Aboriginal and Indigenous Law – Indigenous rights to natural resources and environmental protections – Rights to protection and consultation
In 2016, Governor in Council decided to approve Trans Mountain Pipeline Expansion Project (“project”). Several Indigenous Bands successfully challenged this approval and it was found that Crown had failed to fulfill its duty to consult with Indigenous peoples. Reconsideration hearing took place in front of National Energy Board (NEB) and Governor in Council approved project for second time. Several parties sought to challenge second approval on environmental grounds and on grounds of Crown's alleged continued failure to fulfill its duty to consult, but only four applicants continued with application. Parties brought application for judicial review under s. 55 of National Energy Board Act, challenging second approval of Trans Mountain Pipeline Expansion Project. Application dismissed. There was no basis for interfering with Governor in Council's second authorization of project. Governor in Council reinitiated consultations directly with potentially affected Indigenous groups and retained recognized expert with extensive experience in Indigenous matters to oversee and provide guidance. Significantly, consultation process initiated by Canada invited participation of 129 Indigenous groups potentially impacted by project, and in end, more than 120 either supported it or did not oppose it. Governor in Council explained that in end, detailed Crown Consultation and Accommodation Report (CCAR) was provided to all members of Governor in Council and was publicly disclosed, including to Indigenous groups.
Coldwater First Nation v. Canada (Attorney General) (2020), 2020 CarswellNat 215, 2020 CarswellNat 216, 2020 FCA 34, 2020 CAF 34, Marc Noël C.J., J.D. Denis Pelletier J.A., and J.B. Laskin J.A. (F.C.A.).
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