines Inc., Northern Gateway Pipelines Limited Partnership and National Energy Board (respondents) and The Attorney General of British Columbia, Amnesty International and the Canadian Association of Petroleum Producers (interveners)

(A-437-14 (Lead File); A-56-14; A-59-14; A-63-14; A-64-14; A-67-14; A-439-14; A-440-14; A-442-14; A-443-14; A-445-14; A-446-14; A-447-14; A-448-14; A-514-14; A-517-14; A-520-14; A-522-14; 2016 FCA 187; 2016 CAF 187)

Indexed As: Gitxaala Nation et al. v. Canada et al.

Federal Court of Appeal

Dawson, Stratas and Ryer, JJ.A.

June 23, 2016.

Summary:

This case involved the approval process for the Northern Gateway Pipelines project. There were hearings before a Joint Review Panel acting under the Canadian Environmental Assessment Act, which was participated in by various government departments, aboriginal groups affected by the project, and various intervenor conservation groups. The Panel's report recommended issuing Certificates of Public Convenience and Necessity approving the project subject to conditions. By Order in Council, the Governor in Council ordered the National Energy Board to issue the Certificates subject to conditions. Various aboriginal groups significantly affected by the project, a union representing oil workers and fishermen, and environmental and conservation groups, brought nine applications for judicial review of the Order in Council and five applications for judicial review of the report. There were also four appeals of the Certificates issued by the Board. The proceedings were consolidated.

The Federal Court of Appeal held that the Order in Council was acceptable and defensible on the facts and the law and was reasonable. However, the Order in Council was made without the Crown complying with its duty to consult the aboriginal peoples involved. While the Crown exercised good faith and designed a good framework to fulfil its duty to consult, it fell short in executing that duty respecting one critical part of that framework (Phase IV - the post-report phase). The court quashed the Order in Council and the Certificates issued and remitted the matter to the Governor in Council for redetermination.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Federal Court of Appeal held that the standard of review for discretionary decisions by the Governor in Council, founded upon the widest considerations of policy and public interest, was reasonableness - See paragraph 145.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - This case involved the approval process for the Northern Gateway Pipelines project - There were hearings before a Joint Review Panel acting under the Canadian Environmental Assessment Act, which was participated in by various government departments, aboriginal groups affected by the project, and various intervenor conservation groups - The Panel's report recommended issuing Certificates of Public Convenience and Necessity approving the project subject to conditions - By Order in Council, the Governor in Council ordered the National Energy Board to issue the Certificates subject to conditions - Various aboriginal groups significantly affected by the project, a union representing oil workers and fishermen, and environmental and conservation groups, brought nine applications for judicial review of the Order in Council and five applications for judicial review of the report - There were also four appeals of the Certificates issued by the Board - The admissibility of portions of certain affidavits were challenged - The Federal Court of Appeal held that under rule 81 affidavits in support of proceedings were to be "confined to facts within the deponent's personal knowledge" - To the extent that the challenged affidavits contained submissions that should appear in a memorandum of fact and law, and contained argument, the court stated that it would disregard those portions - See paragraphs 88 to 91.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - This case involved the approval process for the Northern Gateway Pipelines project - There were hearings before a Joint Review Panel acting under the Canadian Environmental Assessment Act, which was participated in by various government departments, aboriginal groups affected by the project, and various intervenor conservation groups - The Panel's report recommended issuing Certificates of Public Convenience and Necessity approving the project subject to conditions - By Order in Council, the Governor in Council ordered the National Energy Board to issue the Certificates subject to conditions - Various aboriginal groups significantly affected by the project, a union representing oil workers and fishermen, and environmental and conservation groups, brought nine applications for judicial review of the Order in Council and five applications for judicial review of the report - There were also four appeals of the Certificates issued by the Board - The proponent of the project challenged the standing of the union and the environmental and conservation groups to seek judicial review - The Federal Court of Appeal held that the parties had direct standing to challenge an administrative decision if the decision affected their "legal rights, legal obligations upon [them], or prejudicially affects [them] in some way" - The court noted that the parties participated as intervenors in the hearing and their legal or practical interests was sufficient to give them direct standing - See paragraphs 82 to 84.

