Coldwater First Nation v. Canada (Attorney General)

Coldwater First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-02-04
Neutral citation
2020 FCA 34
File numbers
A-324-19, A-325-19, A-326-19, A-327-19
Notes
Reported Decision
Decision Content
Date: 20200204
Dockets: A-324-19 (lead file),
A-325-19, A-326-19, A-327-19
Citation: 2020 FCA 34
CORAM:
NOËL C.J.
PELLETIER J.A.
LASKIN J.A.
BETWEEN:
COLDWATER INDIAN BAND, SQUAMISH NATION, TSLEIL-WAUTUTH NATION, and AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE
Applicants
and
ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC and TRANS MOUNTAIN CORPORATION
Respondents
and
ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN and CANADIAN ENERGY REGULATOR
Interveners
Heard at Vancouver, British Columbia, on December 16-18, 2019.
Judgment delivered at Ottawa, Ontario, on February 4, 2020.
REASONS FOR JUDGMENT BY:
THE COURT
Date: 20200204
Dockets: A-324-19 (lead file),
A-325-19, A-326-19, A-327-19
Citation: 2020 FCA 34
CORAM:
NOËL C.J.
PELLETIER J.A.
LASKIN J.A.
BETWEEN:
COLDWATER INDIAN BAND, SQUAMISH NATION, TSLEIL-WAUTUTH NATION, and AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE
Applicants
and
ATTORNEY GENERAL OF CANADA, TRANS MOUNTAIN PIPELINE ULC and TRANS MOUNTAIN CORPORATION
Respondents
and
ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF SASKATCHEWAN and CANADIAN ENERGY REGULATOR
Interveners
REASONS FOR JUDGMENT
THE COURT
[1] On November 29, 2016, weighing the benefits and detriments of the Trans Mountain Pipeline Expansion Project and considering Canada’s duty to consult with Indigenous peoples, the Governor in Council decided to approve the Project: Order in Council P.C. 2016-1069 (December 10, 2016), issued under section 54 of the National Energy Board Act, R.S.C. 1985, c. N-7 (NEB Act).
[2] Several applicants successfully challenged the approval (Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3 [TWN 2018]). This Court found two fundamental defects: the impermissibly under-inclusive nature of the environmental assessment that formed part of the basis for the approval and the Crown’s failure to fulfil its duty to consult with Indigenous peoples. This Court remitted the matter back to the Governor in Council in order for these flaws to be addressed and for re-decision.
[3] Toward that end, a reconsideration hearing was ordered to take place before the National Energy Board (NEB), as part of Phase II, and the Phase III consultation process was re-initiated. For a second time, the Governor in Council approved the Project (see Order P.C. 2019-820 (June 18, 2019), p. 1) (online: http://www.gazette.gc.ca/rp-pr/p1/2019/2019-06-22/pdf/g1-15325.pdf#page=251) [Order in Council]. As required by the NEB Act, the decision was issued with reasons, which took the form of 37 recitals that precede the operative portion of the Order in Council (the Recitals). An explanatory note was also issued providing additional reasons for the decision (online: http://www.gazette.gc.ca/rp-pr/p1/2019/2019-06-22/pdf/g1-15325.pdf#page=271) [Explanatory Note].
[4] Several parties sought to challenge the second approval on environmental grounds and on grounds of the Crown’s alleged continued failure to fulfil its duty to consult. However, only six applicants were granted leave under section 55 of the NEB Act to start applications for judicial review of the Order in Council. Two have discontinued their applications, leaving four applicants before the Court: Coldwater Indian Band (Coldwater), Squamish Nation (Squamish), Tsleil-Waututh Nation (Tsleil-Waututh) and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose (Ts’elxwéyeqw).
