Tsleil-Waututh Nation v. Canada (Attorney General)

Tsleil-Waututh Nation v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-08-30
Neutral citation
2018 FCA 153
File numbers
A-217-16, A-218-16, A-223-16, A-224-16, A-225-16, A-232-16, A-68-17, A-74-17, A-75-17, A-76-17, A-77-17, A-78-17, A-84-17, A-86-17
Notes
A correction was made on July 12, 2019
Reported Decision
Decision Content
Date: 20180830
Dockets: A-78-17 (lead file); A-217-16; A-218-16;
A-223-16; A-224-16; A-225-16; A-232-16;
A-68-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17; A-86-17
Citation: 2018 FCA 153
CORAM:
DAWSON J.A.
DE MONTIGNY J.A.
WOODS J.A.
BETWEEN:
TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝAM, CHIEF IAN CAMPBELL on his own behalf and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of all members of the Coldwater Band, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE, SKWAH, CHIEF DAVID JIMMIE on his own behalf and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
Applicants
and
ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD and
TRANS MOUNTAIN PIPELINE ULC
Respondents
and
ATTORNEY GENERAL OF ALBERTA and ATTORNEY GENERAL OF BRITISH COLUMBIA
Interveners
Heard at Vancouver, British Columbia, on October 2-5, 10, 12-13, 2017.
Judgment delivered at Ottawa, Ontario, on August 30, 2018.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED IN BY:
DE MONTIGNY J.A.
WOODS J.A.
Date: 20180830
Dockets: A-78-17 (lead file); A-217-16; A-218-16;
A-223-16; A-224-16; A-225-16; A-232-16;
A-68-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17; A-86-17
Citation: 2018 FCA 153
CORAM:
DAWSON J.A.
DE MONTIGNY J.A.
WOODS J.A.
BETWEEN:
TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝAM, CHIEF IAN CAMPBELL on his own behalf and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of all members of the Coldwater Band, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE, SKWAH, CHIEF DAVID JIMMIE on his own behalf and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
Applicants
and
ATTORNEY GENERAL OF CANADA,
NATIONAL ENERGY BOARD and
TRANS MOUNTAIN PIPELINE ULC
Respondents
and
ATTORNEY GENERAL OF ALBERTA and ATTORNEY GENERAL OF BRITISH COLUMBIA
Interveners
REASONS FOR JUDGMENT
DAWSON J.A.
Blank/En blanc
Para.
I. Introduction
1
A. Summary of Conclusions
4
II. The Project
9
III. The Applicants
15
A. Tsleil-Waututh Nation
16
B. City of Vancouver
21
C. City of Burnaby
23
D. The Squamish Nation
25
E. Coldwater Indian Band
30
F. The Stó:lō Collective
35
G. Upper Nicola Band
41
H. Stk’emlupsemc te Secwepemc of the Secwepemc Nation
45
I. Raincoast Conservation Foundation and Living Oceans Society
49
IV. The applications challenging the report of the National Energy Board and the Order in Council
50
V. The legislative regime
53
A. The requirements of the National Energy Board Act
54
B. The requirements of the Canadian Environmental Assessment Act, 2012
59
C. Consideration by the Governor in Council
63
VI. The report of the National Energy Board
68
VII. The decision of the Governor in Council
69
VIII. Factual background
72
A. Canada’s consultation process
72
B. Prehearing matters and the Project application
76
C. The scoping decision and the hearing order
81
D. Challenges to the hearing order and the scoping decision
85
E. The TERMPOL review process
88
F. The applicants’ participation in the hearing before the Board
94
G. Participant funding
99
1. Tsleil-Waututh Nation
102
2. The Squamish Nation
103
3. Coldwater Indian Band
104
4. The Stó:lō Collective
105
5. Upper Nicola Band
106
6. SSN
107
7. Raincoast Conservation Foundation and Living Oceans Society
108
H. Crown consultation efforts—a brief summary
109
1. Phase I (from 2013 to April 2014)
109
2. Phase II (from April 2014 to February 2016)
110
3. Phase III (February to November 2016)
115
I. Post National Energy Board report events
118
1. The Interim Measures for Pipeline Reviews
118
2. The Ministerial Panel
121
3. Greenhouse gas assessment
124
IX. The issues to be determined
125
X. Consideration of the issues
129
A. The preliminary issues
129
1. Trans Mountain’s motion to strike
133
2. The applicants’ motion asking that the two affidavits of Robert Love, or portions thereof, be struck or given no weight
143
(a) The hearsay objection
144
(b) Relevance of evidence of Trans Mountain’s engagement with the Indigenous applicants
