Gitxaala Nation v. Canada

Gitxaala Nation v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2016-06-23
Neutral citation
2016 FCA 187
File numbers
A-437-14, 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, A-56-14, A-59-14, A-63-14, A-64-14, A-67-14
Notes
A correction was made on December 06, 2016
Reported Decision
Decision Content
Date: 20160623
Dockets: 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
Citation: 2016 FCA 187
CORAM:
DAWSON J.A.
STRATAS J.A.
RYER J.A.
BETWEEN:
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
and
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
Heard at Vancouver, British Columbia, on October 1-2 and October 5-8, 2015.
Judgment delivered at Ottawa, Ontario, on June 23, 2016.
REASONS FOR JUDGMENT BY:
DAWSON AND STRATAS JJ.A.
DISSENTING REASONS BY:
RYER J.A.
Date: 20160623
Dockets: 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
Citation: 2016 FCA 187
CORAM:
DAWSON J.A.
STRATAS J.A.
RYER J.A.
BETWEEN:
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
and
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
REASONS FOR JUDGMENT
DAWSON and STRATAS JJ.A.
[1] Before the Court are nine applications for judicial review of Order in Council P.C. 2014-809. That Order required the National Energy Board to issue two Certificates of Public Convenience and Necessity, on certain conditions, concerning the Northern Gateway Project. That Project, proposed by Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership, consists of two pipelines transporting oil and condensate, and related facilities.
[2] Also before the Court are five applications for judicial review of a Report issued by a review panel, known as the Joint Review Panel, acting under the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, section 52 and the National Energy Board Act, R.S.C. 1985, c. N-7, as amended. The Governor in Council considered the Joint Review Panel’s Report when making its Order in Council.
[3] And also before the Court are four appeals of the Certificates issued by the National Energy Board.
[4] All of these proceedings have been consolidated. These are our reasons for judgment in the consolidated proceedings. In conformity with the order consolidating the proceedings, the original of these reasons will be placed in the lead file, file A-437-14, and a copy will be placed in each of the other files.
[5] As seen above, three administrative acts—the Order in Council, the Report and the Certificates—are all subject to challenge. But, as explained below, for our purposes, the Order in Council is legally the decision under review and is the focus of our analysis.
[6] Applying the principles of administrative law, we find that the Order in Council is acceptable and defensible on the facts and the law and is reasonable. The Order in Council was within the margin of appreciation of the Governor in Council, a margin of appreciation that, as we shall explain, in these circumstances is broad.
[7] However, the Governor in Council could not make the Order in Council unless Canada has also fulfilled the duty to consult owed to Aboriginal peoples.
[8] When considering whether that duty has been fulfilled—i.e., the adequacy of consultation—we are not to insist on a standard of perfection; rather, only reasonable satisfaction is required. Bearing in mind that standard, we conclude that Canada has not fulfilled its duty to consult. While Canada exercised good faith and designed a good framework to fulfil its duty to consult, execution of that framework—in particular, one critical part of that framework known as Phase IV—fell well short of the mark. A summary of our reasons in support of this conclusion can be found at paragraphs 325-332, below.
[9] In reaching this conclusion, we rely to a large extent on facts not in dispute, including Canada’s own factual assessments and its own officials’ words. Further, in reaching this conclusion, we have not extended any existing legal principles or fashioned new ones. Our conclusion follows from the application of legal principles previously settled by the Supreme Court of Canada to the undisputed facts of this case.
[10] Thus, for the following reasons, we would quash the Order in Council and the Certificates that were issued under them. We would remit the matter back to the Governor in Council for prompt redetermination.