[5] Coldwater is a band, as defined under the Indian Act, R.S.C. 1985, c. I-5 (Indian Act), comprising over 850 members. Coldwater forms part of the Nlaka’pamux Nation, which asserts Aboriginal title to an area that includes the Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater Valleys, and Canada’s North Cascades, including the Coquihalla area. Squamish is a Coast Salish Nation, with over 4,212 registered members. Squamish’s traditional territory extends from the Lower Mainland of British Columbia to Whistler, and includes Burrard Inlet, English Bay, Howe Sound, and the Squamish Valley. Tsleil-Waututh is a Coast Salish Nation, and a band within the meaning of the Indian Act. In the traditional dialect of Halkomelem, the name Tsleil-Waututh means “People of the Inlet”. Tsleil-Waututh’s asserted traditional territory extends approximately west to Gibsons, east to Coquitlam Lake, north to the vicinity of Mount Garibaldi, and south to the 49th parallel and beyond, and includes sections of the Lower Fraser River, Howe Sound, Burrard Inlet, and Indian Arm. Ts’elxwéyeqw represents the seven Ts’elxwéyeqw (Stó:lō) villages of Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, and Yakweakwioose. Each of the seven villages is a band within the meaning of the Indian Act. In the traditional dialect of Halkomelem, one translation of “Stó:lō” is “People of the River”, being the Fraser River. Ts’elxwéyeqw’s traditional territory includes the lower Fraser River watershed in southwestern British Columbia.
[6] The applications for judicial review were restricted to the duty to consult issues, on the basis that the environmental concerns did not possess sufficient merit to justify the granting of leave (see Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 [Raincoast No. 1]). Specifically, the order granting leave (Leave Order) confined the applications to the following issues:
1. From August 30, 2018 (the date of the decision in [TWN 2018]) to June 18, 2019 (the date of the Governor in Council’s decision) was the consultation adequate in law to address the shortcomings in the earlier consultation process that were summarized at paras. 557-563 of [TWN 2018]? The answer to this question should include submissions on the standard of review, margin of appreciation or leeway that applies in law.
2. Do any defences or bars to the application apply?
3. If the answers to the questions 1 and 2 are negative, should a remedy be granted and, if so, what remedy and on what terms?
[7] The applications were consolidated by an order issued on September 20, 2019 later amended on November 5, 2019. In the consolidated applications, the applicants allege that the renewed consultation in which they were each involved did not adequately address the shortcomings identified in TWN 2018. They invite us to answer the first two questions in the negative, and to grant the remedy of an order quashing the Order in Council as a consequence.
[8] The Attorney General of Canada on behalf of the Crown (the Crown or Canada), Trans Mountain Pipeline ULC and Trans Mountain Corporation (together, Trans Mountain) resist the consolidated applications on the basis that the duty to consult was adequately fulfilled, and ask that they be dismissed on this basis. The Attorneys General of Alberta and Saskatchewan, as interveners, support the Crown’s position.
[9] The third intervener, the Canada Energy Regulator (CER), successor to the NEB, takes no position as to the merits of the judicial review applications, and appears in order to assist the Court as to the role of the NEB in the consultation process to date and its continued role in monitoring and ensuring ongoing compliance with the conditions that accompanied the issuance of the Order in Council.
[10] For the reasons that follow, we conclude that there is no basis for interfering with the Governor in Council’s second authorization of the Project. The judicial review applications will be dismissed.
[11] In conformity with the amended consolidation order, these reasons will be filed in docket A-324-19 and a copy thereof will be filed in dockets A-325-19, A-326-19 and A-327-19.
I. Opening observations
[12] The applicants have argued their case very much as if this was the first time that their case was adjudicated. In fact our task is more limited.
[13] In TWN 2018, this Court examined the consultation process that preceded the first Project approval in exhaustive detail, finding many aspects of that process to be adequate. It found that the execution of one part of the consultation, Phase III, was deficient.
[14] When it came to remedy, this Court in TWN 2018 did not require that the consultation process begin anew. Instead, it required focused consultation to address the shortcomings it identified. While the flaws were significant, they were restricted to precise issues within the overall consultation process.
[15] Our focus now is on the Governor in Council’s decision to approve the Project a second time. The Governor in Council considered that the consultation efforts made after TWN 2018 adequately remedied the identified flaws. Those efforts were sufficient to meet the duty to consult and, considering the benefits and detriments of the Project, the Project was in the public interest and should be approved.
[16] The existence and depth of the duty to consult are not in issue. All parties agree that the duty was one of deep consultation. The fundamental issue to be decided is whether taking this into account, the Governor in Council could reasonably conclude that the flaws identified in TWN 2018 were adequately remedied by the renewed consultation process. This is a narrow issue primarily based on the Governor in Council’s evaluation of the adequacy of the consultation that took place during the second consultation process, an assessment that is fact-intensive and that calls for deference.