Crown - Topic 545

Orders-in-council - Judicial review - [See Administrative Law - Topic 3202 and Mines and Minerals - Topic 8545 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - This case involved the approval process for the Northern Gateway Pipelines project - There were hearings before a Joint Review Panel acting under the Canadian Environmental Assessment Act, which was participated in by various government departments, aboriginal groups affected by the project, and various intervenor conservation and environmental groups - The Panel's report recommended issuing Certificates of Public Convenience and Necessity approving the project subject to conditions - By Order in Council, the Governor in Council ordered the National Energy Board to issue the Certificates subject to conditions - Various aboriginal groups significantly affected by the project (and others) brought nine applications for judicial review of the Order in Council and five applications for judicial review of the report - There were also four appeals of the Certificates issued by the Board - The proceedings were consolidated - The Federal Court of Appeal held that the Order in Council was acceptable and defensible on the facts and the law, and was reasonable - However, the Order in Council was made without the Crown complying with its duty to consult the aboriginal peoples involved - While the Crown exercised good faith and designed a good framework to fulfil its duty to consult, it fell short in executing that duty respecting one critical part of that framework (Phase IV - the post-report phase) - The court stated that "Canada failed in Phase IV to engage, dialogue and grapple with the concerns expressed to it in good faith by all of ... the First Nations. Missing was any indication of an intention to amend or supplement the conditions imposed by the Joint Review Panel, to correct any errors or omissions in its Report, or to provide meaningful feedback in response to the material concerns raised. Missing was a real and sustained effort to pursue meaningful two-way dialogue. ... the parties were entitled to much more in the nature of information, consideration and explanation from Canada regarding the specific and legitimate concerns they put to Canada." - The duty to consult was also frustrated by the Crown's failure to disclose necessary information it had about the affected First Nation's strength of claims to rights and title - The court quashed the Order in Council and the Certificates issued and remitted the matter to the Governor in Council for reconsideration - See paragraphs 159 to 332.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court of Appeal stated that "The duty to consult is grounded in the honour of the Crown. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing ... The duty arises when the Crown has actual or constructive knowledge of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title ... The extent or content of the duty of consultation is fact specific. The depth or richness of the required consultation increases with the strength of the prima facie Aboriginal claim and the seriousness of the potentially adverse effect upon the claimed right or title ... When the claim to title is weak, the Aboriginal interest is limited or the potential infringement is minor, the duty of consultation lies at the low end of the consultation spectrum. In such a case, the Crown may be required only to give notice of the contemplated conduct, disclose relevant information and discuss any issues raised in response to the notice ... When a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum. While the precise requirements will vary with the circumstances, in this type of a case a deep consultative process might entail: the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Aboriginal concerns were considered and how those concerns were factored into the decision" - See paragraphs 171 to 174.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court of Appeal stated that "When the Crown relies on a regulatory or environmental assessment process to fulfil the duty to consult, such reliance is not delegation of the Crown's duty. Rather, it is a means by which the Crown can be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated. ... The consultation process does not dictate a particular substantive outcome. Thus, the consultation process does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim. Nor does consultation equate to a duty to agree; rather, what is required is a commitment to a meaningful process of consultation. Put another way, perfect satisfaction is not required. The question to be answered is whether the regulatory scheme, when viewed as a whole, accommodates the Aboriginal right in question." - See paragraphs 178 to 179.

Mines and Minerals - Topic 8545

Oil and gas - Pipelines - Construction and operation of - Licences and permits (incl. approval process) - This case involved the approval process for the Northern Gateway Pipelines project - There were hearings before a Joint Review Panel acting under the Canadian Environmental Assessment Act, which was participated in by various government departments, aboriginal groups affected by the project, and various intervenor conservation groups - The Panel recommended issuing Certificates of Public Convenience and Necessity approving the project subject to conditions - By Order in Council, the Governor in Council ordered the National Energy Board to issue the Certificates subject to conditions - Various aboriginal groups significantly affected by the project, a union representing oil workers and fishermen, and environmental and conservation groups, brought, inter alia, nine applications for judicial review of the Order in Council - The Federal Court of Appeal held that the Governor in Council's decision was reasonable - The court stated that "the Governor in Council is entitled to a very broad margin of appreciation in making its discretionary decision upon the widest considerations of policy and public interest under sections 53 and 54 of the National Energy Board Act . ... the Governor in Council's discretionary decision was based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective or indistinct criteria and shaped by its view of economics, cultural considerations, environmental considerations, and the broader public interest. ... The Governor in Council was entitled to assess the sufficiency of the information and recommendations it had received, balance all the considerations - economic, cultural, environmental and otherwise - and come to the conclusions it did. To rule otherwise would be to second-guess the Governor in Council's appreciation of the facts, its choice of policy, its access to scientific expertise and its evaluation and weighing of competing public interest considerations, matters very much outside of the ken of the courts" - See paragraphs 1 to 157.

Pollution Control - Topic 1011

Licensing or approval - General - Cabinet discretion - [See Administrative Law - Topic 3202 ].