[11] For the convenience of the reader, we offer an index to these reasons:
A. The Project
[12]
B. The parties
[17]
C. The approval process for the Project
[19]
(1) Introduction
[19]
(2) The beginning
[21]
(3) The process gets underway
[33]
(4) The parties’ participation in the approval process
[48]
(5) The Report of the Joint Review Panel
[50]
(6) Consultation with Aboriginal groups: Phase IV
[54]
(7) The Order and the Certificates
[59]
(8) Future regulatory processes
[67]
D. Legal proceedings
[68]
E. Reviewing the administrative decisions following administrative law principles
[74]
(1) Introduction
[74]
(2) Preliminary issues
[82]
(a) The standing of certain parties
[82]
(b) The admissibility of affidavits
[88]
(3) ...... The legislative scheme in detail
[92]
(a) The report stage: the National Energy Board Act requirements
[102]
(b) The report stage: the Canadian Environmental Assessment Act, 2012 requirements
[108]
(c) Consideration by the Governor in Council
[112]
(4) Characterization of the legislative scheme
[119]
(5) Standard of review
[128]
(6) The Governor in Council’s decision was reasonable under administrative law principles
[156]
F. The duty to consult Aboriginal peoples
[170]
(1) Legal principles
[170]
(2) The standard to which Canada is to be held in fulfilling the duty
[182]
(3) The consultation process
[187]
(4) ...... The alleged flaws in the consultation process
[191]
(a) The Governor in Council prejudged the approval of the Project
[192]
(b) The framework of the consultation process was unilaterally imposed upon the First Nations
[201]
(c) Inadequate funding for participation in the Joint Review Panel and consultation processes
[209]
(d) The consultation process was over-delegated
[211]
(e) Canada either failed to conduct or failed to share with affected First Nations its legal assessment of the strength of their claims to Aboriginal rights or title
[218]
(f) The Crown consultation did not reflect the terms, spirit and intent of the Haida Agreements
[226]
(g) The Joint Review Panel Report left too many issues affecting First Nations to be decided after the Project was approved
[230]
(h) The consultation process was too generic: Canada and the Joint Review Panel looked at First Nations as a whole and failed to address adequately the specific concerns of particular First Nations
[230]
(i) After the Report of the Joint Review Panel was finalized, Canada failed to consult adequately with First Nations about their concerns and failed to give adequate reasons
[230]
(j) Canada did not assess or discuss title or governance rights and the impact on those rights
[230]
(5) Conclusion
[325]
G. Remedy
[333]
H. Proposed disposition
[342]
A. The Project [12] The Northern Gateway Project consists of two 1,178 kilometer pipelines and associated facilities. One pipeline is intended to transport oil from Bruderheim, Alberta to Kitimat, British Columbia. At Kitimat, the oil would be loaded onto tankers for delivery to export markets. The other pipeline would carry condensate removed from tankers at Kitimat to Bruderheim, for distribution to Alberta markets.
[13] The associated facilities include both tank and marine terminals in Kitimat consisting of a number of oil storage tanks, condensate storage tanks, tanker berths and a utility berth. Kitimat would be a much busier place, with 190-250 tanker calls a year, some tankers up to 320,000 tons deadweight in size.
[14] If built, the Project could operate for 50 years or more.
[15] Behind the Project are Northern Gateway Pipelines Limited Partnership and Northern Gateway Pipelines Inc. For the purposes of these reasons, it is not necessary to distinguish between the two and so the term “Northern Gateway” shall be used throughout for both or either.
[16] Northern Gateway is not alone behind the Project. It has 26 Aboriginal equity partners representing almost 60% of the Aboriginal communities along the pipelines’ right-of-way, representing 60% of the area’s First Nations’ population and 80% of the area’s combined First Nations and Métis population. Northern Gateway continues to discuss long term partnerships with a number of Aboriginal groups and expects that the number of equity partners will increase.
B. The parties [17] The Project significantly affects a number of the First Nations who are parties to these proceedings. In no particular order, these parties are as follows:
• Gitxaala Nation. Portions of the oil and condensate tanker routes for the Project are located within the Gitxaala’s asserted traditional territory. The Gitxaala maintain that the tanker traffic resulting from the Project would affect its Aboriginal rights, including title and self-governance rights. Its main community, Lach Klan, is roughly 10 kilometres from the tanker routes. Also near the tanker routes are fifteen of its reserves, several harvesting areas, traditional village sites, and spiritual sites.
• Haisla Nation. A portion of the pipelines, the entire Kitimat terminal and a portion of the tanker route are within territory claimed by the Haisla upon which they assert rights to hunt, fish, trap, gather, use timber resources and govern. Canada accepted the Haisla’s comprehensive claim for negotiations decades ago and twenty years ago, Canada entered into a framework agreement with the Haisla for treaty negotiations.
• Gitga’at First Nation. All ships coming or going from the Kitimat terminal must pass through the Gitga’at’s asserted territory. They have fourteen reserves along the proposed shipping route; indeed, the route is just two kilometres from the main Gitga’at community at Hartley Bay, British Columbia.
