Federal Appeal

Environmental Law


Canada did not fulfill obligation to consult aboriginal peoples to reasonable satisfaction

Applicants were several aboriginal bands and others who opposed pipeline development Joint Review Panel found that project was in the public interest and recommended that it go forward subject to 209 conditions. Two certificates of public convenience and necessity were issued. Several appeals and applications for judicial review regarding various aspects of proceedings were brought, and were consolidated into single application. Application granted. Order in council was reasonable and defensible, however, Canada did not fulfill its obligation to consult aboriginal peoples to standard of reasonable satisfaction. Good faith was shown and proper framework was put in place for consultation but consultation aspect of process fell short. Order in council was quashed as well as certificates that were issued under them, and matter remitted. Governor in council’s determination was reasonable in light of administrative law principles. Government did not prejudge result of process, and bias on part of governor in council was not shown. Framework of consultation process was not unilaterally imposed on first nations. Level of funding provided constrained participation in joint review process, but there was no evidence that funding available was so inadequate it made process unreasonable. Canada fell well short of its deep duty to make reasonable efforts to inform and consult. Canada assessed strength of claim of certain bands, but acted improperly in failing to share assessment with affected first nations. Not all items of interest were discussed in consultation process. During consultation meetings, aboriginal groups were repeatedly told that Canada’s representatives were working on assumption that governor in council needed to make its decision by particular date, and were tasked with information gathering, and were not authorized to make decisions. Requirement to give adequate reasons was not shown to be met.

Gitxaala Nation v. R. (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and C. Michael Ryer J.A., A-437-14, 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) 269 A.C.W.S. (3d) 85.

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