Federal Appeal

Aboriginal Peoples

Band’s appeal under the Canadian Environmental Assessment Act, 2012 was dismissed

National Energy Board was engaged in review of pipeline project. Aboriginal band was intervenor in proceedings. Project was found to be ready to proceed to assessment, was found to be designated project to be assessed under Canadian Environmental Assessment Act, 2012, and order put in place for assessment. Report was issued stating that project should go forward on conditions, and further round of consultation was to take place. Band claimed that board had duty to consult aboriginal persons which was not met, that board had duty under s. 18 of Act to collaborate with band as jurisdiction, that duty of fairness was breached and that consideration of marine shipping activities was improperly not considered. Band appealed orders regarding assessment. Appeal dismissed. Questions regarding duty to consult had not been raised at hearing and it was improper to deal with them on appeal. Issues could have been raised at trial and would also be addressed by governor in council. Much of evidence before court had not been before Board. Hearing order was not final and was subject to amendment. Band had opportunity to respond to completeness decision which other intervenors had used, while band did not follow proper procedure. Board made offer to consult with all parties considered jurisdictions, and band failed to provide material to make jurisdictional determination. Position that board had duty to consult was not raised until midway through proceedings. Putting issue before board would not have delayed matter. Premature for Crown to address issues when consultation was ongoing and governor in council had not made determination.

Tsleil-Wautuh Nation v. National Energy Board (Sep. 6, 2016, F.C.A., Johanne Gauthier J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A., A-386-14) 270 A.C.W.S. (3d) 226.

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