153
3. Canada’s compendium—The Consultation Chronologies
163
B. Is the report of the National Energy Board amenable to judicial review?
170
1. The decision of this Court in Gitxaala
173
2. Was Gitxaala wrongly decided on this point?
175
(a) Did the Court err by stating that only “decisions about legal or practical interests” are judicially reviewable?
175
(b) Forestethics Advocacy v. Canada (Attorney General)
183
(c) The jurisprudence which reviewed environmental assessment reports
185
(d) The reference to inapplicable provisions of the Canadian Environmental Assessment Act, 2012
187
(e) Gitxaala thwarts review of the decision of the National Energy Board
200
(f) Conclusion on whether the report of the National Energy Board is amenable to judicial review
202
C. Should the decision of the Governor in Council be set aside on administrative law grounds?
204
1. The standard of review to be applied to the decision of the Governor in Council
204
(a) The administrative law components of the decision
206
(b) The constitutional component
224
2. Did the Governor in Council err in determining that the Board’s report qualified as a report so as to be a proper condition precedent to the Governor in Council’s decision?
228
(a) Was the Board’s process procedurally fair?
230
(i) Applicable legal principles
230
(ii) The asserted breaches of procedural fairness
237
(iii) The failure to hold a full oral hearing and to allow cross-examination of Trans Mountain’s witnesses
242
(iv) Trans Mountain’s responses to the Information Requests
260
(v) The asserted deferral and delegation of the assessment of important information
278
(vi) Failing to provide adequate reasons
292
(vii) Trans Mountain’s reply evidence
316
(viii) Conclusion on procedural fairness
321
(b) Did the Board fail to decide certain issues before recommending approval of the Project?
322
(i) Did the Board fail to assess the risks and impacts posed by the Project to Burnaby?
335
(ii) Did the Board fail to consider alternative means of carrying out the Project?
352
(iii) Did the Board fail to look at the West Alternative as an alternative route for the new pipeline?
375
(c) Did the Board fail to consider alternatives to the Westridge Marine Terminal?
387
(d) Did the Board err by failing to assess Project-related marine shipping under the Canadian Environmental Assessment Act, 2012?
388
(i) The deficiencies said to arise from the Board’s assessment of Project-related marine shipping under the National Energy Board Act
411
(ii) The Board’s consideration of Project-related marine shipping and its findings
413
(iii) Was the Board’s assessment of Project-related marine shipping substantially adequate?
431
(e) Did the Board err in its treatment of the Species at Risk Act?
442
(i) Did the Board err by concluding that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related marine shipping?
446
(ii) Did the Board substantially comply with its obligations under section 79 of the Species at Risk Act?
451
(iii) Was the Governor in Council obliged to comply with subsection 77(1) of the Species at Risk Act?
459
(f) Conclusion: the Governor in Council erred by relying upon the Board’s report as a proper condition precedent to the Governor in Council’s decision
465
3. The challenge of the Attorney General of British Columbia
474
(a) Did the Governor in Council fail to comply with the obligation to give reasons?
477
(b) Did the Governor in Council fail to consider the impact of Project-related shipping spill risks on the Province of British Columbia?
481
D. Should the decision of the Governor in Council be set aside on the ground that Canada failed to consult adequately with the Indigenous applicants?
485
1. The applicable legal principles
485
2. The standard to which Canada is to be held in fulfilling the duty
508
3. Application of the legal principles to the evidence
511
(a) Was the consultation process deficient because of the design of the process selected and followed by Canada?