• Kitasoo Xai’Xais Band Council. This party is the body that governs the Kitasoo Xai’Xais Nation, a band of Aboriginal peoples comprised of the Tsimshian Kitasoo people and Heiltsuk language speaking Xai’Xais people. Their asserted territory includes a number of coastal islands and surrounding waters and mainland territory next to inlets and fjords. Tankers will cross their territory.
• Heiltsuk Tribal Council. This party governs the Heiltsuk Nation. The Heiltsuk Nation is a band of Aboriginal peoples amalgamated from five tribal groups located on the central coast of British Columbia. They assert a claim to 16,658 square kilometres of land and nearshore and offshore waters on the central coast of British Columbia. Their main community is Bella Bella, on Campbell Island. Tankers approaching Kitimat from the southern approach will travel through the Heiltsuk’s asserted territory.
• Nadleh Whut’en and Nak’azdli Whut’en. They are part of the Yinka Dene or Dakelh people. Yinka Dene means “people of the earth” or “people for the land.” Dakelh means “travellers on water.” They have a governance system founded in ancestral laws, key elements of which include the affiliation of Dakelh people with clans that include hereditary leaders, land and resource management territories known as “keyoh” or “keyah,” and a system of governance known as “bahlats” as an institution to govern the keyoh/keyah and clans. The pipelines would cross approximately 50 kilometres of the Nadleh’s asserted territory and cross 86 watercourses on their land, 21 of which are fish-bearing waters. The pipelines would cross approximately 110 kilometres of the Nak’azdli’s asserted territory and cross 167 watercourses on their land, 60 of which are fish-bearing waters. A pumping station would also be located on the Nak’azdli’s asserted territory. The Nadleh and the Nak’azdli are members of the Carrier Sekani Tribal Council, whose comprehensive claim has been accepted by Canada for negotiation.
• Haida Nation. The Haida Nation is the Indigenous Peoples of Haida Gwaii. Haida Gwaii means “islands of the people,” and is an archipelago of more than 150 islands, extending roughly 250 kilometres, with roughly 4,700 kilometres of shoreline. No place is further than 20 kilometres from the sea. All proposed tanker routes go through or are next to the marine portion of the territory asserted by the Haida. In the southern portion of Haida Gwaii is Gwaii Haanas, a Haida protected area and national park reserve that contains a UNESCO World Heritage Site called “sGan gwaay” or “nansdins.” Northern Gateway identified nine ecosections and twelve oceanographic areas of significance for the Project and a number of these surround Haida Gwaii.
[18] Other parties before the Court claim a strong interest in the Project:
• ForestEthics Advocacy Association. This non-profit environmental protection society has a long history of advocating for changes in the extraction of natural resources, protecting endangered forests and wild places, educating and informing the public and working with governments and others in pursuit of these objectives.
• Living Oceans Society. This non-profit society advances science-based policy recommendations to achieve the conservation of oceans and the communities that depend upon them. It has been involved in researching and proposing policy for oil and gas development as it affects the marine environment.
• Raincoast Conservation Foundation. This is a group of conservationists and scientists dedicated to protecting the lands, waters and wildlife of coastal British Columbia through peer-reviewed science and grassroots advocacy and the use of a full-time university lab, a research station and a research vessel.
• B.C. Nature. This is a federation of naturalists and naturalist clubs representing more than 5,000 people. It wishes to maintain the integrity of British Columbia’s ecosystems and rich biodiversity. To this end, it engages in public education and coordinates a science-based program that identifies, conserves and monitors a network of habitats for bird populations.
• Unifor. This is a labour union that represents many energy and fisheries workers in Canada. The energy workers it represents are employed in oil and gas exploration, transportation, refining and conservation in petrochemical and plastics industries. A number of its members work in production and refining facilities in Alberta and British Columbia that are to be served by the Project. The fisheries workers are located across Canada. On the west coast, Unifor represents commercial fishers and fish plant workers who rely on healthy fish stocks and fish habitats.
C. The approval process for the Project (1) Introduction [19] The challenges associated with the approval process for the Project were immense. Massive in size and affecting so many diverse groups and geographic habitats in so many different ways, the Project had to be assessed in a sensitive, structured, efficient, yet inclusive manner.
[20] By and large—with the exception of certain aspects of Canada’s execution of the duty to consult, to which we return later in these reasons—the assessment and approval process was set up well and operated well. Given the challenges, this was no small achievement.