[17] The Governor in Council was entitled to measure the adequacy of the second consultation process in light of what was possible in the circumstances. Among these circumstances is the fact that the consultation under scrutiny in this case was conducted pursuant to this Court’s decision in TWN 2018. In that case, the Court, having identified the flaws that needed further attention, was best positioned to evaluate how they could be addressed adequately. It concluded that the further consultation required to address the flaws could be “specific and focussed” and could be accomplished through a “brief and efficient” process (TWN 2018, para. 772).
[18] The Court in TWN 2018 did not envisage that much more had to be done in order for the consultation process to address the identified flaws. This appreciation of the nature and extent of the work to be done could legitimately be relied on by the Governor in Council in determining what was needed in order to conduct the reparative consultation process (Explanatory Note, pp. 22, 27). Absent new concerns or difficulties not envisaged in TWN 2018, it is not open to the applicants to now say—as they all do in one way or another—that something more than a “specific and focussed [and] brief and efficient” process was necessary.
[19] As well, consistent with this Court’s advice in TWN 2018, all understood, or should have understood, that the time available for the renewed consultation was not open-ended. The Governor in Council referred the matter back to the NEB for reconsideration on September 20, 2018 and gave the NEB until February 22, 2019 to produce its Reconsideration Report (Order in Council P.C. 2018-1177 (September 20, 2018)). Canada announced that it would also re-initiate Phase III of the consultation process beginning October 5, 2018. On April 17, 2019 the Governor in Council by way of a further Order in Council extended by roughly a month the time limit for its decision, bringing the deadline to June 18, 2019 (Order in Council P.C. 2019-378 (April 17, 2019)).
[20] The applicants complain that the time for the renewed consultation was insufficient to allow Canada to discharge its constitutional duty to consult. None of the applicants challenged the constitutional validity of section 54 of the NEB Act or the Orders in Council setting the time frame for the subsequent steps on the ground that they did not allow sufficient time for Canada to discharge its duty to consult. Absent such a challenge and given the time available, it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018. Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance.
[21] As well, all the applicants contend that Canada did not engage in the consultation process with an open mind. The suggestion in each case is that the outcome was pre-determined because Canada owned Trans Mountain.
[22] This argument was considered in Raincoast No. 1, and was held not to meet the “fairly arguable case” test for granting leave to commence a judicial review application for a number of reasons (paras. 33-36):
[33] At the outset, it suffers from a fatal flaw. The Governor in Council is not the Government of Canada. The Governor in Council, the decision-maker here, does not own the project.
[34] More fundamentally, section 54 of the National Energy Board Act requires the Governor in Council to decide whether to approve a project regardless of who owns it. The Act does not disqualify the Governor in Council from discharging this responsibility based on ownership of the project. The Act prevails over any common law notions of bias and conflict of interest.
[35] This case would be different if the Governor in Council blindly approved the project because the Government of Canada now owns it instead of looking at legally relevant criteria. But to make that sort of point “fairly arguable,” there must be at least a shred of evidence to support it. In the evidentiary record before the Court, there is none. Without evidence, suggestions of bias or conflict of interest are just idle speculations or bald allegations and cannot possibly satisfy the test of a “fairly arguable case”.
[36] Some applicants have noted public statements on the part of certain federal politicians in support of the project as proof of disqualifying bias. This issue is not “fairly arguable.” In law, statements of this sort do not trigger disqualifying bias.
[citations omitted]
[23] The bias argument, having been excluded at the leave stage, is not properly before us. However, we believe it useful to nevertheless confirm that based on the record before us, there is no evidence that the Governor in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the Project was in the public interest. While the assessment that was ultimately made may benefit the Crown as owner of the Project, nothing suggests that the Governor in Council was not guided by the public interest throughout.
II. The standard of review
A. General considerations
[24] After the hearing in this matter, the Supreme Court released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], concerning the standard of review that governs in matters such as this. This Court called for further submissions in writing from the parties concerning Vavilov. We have received their submissions and have considered them.
[25] All are agreed that Vavilov does not bring a material change to the standard of review in this litigation. However, Vavilov does bring together and clarify a number of principles in a useful way.
[26] This is a statutory judicial review, not a statutory appeal. In such circumstances, there is a presumption that the standard of review is reasonableness (Vavilov, paras. 23-32), and none of the exceptions to reasonableness review identified in Vavilov apply.