513
(i) The consultation framework was unilaterally imposed
515
(ii) The Board’s process is said to be inadequate for fulfilling consultation obligations
520
(iii) The funding provided is said to have been inadequate
533
(iv) The process allowed the Project to be approved when essential information was lacking
542
(v) Conclusion on the adequacy of the process selected and followed by Canada
548
(b) Was the consultation process deficient because of Canada’s execution of the process?
550
(i) The need for meaningful two-way dialogue
564
(ii) The implementation of the mandate of the Crown consultation team
575
a. The Crown Consultation Report
578
b. The experience of Tsleil-Waututh
579
c. The experience of Squamish
582
d. The experience of Coldwater
585
e. The experience of Stó:lō
589
f. The experience of Upper Nicola
593
g. The experience of SSN
596
h. Conclusion on the mandate of the Crown consultation team
598
(iii) Canada’s reluctance to depart from the Board’s findings and recommended conditions and genuinely engage the concerns of the Indigenous applicants
602
(iv) Canada’s erroneous view that the Governor in Council could not impose additional conditions on the proponent
629
(v) Canada’s late disclosure of its assessment of the Project’s impact on the Indigenous applicants
638
(vi) Canada’s failure to dialogue meaningfully
649
a. The experience of Tsleil-Waututh
649
b. The experience of Squamish
662
c. The experience of Coldwater
669
d. The experience of Stó:lō
681
e. The experience of Upper Nicola
728
f. The experience of SSN
737
(vii) Conclusion on Canada’s execution of the consultation process
753
E. Remedy
764
F. Proposed Disposition
773
I. Introduction
[1] On May 19, 2016, the National Energy Board issued its report concerning the proposed expansion of the Trans Mountain pipeline system. The Board’s report recommended that the Governor in Council approve the expansion. The Board’s recommendation was based on the Board’s findings that the expansion is in Canada’s public interest, and that if certain environmental protection procedures and mitigation measures are implemented, and if the conditions the Board recommended are implemented, the expansion is not likely to cause significant adverse environmental effects.
[2] On November 29, 2016, the Governor in Council accepted the Board’s recommendation and issued Order in Council P.C. 2016-1069. The Order in Council recited the Governor in Council’s acceptance of the Board’s recommendation, and directed the Board to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project, subject to the conditions recommended by the Board.
[3] A number of applications for judicial review of the Board’s report and the Order in Council were filed in this Court. These applications were consolidated. These are the Court’s reasons for judgment in respect of the consolidated proceeding. Pursuant to the order consolidating the applications, a copy of these reasons shall be placed in each file.
A. Summary of Conclusions
[4] While a number of applicants challenge the report of the National Energy Board, as explained below, the Order in Council is legally the only decision under review. Its validity is challenged on two principal grounds: first, the Board’s process and findings were so flawed that the Governor in Council could not reasonably rely on the Board’s report; second, Canada failed to fulfil the duty to consult owed to Indigenous peoples.
[5] Applying largely uncontested legal principles established by the Supreme Court of Canada to the factual record, a factual record that is also largely not contested, I conclude that most of the flaws asserted against the Board’s process and findings are without merit. However, the Board made one critical error. The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.
[6] Applying the largely uncontested legal principles that underpin the duty to consult Indigenous peoples and First Nations set out by the Supreme Court, I also conclude that Canada acted in good faith and selected an appropriate consultation framework. However, at the last stage of the consultation process prior to the decision of the Governor in Council, a stage called Phase III, Canada’s efforts fell well short of the mark set by the Supreme Court of Canada. Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.
[7] Accordingly, for the following reasons, I would quash the Order in Council and remit the matter back to the Governor in Council for appropriate action, if it sees fit, to address these flaws and, later, proper redetermination.
[8] These reasons begin by describing: (i) the expansion project; (ii) the applicants who challenge the Board’s report and the Order in Council; (iii) the pending applications for judicial review; (iv) the legislative regime; (v) the report of the Board; and, (vi) the decision of the Governor in Council. The reasons then set out the factual background relevant to the challenges before the Court before turning to the issues raised in these applications and the consideration of those issues.