(2) The beginning [21] In late 2005, Northern Gateway Pipeline submitted a preliminary information package to the National Energy Board and the Canadian Environmental Assessment Agency.
[22] In early 2006, the Board, after consulting with various federal authorities, recommended that the Minister of the Environment refer the Project to a review panel. In the autumn, the Minister of the Environment referred the Project to a review panel to be conducted jointly under the National Energy Board Act and the Canadian Environmental Assessment Act. That review panel was known as the Joint Review Panel because it had two tasks. First, it was to prepare a report under section 52 of the National Energy Board Act for the consideration of the Governor in Council. Second, owing to the fact that the Project was a “designated project” within the meaning of section 2 of the Canadian Environmental Assessment Act, the Joint Review Panel was to conduct an environmental assessment of the Project and provide recommendations to the Governor in Council under section 30 of the Canadian Environmental Assessment Act.
[23] The terms of reference for the Joint Review Panel needed to be settled. Those terms of reference were to appear in an agreement between the National Energy Board and the Minister of the Environment. In September 2006, the Canadian Environmental Assessment Agency released a draft of that agreement for comment. This was an opportunity for the public and, specifically, Aboriginal groups, to provide their views.
[24] The review process was paused in late 2006 at the request of Northern Gateway which wanted time to complete various commercially necessary tasks. Those tasks were completed by mid-2008 when Northern Gateway requested the review process resume. In particular, it requested that the draft agreement setting the terms for the Joint Review Panel be finalized.
[25] Throughout this time, Aboriginal groups continued to have an opportunity to comment on the draft agreement. And in late 2008-early 2009, the Canadian Environmental Assessment Agency specifically contacted Aboriginal groups to advise them about the Project and to inform them of opportunities to participate in proceedings before the Joint Review Panel and the related process of consultation with the Crown. Much more on this will be discussed below.
[26] In February 2009, the Agency released the Government of Canada’s framework for consulting with Aboriginal groups regarding the Project. This framework, found in a document entitled Approach to Crown Consultation for the Northern Gateway Project, outlined a comprehensive five phase consultation process:
• Phase I: Preliminary Phase. During this Phase, there would be consultation on the draft Joint Review Panel agreement and information would be provided to Aboriginal Groups on the mandates of the National Energy Board and the Canadian Environmental Agency and the Joint Review Panel process.
• Phase II: Pre-hearing Phase. Information would be given to Aboriginal groups concerning the Joint Review Panel process and groups would be encouraged to participate in the process.
• Phase III: The Hearing Phase. During this time, the Joint Review Panel would hold its hearings. Aboriginal groups would be encouraged to participate and to provide information to help the Joint Review Panel in its process and deliberations. During this phase, the Crown was to participate and to facilitate the process by providing expert scientific and regulatory advice.
• Phase IV: The Post-Report Phase. Following the release of the Report of the Joint Review Panel, the Crown was to engage in consultation concerning the Report and on any project-related concerns that were outside of the Joint Review Panel’s mandate. For this purpose, the Canadian Environmental Assessment Agency was to be the contact point. This was to take place before the Governor in Council’s decision whether certificates for the Project should be issued under section 54 of the National Energy Board Act.
• Phase V: The Regulatory/Permitting Phase. During this phase, further consultation was contemplated concerning permits and authorizations to be granted for the Project, if approved.
[27] In February 2009, the Canadian Environmental Assessment Agency also released a new draft Joint Review Panel agreement, amended to respond to concerns raised during the initial comment period. A public comment period regarding the new draft agreement followed. Although the public comment period closed in mid-April 2009, submissions and comments from Aboriginal groups continued to be accepted until August 2009. During this time, the Crown offered to meet with Aboriginal groups to discuss the draft Joint Review Panel agreement and how consultation with them would be carried out. In particular, the Gitga’at, the Gitxaala and the Haisla met with the Crown.
[28] Near the end of 2009, the mandate of the Joint Review Panel and the process for the assessment of the Project began to be finalized. The National Energy Board and all federal “responsible authorities” within the meaning of the Canadian Environment Assessment Act signed an agreement entitled Project Agreement for the Northern Gateway Pipelines Project in Alberta and British Columbia. The Canadian Environmental Assessment Agency issued a document entitled Scope of the Factors – Northern Gateway Pipeline Project, Guidance for the assessment of the environmental effects of the Northern Gateway Project. Finally, the Agency issued letters to certain Aboriginal groups providing all of these documents and a table setting out the consideration given to comments made by Aboriginal groups.