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review - [See Mines and Minerals - Topic 8545 ].

Counsel:

Robert J.M. Janes, Elin R.S. Sigurdson, Virginia V. Mathers and Christopher J. Evans, for the applicant/appellant, Gitxaala Nation;

Michael Lee Ross, Grace A. Jackson and Benjamin Ralston, for the applicant/appellant, Gitga'at First Nation;

Jennifer Griffith, Allan Donovan and Mary Anne Vallianatos, for the applicant/appellant, Haisla Nation;

Terri-Lynn Williams-Davidson, Michael Jackson, David Paterson and Elizabeth Bulbrook (articled student), for the applicants/appellants, The Council of the Haida Nation and Peter Lantin, suing on his own behalf and on behalf of all citizens of the Haida Nation;

Lisa Fong and Julia Hincks, for the applicants/appellants, Kitasoo Xai'Xais Band Council and Heiltsuk Tribal Council;

Cheryl Sharvit and Gavin Smith, for the applicants/appellants, Martin Louie, on his own behalf, and on behalf of Nadleh Whut'en and on behalf of the Nadleh Whut'en Band, Fred Sam, on his own behalf, and on behalf of all Nak'azdli Whut'en, and on behalf of the Nak'azdli Band;

Steven Shrybman, for the applicant/appellant, Unifor;

Barry Robinson and Karen Campbell, for the applicants/appellants, Forestethics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation;

Chris D. Tollefson and Anthony Ho, for the applicant/appellant, Federation of BC Naturalists, carrying on business as BC Nature;

Jan Brongers, Ken Manning, Dayna Anderson, Liliane Bantourakis and Sarah Bird, for the respondents, Her Majesty the Queen, Attorney General of Canada and the Minister of the Environment;

E. David D. Tevender, Q.C., Bernard J. Roth and Laura K. Estep, for the respondents, Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership;

Andrew R. Hudson, for the respondent, National Energy Board;

Angela Cousins, for the intervener, Attorney General of British Columbia;

Colleen Bauman and Justin Safayeni, for the intervener, Amnesty International;

Lewis L. Manning, Keith B. Bergner and Toby Kruger, for the intervener, Canadian Association of Petroleum Producers.

Solicitors of Record:

Janes Freedman Kyle Law Corporation, Vancouver, British Columbia, for the applicant/appellant, Gitxaala Nation;

Peter Grant & Associates, Vancouver, British Columbia, for the applicant/appellant, Gitga'at First Nation;

Donovan & Company, for the applicant/appellant, Haisla Nation;

White Raven Law Corporation, Surrey, British Columbia, for the applicants/appellants, The Council of the Haida Nation and Peter Lantin, suing on his own behalf and on behalf of all citizens of the Haida Nation;

Ng Ariss Fong, Vancouver, British Columbia, for the applicants/appellants, Kitasoo Xai'Xais Band Council and Heiltsuk Tribal Council;

Mandell Pinder LLP, Vancouver, British Columbia, for the applicants/appellants, Martin Louie, on his own behalf, and on behalf of Nadleh Whut'en and on behalf of the Nadleh Whut'en Band, Fred Sam, on his own behalf, and on behalf of all Nak'azdli Whut'en, and on behalf of the Nak'azdli Band;

Goldblatt Partners LLP, Toronto, Ontario, for the applicant/appellant, Unifor;

Ecojustice, Calgary, Alberta, for the applicants/appellants, Forestethics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation;

Environmental Law Centre, University of Victoria, Victoria, British Columbia, for the applicant/appellant, Federation of BC Naturalists, carrying on business as BC Nature;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Her Majesty the Queen, Attorney General of Canada and the Minister of the Environment;

Dentons Canada LLP, Calgary, Alberta, for the respondents, Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership;

National Energy Board, Calgary, Alberta, for the respondent, National Energy Board;

Ministry of Justice, Victoria, British Columbia, for the intervener, Attorney General of British Columbia;

Sack Goldblatt Mitchell LLP, Ottawa, Ontario and Stockwoods LLP, Toronto, Ontario, for the intervener, Amnesty International;

Lawson Lundell LLP, Vancouver, British Columbia, for the intervener, Canadian Association of Petroleum Producers.

These applications and appeals were heard on October 1-2 and 5-8, 2015, at Vancouver, B.C., before Dawson, Stratas and Ryer, JJ.A., of the Federal Court of Appeal.

On June 23, 2016, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Dawson and Stratas, JJ.A. - see paragraphs 1 to 346;

Ryer, J.A., dissenting - see paragraphs 347 to 364.