II. The Project
[9] No company may operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity, and given leave to the company to open the pipeline (subsection 30(1) of the National Energy Board Act, R.S.C. 1985, c. N-7).
[10] Trans Mountain Pipeline ULC is the general partner of Trans Mountain Pipeline L.P. (together referred to as Trans Mountain). Trans Mountain owns and holds operating certificates issued by the National Energy Board for the existing Trans Mountain pipeline system. This system includes a pipeline approximately 1,147 kilometres long that moves crude oil, and refined and semi-refined petroleum products from Edmonton, Alberta to marketing terminals and refineries in the central region and lower mainland area of British Columbia, as well as to the Puget Sound area in Washington State.
[11] On December 16, 2013, Trans Mountain submitted an application to the National Energy Board for a certificate of public convenience and necessity (and certain amended certificates) for the Trans Mountain Expansion Project (Project).
[12] The application described the Project to consist of a number of components, including: (i) twinning the existing pipeline system with approximately 987 kilometres of new pipeline segments, including new proposed pipeline corridors and rights-of-way, for the purpose of transporting diluted bitumen from Edmonton, Alberta to Burnaby, British Columbia; (ii) new and modified facilities, including pump stations and tanks (in particular, an expanded petroleum tank farm in Burnaby which would be expanded from 13 to 26 storage tanks); (iii) a new and expanded dock facility, including three new berths, at the Westridge Marine Terminal in Burnaby; and, (iv) two new pipelines running from the Burnaby storage facility to the Westridge Marine Terminal.
[13] The Project would increase the number of tankers loaded at the Westridge Marine Terminal from approximately five Panamax and Aframax class tankers per month to approximately 34 Aframax class tankers per month. Aframax tankers are larger and carry more product than Panamax tankers. The Project would increase the overall capacity of Trans Mountain’s existing pipeline system from 300,000 barrels per day to 890,000 barrels per day.
[14] Trans Mountain’s application stated that the primary purpose of the Project is to provide additional capacity to transport crude oil from Alberta to markets in the Pacific Rim, including Asia. If built, the system would continue to transport crude oil—primarily diluted bitumen.
III. The Applicants
[15] A number of First Nations and two large cities are significantly concerned about the Project and its impact upon them, and challenge its approval. Two non-governmental agencies also challenge the Project. These applicants are described below.
A. Tsleil-Waututh Nation
[16] The applicant Tsleil-Waututh Nation is a Coast Salish Nation. It is a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5 and its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
[17] In the traditional dialect of Halkomelem, the name Tsleil-Waututh means “People of the Inlet”. Tsleil-Waututh’s asserted traditional territory extends approximately from the vicinity of Mount Garibaldi to the north to the 49th parallel and beyond to the south. The traditional territory extends west to Gibsons and east to Coquitlam Lake. The traditional territory includes areas across British Columbia’s Lower Mainland, including sections of the Lower Fraser River, Howe Sound, Burrard Inlet and Indian Arm.
[18] Tsleil-Waututh’s traditional territory encompasses the proposed Westridge Marine Terminal and fuel storage facility expansion, and approximately 18 kilometres of pipeline right-of-way. Approximately 45 kilometres of marine shipping route will pass within Tsleil-Waututh’s asserted traditional territory.
[19] Much of Tsleil-Waututh’s population of 500 people live in its primary community of Tsleil-Waututh, which is located on the north shore of Burrard Inlet, approximately 3 kilometres across the Inlet from the Westridge Marine Terminal.
[20] Tsleil-Waututh asserts Aboriginal title to the land, water, air, marine foreshore and resources in Eastern Burrard Inlet. It also asserts freestanding stewardship, harvesting and cultural rights in this area. The Crown states that it assessed its duty to consult with Tsleil-Waututh on the deeper end of the consultation spectrum.