[29] Shortly afterward, the Canadian Environmental Assessment Agency and the National Energy Board issued the Agreement Between the National Energy Board and the Minister of the Environment concerning the Joint Review of the Northern Gateway Pipeline Project. In this agreement, Canada committed to a “whole of government” approach to Aboriginal engagement and consultation, including reliance, to the extent possible, on the consultation efforts of Northern Gateway and the Joint Review Panel.
[30] Also appended to this agreement as an appendix were the terms of reference for the Joint Review Panel. These terms of reference included process requirements for the Joint Review Panel to follow during its review of the Project. And in January 2010, in accordance with that agreement, the Minister of the Environment and the Chair of the National Energy Board appointed three persons to serve on the Joint Review Panel.
[31] The National Energy Board also established a Joint Review Panel Secretariat working in concert with the Canadian Environmental Assessment Agency to provide support to the Joint Review Panel.
[32] The Canadian Environmental Assessment Agency acted as Canada’s “Crown Consultation Coordinator” for the Project.
(3) The process gets underway [33] With these preliminary matters completed, the approval process formally began.
[34] In May 2010, Northern Gateway filed an application requesting certificates from the National Energy Board for the Project, an order under Part IV of the National Energy Board Act approving the toll principles for service on the pipelines and such further relief as required.
[35] In July 2010, the Joint Review Panel issued its first procedural direction. It sought comment from the public, including Aboriginal groups, concerning a draft list of issues, the information that Northern Gateway should be required to file over and above that submitted with its application, and locations for the Joint Review Panel’s oral hearings. To this end, the Joint Review Panel received written comments and received oral comments at hearings held at three locations.
[36] The Joint Review Panel considered what it had heard and decided certain things. It required Northern Gateway to file additional information to address certain issues specific to the Project and certain risks posed by the Project. The Joint Review Panel stated that this information had to be provided before it could issue a hearing order. It also revised the list of issues and commented on the locations for its hearings.
[37] Staff for the Joint Review Panel conducted public information sessions between 2010 and July 2011 and online workshops from November 2011 to April 2013. By March 31, 2011, Northern Gateway submitted additional information in response to the Joint Review Panel’s decision.
[38] In May 2011, the Joint Review Panel issued a hearing order. In that order, it described the procedures to be followed in the joint review process and gave notice that the hearings would start on January 10, 2012.
[39] Around the same time, the Crown consulted with representatives of some of the Aboriginal groups who are applicants/appellants in these proceedings, including the Gitga’at, the Gitxaala, the Haida, the Haisla and the Heiltsuk. Also in 2011, a number of Aboriginal groups, including most of the Aboriginal groups who are parties to these proceedings, and a number of public interest groups registered to intervene in the proceedings before the Joint Review Panel.
[40] A number of government agencies—Natural Resources Canada, Aboriginal Affairs and Northern Development Canada, Fisheries and Oceans Canada, the Canadian Coast Guard, Transport Canada, and Environment Canada—also registered as government participants in the proceedings. All interveners and government agencies had to file written evidence with the Joint Review Panel by one week before the start date for the hearings.
[41] Through its Participant Funding Program, the Canadian Environmental Assessment Agency provided funding to certain public and Aboriginal groups to facilitate their participation in the Joint Review Panel process and Crown consultation activities.
[42] As scheduled, on January 10, 2012, the Joint Review Panel’s hearings began. The first set of hearings was known as the “community hearings.” The Joint Review Panel travelled to many local communities and received letters of comment and oral statements, including statements from representatives of Aboriginal groups. At one point, the Joint Review Panel and other interveners accompanied representatives of the Gitxaala on a boat tour of a portion of their asserted traditional territory.
[43] Around this time, the Joint Review Panel received a report setting out a technical review of marine aspects of the Project. Initiated in 2004 at the request of Northern Gateway, this technical review, known as the Technical Review Process of Marine Terminal Systems and Transshipment Sites or “TERMPOL”, was conducted by a review committee chaired by Transport Canada, staffed by representatives of other federal departments and, among other things, assisted by a technical consultant acting on behalf of the Haisla and the Kitimat Village Council.