B. City of Vancouver
[21] The City of Vancouver is the third most densely populated city in North America, after New York City and San Francisco. It has 69.8 kilometres of waterfront along Burrard Inlet, English Bay, False Creek and the Fraser River, with 18 kilometres of beaches and a 22-kilometre long seawall.
[22] Approximately 25,000 residents of Vancouver live within 300 metres of the Burrard Inlet and English Bay shorelines.
C. City of Burnaby
[23] The City of Burnaby is the third largest city in British Columbia, with a population of over 223,000 people.
[24] A number of elements of the Project infrastructure will be located in Burnaby: (i) the new Westridge Marine Terminal; (ii) the Burnaby Terminal, including thirteen new storage tanks and one replacement storage tank; (iii) two new delivery lines following a new route connecting the Burnaby Terminal to the Westridge Marine Terminal through a new tunnel to be drilled under the Burnaby Mountain Conservation Area; and, (iv) a portion of the main pipeline along a new route to the Burnaby Terminal.
D. The Squamish Nation
[25] The applicant Squamish Nation is a Coast Salish Nation. It is a band within the meaning of the Indian Act and its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. There are currently just over 4,000 registered members of the Squamish Nation.
[26] The Squamish assert that since a time before contact with Europeans, Squamish have used and occupied lands and waters on the southwest coast of what is now British Columbia, extending from the Lower Mainland north to Whistler. This territory includes Burrard Inlet, English Bay, Howe Sound and the Squamish Valley. The boundaries of asserted Squamish territory thus encompass all of Burrard Inlet, English Bay and Howe Sound, as well as the rivers and creeks that flow into these bodies of water.
[27] Squamish has three reserves located in and at the entrance to Burrard Inlet:
Seymour Creek Reserve No. 2 (ch’ích’elxwi7kw) on the North shore close to the Westridge Marine Terminal;
Mission Reserve No. 1 (eslhá7an); and,
Capilano Reserve No. 5 (xwmelchstn).
Also located in the area are Kitsilano Reserve No. 6 (senákw) near the entrance to False Creek, and three other waterfront reserves in Howe Sound.
[28] Project infrastructure, including portions of the main pipeline, the Westridge Marine Terminal, the Burnaby Terminal, two new delivery lines connecting the terminals, and sections of the tanker routes for the Project will be located in Squamish’s asserted traditional territory and close to its reserves across the Burrard Inlet. The shipping route for the Project will also travel past three Squamish reserves through to the Salish Sea.
[29] Squamish asserts Aboriginal rights, including title and self-government, within its traditional territory. Squamish also asserts Aboriginal rights to fish in the Fraser River and its tributaries. The Crown assessed its duty to consult Squamish at the deeper end of the consultation spectrum.
E. Coldwater Indian Band
[30] The applicant Coldwater is a band within the meaning of section 2 of the Indian Act. Its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. Coldwater, together with 14 other bands, comprise the Nlaka’pamux Nation.
[31] The Nlaka’pamux Nation’s asserted traditional territory encompasses part of south-central British Columbia extending from the northern United States to north of Kamloops. This territory includes the Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater Valleys and the Coquihalla area.
[32] Coldwater’s registered population is approximately 850 members. Approximately 330 members live on Coldwater’s reserve lands. Coldwater holds three reserves: (i) Coldwater Indian Reserve No. 1 (Coldwater Reserve) approximately 10 kilometres southwest of Merritt, British Columbia; (ii) Paul’s Basin Indian Reserve No. 2 located to the southwest of the Coldwater Reserve, upstream on the Coldwater River; and, (iii) Gwen Lake Indian Reserve No. 3 located on Gwen Lake.
[33] Approximately 226 kilometres of the proposed pipeline right-of-way and four pipeline facilities (the Kamloops Terminal, the Stump Station, the Kingsvale Station and the Hope Station) will be located within the Nlaka’pamux Nation’s asserted traditional territory. The Kingsvale Station is located in the Coldwater Valley. The approved pipeline right-of-way skirts the eastern edges of the Coldwater Reserve. The existing Trans Mountain pipeline system transects both the Coldwater Reserve and the Coldwater Valley.
[34] Coldwater asserts Aboriginal rights and title in, and the ongoing use of, the Coldwater and Nicola Valleys and the Nlaka’pamux territory more generally. The Crown assessed its duty to consult Coldwater at the deeper end of the consultation spectrum.
F. The Stó:lō Collective
[35] One translation of the term “Stó:lō” is “People of the River”, referencing the Fraser River. The Stó:lō are a Halkomelem-speaking Coast Salish people. Traditionally, they have been tribally organized.
[36] The “Stó:lō Collective” was formed for the sole purpose of coordinating and representing the interests of its membership before the National Energy Board and in Crown consultations about the Project. The Stó:lō Collective represents the following applicants:
(a) Aitchelitz, Skowkale, Tzeachten, Squiala First Nation, Yakweakwioose, Shxwa:y Village and Soowahlie, each of which are villages and also bands within the meaning of section 2 of the Indian Act (the Ts’elxweyeqw Villages). The Ts’elxweyeqw Villages collectively comprise the Ts’elxweyeqw Tribe. Members of the Ts’elxweyeqw Villages are Stó:lō people and Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012; and,
(b) Skwah and Kwaw-Kwaw-Apilt, each of whom are villages and also bands within the meaning of section 2 of the Indian Act (the Pil’Alt Villages). The Pil’Alt Villages are members of the Pil’Alt Tribe. Members of the Pil’Alt Villages are Stó:lō people and Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. The Pil’Alt Villages are represented by the Ts’elxweyeqw Tribe in matters relating to the Project. (On March 6, 2018, Kwaw-Kwaw-Apilt filed a notice of discontinuance.)
[37] The Stó:lō’s asserted traditional territory, known as S’olh Temexw, includes the lower Fraser River watershed.
[38] The Stó:lō live in many villages, all of which are located in the lower Fraser River watershed.
[39] The existing Trans Mountain pipeline crosses, and the Project’s proposed new pipeline route would cross, approximately 170 kilometres of the Stó:lō Collective applicants’ asserted traditional territory, beginning from an eastern point of entry near the Coquihalla Highway and continuing to the Burrard Inlet.
[40] The Stó:lō possess established Aboriginal fishing rights on the Fraser River (R. v. Van der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289). The Crown assessed its duty to consult Stó:lō at the deeper end of the consultation spectrum.
G. Upper Nicola Band
[41] The applicant Upper Nicola is a member community of the Syilx (Okanagan) Nation and a band within the meaning of section 2 of the Indian Act. Upper Nicola and Syilx are an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012.
[42] The Syilx Nation’s asserted traditional territory extends from the north past Revelstoke around Kinbasket to the south to the vicinity of Wilbur, Washington. It extends from the east near Kootenay Lake to the west to the Nicola Valley. Upper Nicola currently has eight Indian Reserves within Upper Nicola’s/Syilx’s asserted territory. The primary residential communities are Spaxomin, located on Upper Nicola Indian Reserve No. 3 on the western shore of Douglas Lake, and Quilchena, located on Upper Nicola Indian Reserve No. 1 on the eastern shore of Nicola Lake.
[43] Approximately 130 kilometres of the Project’s proposed new pipeline will cross through Upper Nicola’s area of responsibility within Syilx territory. The Stump Station and the Kingsvale Station are also located within Syilx/Upper Nicola’s asserted territory.
[44] Upper Nicola asserts responsibility to protect and preserve the claimed Aboriginal title and harvesting and other rights held collectively by the Syilx, particularly within its area of responsibility in the asserted Syilx territory. The Crown assessed its duty to consult Upper Nicola at the deeper end of the consultation spectrum.
H. Stk’emlupsemc te Secwepemc of the Secwepemc Nation
[45] The Secwepemc are an Aboriginal people living in the area around the confluence of the Fraser and Thompson Rivers. The Secwepemc Nation is comprised of seven large territorial groupings referred to as “Divisions”. The Stk’emlupsemc te Secwepemc Division (SSN) is comprised of the Skeetchestn Indian Band and the Kamloops (or Tk’emlups) Indian Band. Both are bands within the meaning of section 2 of the Indian Act. SSN’s members are also Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012.