[44] Also around this time, there were some legislative changes. Originally, the environmental assessment was to be conducted in accordance with the Canadian Environmental Assessment Act that was introduced in 1992. But in mid-2012, the Jobs, Growth and Long-Term Prosperity Act, S.C. 2012, c. 19 became law, repealing the 1992 version of the Canadian Environmental Assessment Act, enacting the Canadian Environmental Assessment Act, 2012, and amending the National Energy Board Act. The joint review process for the Project, already underway, was continued under these amended provisions. Hereafter, in these reasons, unless otherwise noted, references to the Canadian Environmental Assessment Act, 2012 and the National Energy Board Act refer to the 2012 versions of these statutes.
[45] A month after those statutory amendments became law, and in accordance with those amendments, the Minister of the Environment and the Chair of the National Energy Board directed that the Joint Review Panel submit its environmental assessment as part of the recommendation report under section 52 of the National Energy Board Act no later than December 31, 2013. They also finalized amendments to some of the agreements discussed above and the terms of reference of the Joint Review Panel.
[46] Proceeding under the 2012 legislation, the Joint Review Panel had two main tasks. First, it had to provide a report under section 52 of the National Energy Board Act. Second, in that report it was also to include recommendations flowing from the environmental assessment conducted under Canadian Environment Assessment Act, 2012: subsection 29(1). Overall, the report was to:
• recommend whether the requested certificates should be issued;
• outline the terms and conditions that should be attached to any certificates issued by the Board for the Project;
• present recommendations based on the environmental assessment.
[47] In September 2012, the Joint Review Panel conducted what it called “final hearings.” This last phase of the hearing process ended in June 2013. During this stage, the parties asked questions, filed written argument and made oral argument.
(4) The parties’ participation in the approval process [48] Overall, the parties had ample opportunity to participate in the Joint Review Panel process and generally availed themselves of it:
• Gitxaala Nation. The Gitxaala participated in all parts of the Joint Review Panel process, including making information requests, submitting technical reports, written and oral Aboriginal evidence, and attending hearings in many localities. Overall, the Gitxaala submitted 7,400 pages of written material, oral testimony from 27 community members and 11 expert reports on various subjects, including Northern Gateway’s risk assessment methodology, oil spill modelling, and the fate and behaviour of spilled diluted bitumen. Among other things, the Gitxaala expressed deep concern about the specific effects the Project could have on asserted rights and title.
• Haisla Nation. The Haisla also participated in all parts of the Joint Review Panel process, including submitting technical and Aboriginal evidence, oral traditional evidence, attending hearings, and participating extensively in the final round of submissions. During the process, the Haisla filed a traditional use study that describes their culture, property ownership system and laws and how the Project will interfere with their use and occupation of their lands, water and resources. The Haisla also submitted a historic and ethnographic report and an archaeological site summary supporting their claim to exclusive use and occupation of their asserted lands. The Haisla also tendered statements and oral histories from hereditary and elected chiefs and elders outlining the Haisla’s history, their use and occupation of their asserted lands, and their efforts to protect their lands, waters and resources for the benefit of future generations. The Haisla also expressed their concerns about the Project.
• Kitasoo Xai’Xais Band Council. The Kitasoo submitted brief written evidence, oral evidence at a community hearing and filed final written argument.
• Heiltsuk Tribal Council. The Heiltsuk submitted written evidence, answered an information request, gave oral evidence at a community hearing, conducted some cross-examination of witnesses for Northern Gateway and Canada, and submitted final argument.
• Nadleh Whut’en and Nak’azdli Whut’en. These parties made submissions to the Crown regarding the draft joint review agreement and the manner in which Canada was engaging in consultation during Phase I of the consultation process. The Yinka Dene Alliance, of which the Nadleh and the Nak’azdli were a part, elected not to intervene before the Joint Review Panel, but a keyoh within the Nak’azdli Whut’en system of governance did intervene.
• Haida Nation. The Haida participated in all parts of the Joint Review Panel process. They made information requests, submitted written technical and Aboriginal evidence, provided oral Aboriginal evidence, attended hearings to question Northern Gateway witnesses, submitted a final written argument with comments on proposed conditions, and made oral reply argument. They submitted a 336-page Marine Traditional Knowledge Study describing traditional harvesting activities, both historically and currently, locations of harvesting, and the time of year that harvesting is undertaken for various species throughout Haida Gwaii. The Haida and Canada collaborated on Living Marine Legacy Reports over six years culminating in 2006. These reports, totalling 1,247 pages, provide baseline inventories of marine plants, invertebrates, birds and mammals along the coastline of Haida Gwaii.
• ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation (hereafter, the “Coalition”). The Coalition participated in the Joint Review Panel process as interveners, providing written evidence and written responses to information requests regarding that evidence, submitting written information requests to other parties, offering witnesses, questioning other parties’ witnesses and making submissions.
• B.C. Nature. B.C. Nature participated in the Joint Review Panel process as a joint intervener with Nature Canada. It tendered written evidence, provided written responses to information requests regarding that evidence, questioned the witnesses of other parties, provided late written evidence, offered witnesses on that evidence, filed several motions and made submissions.
• Unifor. The predecessor unions of this national union participated in the Joint Review Panel process as interveners. They adduced expert evidence, exchanged information requests and responses, presented witnesses for questioning, and offered final argument.
[49] Needless to say, the involvement of Northern Gateway and Canada throughout the Joint Review Panel process was massive. In Canada’s case, as mentioned above, a number of departments and agencies registered with the Joint Review Panel process as government participants. They filed written evidence, information requests and responses to information requests. They also offered witnesses for questioning on the evidence provided.
(5) The Report of the Joint Review Panel [50] On December 19, 2013, the Joint Review Panel issued a two volume report: Connections: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, vol. 1 and Considerations: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, vol. 2.
[51] The Joint Review Panel found that the Project was in the public interest. It recommended that the applied-for certificates be issued subject to 209 conditions. The conditions require a number of plans, studies and assessments to be considered and assessed by the National Energy Board and other regulators in the future. The 209 conditions include requirements that Northern Gateway provide ongoing and enduring opportunities for affected Aboriginal groups to have input into the continuing planning, construction and operation of the Project through a variety of plans, programs and benefits. A number of the conditions were offered by Northern Gateway during the process. Along with those 209 conditions, Northern Gateway made over 450 voluntary commitments.
[52] The conditions deal with such matters as environmental management and monitoring, emergency preparedness and response, and the delivery of economic benefits. Northern Gateway says that these conditions represent an investment of $2 billion on its part. Aboriginal groups, including the First Nations parties in these proceedings will continue to have opportunities to provide input and participate in fulfilment of these conditions.
[53] The Joint Review Panel also recommended that the Governor in Council conclude that:
• potential adverse environmental effects from the Project alone are not likely to be significant;
• adverse effects of the Project, in combination with effects of past, present and reasonably foreseeable activities or actions are likely to be significant for certain woodland caribou herds and grizzly bear populations; and
• the significant adverse cumulative effects in relation to the caribou and grizzly bear populations are justified in the circumstances.
(6) Consultation with Aboriginal groups: Phase IV [54] Following the release of the Report of the Joint Review Panel, the process of consultation with Aboriginal groups entered Phase IV of the consultation framework. A detailed description of what happened during this phase is set out below.
[55] For present purposes, Phase IV began with the Crown sending letters to representatives of Aboriginal groups in December 2013, seeking input on how the Joint Review Panel’s recommendations and conclusions addressed their concerns. Officials from the Canadian Environmental Assessment Agency and other federal departments held meetings with representatives from Aboriginal groups to discuss concerns. Federal representatives met with a number of Aboriginal groups including the Gitga’at, the Gitxaala, the Haida, the Haisla, the Heiltsuk, the Kitasoo and the Yinka Dene Alliance (which includes the Nak’azdli and the Nadleh).
[56] Following these meetings and discussions, on May 22, 2014, Canada issued a report concerning its consultation: Report on Aboriginal Consultation Associated with the Environmental Assessment.
[57] At this point, it is perhaps appropriate to note that this is not a case where the proponent of the Project, Northern Gateway, declined to work with Aboriginal groups. Far from it. Once the pipeline corridor for the Project was defined in 2005, Northern Gateway engaged with all Aboriginal groups, both First Nations and Métis, with communities located within 80 kilometres of the Project corridor and the marine terminal. Northern Gateway engaged with other Aboriginal groups beyond that area to the extent that they self-identified as having an interest because the corridor crossed their traditional territory.
[58] In all, Northern Gateway engaged with over 80 different Aboriginal Groups across various regions of Alberta and British Columbia. It employed many methods of engagement, giving $10.8 million in capacity funding to interested Aboriginal groups. It also implemented an Aboriginal Traditional Knowledge program, spending $5 million to fund studies in that area.
(7) The Order and the Certificates [59] The Governor in Council had before it the Report of t