[46] The Skeetchestn Indian Band is located along the northern bank of the Thompson River, approximately 50 kilometres west of Kamloops and has four reserves. Its total registered population is 533. The Tk’emlups Indian Band is located in the Kamloops area and has six reserves. Its total registered population is 1,322. Secwepemc Territory is asserted to be a substantial landmass which encompasses many areas, including the area in the vicinity of Kamloops Lake.
[47] The existing and proposed pipeline right-of-way crosses through SSN’s asserted traditional territory for approximately 350 kilometres. Approximately 80 kilometres of the proposed pipeline right-of-way and two pipeline facilities, the Black Pines Station and the Kamloops Terminal, will be located within SSN’s asserted traditional territory.
[48] The SSN claim Aboriginal title over its traditional territory. The Crown assessed its duty to consult SSN at the deeper end of the consultation spectrum.
I. Raincoast Conservation Foundation and Living Oceans Society
[49] These applicants are not-for-profit organizations. Their involvement in the National Energy Board review process focused primarily on the effects of Project-related marine shipping.
IV. The applications challenging the report of the National Energy Board and the Order in Council
[50] As will be discussed in more detail below, two matters are challenged in this consolidated proceeding: first, the report of the National Energy Board which recommended that the Governor in Council approve the Project and direct the Board to issue the necessary certificate of public convenience and necessity; and, second, the decision of the Governor in Council to accept the recommendation of the Board and issue the Order in Council directing the Board to issue the certificate.
[51] The following applicants applied for judicial review of the report of the National Energy Board:
Tsleil-Waututh Nation (Court File A-232-16)
City of Vancouver (Court File A-225-16)
City of Burnaby (Court File A-224-16)
The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own behalf and on behalf of all members of Squamish (Court File A-217-16)
Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of Coldwater on behalf of all members of Coldwater (Court File A-223-16)
Raincoast Conservation Foundation and Living Oceans Society (Court File A-218-16).
[52] The following applicants applied, with leave, for judicial review of the decision of the Governor in Council:
Tsleil-Waututh Nation (Court File A-78-17)
City of Burnaby (Court File A-75-17)
The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own behalf and on behalf of all members of Squamish (Court File A-77-17)
Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of Coldwater on behalf of all members of Coldwater (Court File A-76-17)
The Stó:lō Collective applicants (Court File A-86-17)
Upper Nicola Band (Court File A-74-17)
Chief Ron Ignace and Chief Fred Seymour, on their own behalf and on behalf of all other members of Stk’emlupsemc te Secwepemc of the Secwepemc Nation (Court File A-68-17)
Raincoast Conservation Foundation and Living Oceans Society (Court File A-84-17).
V. The legislative regime
[53] For ease of reference the legislative provisions referred to in this section of the reasons are set out in the Appendix to these reasons.
A. The requirements of the National Energy Board Act
[54] As explained above, no company may operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity, and, after the pipeline is built, has given leave to the company to open the pipeline.
[55] Trans Mountain’s completed application for a certificate of public convenience and necessity for the Project triggered the National Energy Board’s obligation to assess the Project pursuant to section 52 of the National Energy Board Act. Subsection 52(1) of that Act requires the Board to prepare and submit to the Minister of Natural Resources, for transmission to the Governor in Council, a report which sets out the Board’s recommendation as to whether the certificate should be granted, together with all of the terms and conditions that the Board considers the certificate should be subject to if issued. The Board is to provide its reasons for its recommendation. When considering whether to recommend issuance of a certificate the Board is required to take into account “whether the pipeline is and will be required by the present and future public convenience and necessity”.
[56] The Board’s recommendation is, pursuant to subsection 52(2) of the National Energy Board Act, to be based on “all considerations that appear to it to be directly related to the pipeline and to be relevant” and the Board may have regard to five specifically enumerated factors which include “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.”
[57] If an application relates to a “designated” project, as defined in section 2 of the Canadian Environmental Assessment Act, 2012, the Board’s report must also set out the Board’s environmental assessment of the project. This assessment is to be prepared under the Canadian Environmental Assessment Act, 2012 (subsection 52(3) of the National Energy Board Act). A designated project is defined in section 2 of the Canadian Environmental Assessment Act, 2012:
designated project means one or more physical activities that
projet désigné Une ou plusieurs activités concrètes :
(a) are carried out in Canada or on federal lands;
a) exercées au Canada ou sur un territoire domanial;
(b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
b) désignées soit par règlement pris en vertu de l’alinéa 84a), soit par arrêté pris par le ministre en vertu du paragraphe 14(2);
(c) are linked to the same federal authority as specified in those regulations or that order.
c) liées à la même autorité fédérale selon ce qui est précisé dans ce règlement ou cet arrêté.
It includes any physical activity that is incidental to those physical activities.
Sont comprises les activités concrètes qui leur sont accessoires.
[58] The remaining subsections in section 52 deal with the timeframe in which the Board must complete its report. Generally, a report must be submitted to the Minister within the time limit specified by the Chair of the Board. The specified time limit must not be longer than 15 months after the completed application has been submitted to the Board.
B. The requirements of the Canadian Environmental Assessment Act, 2012
[59] Pursuant to subsection 4(3) of the Regulations Designating Physical Activities, SOR/2012-147, and section 46 of the Schedule thereto, because the Project includes a new onshore pipeline longer than 40 kilometres, the Project is a designated project as defined in part (b) of the definition of “designated project” set out in paragraph 57 above. In consequence, the Board was required to conduct an environmental assessment under the Canadian Environmental Assessment Act, 2012. For this purpose, subsection 15(b) of the Canadian Environmental Assessment Act, 2012 designated the National Energy Board to be the sole responsible authority for the environmental assessment.
[60] As the responsible authority, the Board was required to take into account the environmental effects enumerated in subsection 5(1) of the Canadian Environmental Assessment Act, 2012. These effects include changes caused to the land, water or air and to the life forms that inhabit these elements of the environment. The effects to be considered are to include the effects upon Aboriginal peoples’ health and socio-economic conditions, their physical and cultural heritage, their current use of lands and resources for traditional purposes, and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
[61] Subsection 19(1) of the Canadian Environmental Assessment Act, 2012 required the Board to take into account a number of enumerated factors when conducting the environmental assessment, including:
the environmental effects of the designated project (including the environmental effects of malfunctions or accidents that may occur in connection with the designated project) and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;
alternative means of carrying out the designated project that are technically and economically feasible, and the environmental effects of any such alternative means; and
any other matter relevant to the environmental assessment that the responsible authority, here the Board, requires to be taken into account.
[62] The Board was also required under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 to make recommendations to the Governor in Council with respect to the decision to be made by the Governor in Council under paragraph 31(1)(a) of that Act—a decision about the existence of significant adverse environmental effects and whether those effects can be justified in the circumstances.
C. Consideration by the Governor in Council
[63] Once in receipt of the report prepared in accordance with the requirements of the National Energy Board Act and the Canadian Environmental Assessment Act, 2012, the Governor in Council may make its decision concerning the proponent’s application for a certificate.
[64] Three decisions are available to the Governor in Council. It may, by order:
“direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report” (paragraph 54(1)(a) of the National Energy Board Act); or
“direct the Board to dismiss the application for a certificate” (paragraph 54(1)(b) of the National Energy Board Act); or
“refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration” and specify a time limit for the reconsideration (subsections 53(1) and (2) of the National Energy Board Act).
[65] Subsection 54(2) of the National Energy Board Act requires that the Governor in Council’s order “must set out the reasons for making the order.”
[66] Subsection 54(3) of the National Energy Board Act requires the Governor in Council to issue its order within three months after the Board’s report is submitted to