[27] In Vavilov, the Supreme Court held that questions as to “the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 […] require a final and determinate answer from the courts” and, thus, must be reviewed for correctness (Vavilov, para. 55). But, as mentioned, the scope of the duty to consult under section 35 is not in issue before us. Thus, reasonableness is the standard of review (see also TWN 2018, paras. 225-226). That said, we are dealing with a constitutional duty of high significance to Indigenous peoples and indeed the country as a whole. This is part of the context that informs the conduct of the reasonableness review.
[28] In conducting this review, it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning the Governor in Council’s decision. In many ways, that is what the applicants invite us to do. But this would amount to what has now been recognized as disguised correctness review, an impermissible approach (Vavilov, para. 83):
It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.
[29] Rather, our focus must be on the reasonableness of the Governor in Council’s decision, including the outcome reached and the justification for it. The issue is not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better. The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review.
[30] There are many such circumstances. The Supreme Court emphasized in Vavilov that reasonableness is a single standard that must account for context. In its words, “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case” (Vavilov, para. 89). Thus, reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision-making involved and all relevant factors” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 59; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, para. 18 [Catalyst]; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, para. 22). In other words, the circumstances, considerations and factors in particular cases influence how courts go about assessing the acceptability and defensibility of administrative decisions (Catalyst, para. 18; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, para. 54; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, para. 44).
[31] In Vavilov, the Supreme Court emphasized that reasonableness review is to be conducted by appreciating the decision, the reasons for it, and the context in which it was made. This requires us to consider the reasons offered in justification of the decision in light of the evidentiary record.
B. Factors that bear on reasonableness review
[32] One factor affecting the reasonableness review has already been examined above: the comments of this Court in TWN 2018 regarding what sort of work was required to address the shortcomings through a brief and efficient consultation process. The Governor in Council was entitled to take this assessment into account in determining whether the duty to consult was adequately met. But there are other factors that affect the reasonableness review.
(1) Empowering legislation
[33] One important factor to consider is the empowering legislation as set out in sections 54 and 55 of the NEB Act (Vavilov, para. 108; Canada (Attorney General) v. Boogaard, 2015 FCA 150, 87 Admin. L.R. (5th) 175, para. 36). It sets permissible bounds for the Governor in Council’s approval decision.
[34] Under section 54, the Governor in Council is the only body empowered to determine whether the Project should be approved or denied on any basis, including compliance with the duty to consult. When regard is had to this provision, this Court has no role in deciding whether the Project should be approved or not and should not second-guess the outcome based on its own view of the matter.
[35] Under section 55, challenges to an approval can only be brought by way of judicial review (TWN 2018, paras. 170ff., leave to appeal to SCC refused, 38379 (2 May 2019); Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418, paras. 92ff., 119ff., leave to appeal to SCC refused, [2017] 1 S.C.R. xvi [Gitxaala Nation]). Reviewing courts are limited to a reviewing function and are not to pronounce on the merits (see Raincoast No. 1, paras. 44, 50ff.; Ignace v. Canada (Attorney General), 2019 FCA 239, para. 36; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 259, paras. 13-15).
[36] This is particularly so given the nature of the question before us. As mentioned above, the Governor in Council decided that the duty to consult was adequately fulfilled, i.e., that there had been meaningful two-way dialogue during the reparative consultation process. This is a fact-intensive question of mixed fact and law that commands deference. Under section 54, it is up to the Governor in Council to assess the facts in order to determine the adequacy of consultation. Our role is restricted to testing the reasonableness of this assessment.
(2) The law concerning the duty to consult
[37] The law concerning the duty to consult constrains the Governor in Council under section 54 of the NEB Act and affects this Court’s review of the Governor in Council’s decision (Vavilov, paras. 111-114).
[38] The practical requirements of the duty to consult have been compared to administrative law standards of procedural fairness (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, para. 41 [Haida Nation]; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, para. 46 [Beckman]). The cases on point emphasize that consultation need not be perfect (Haida Nation, para. 62; TWN 2018, paras. 226, 508). It follows that the Governor in Council was entitled to give the government actors leeway in assessing whether their efforts resulted in compliance with the duty to consult.
[39] The words of this Court in Gitxaala Nation are apposite here (para. 182):
In this case, the subjects on which consultation was required were numerous, complex and dynamic, involving many parties. Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ.
(See also TWN 2018, paras. 509, 762; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722, para. 54 [Ahousaht First Nation]; Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209, para. 133 [Long Plain First Nation]; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148, 474 N.R. 350, para. 56 [Yellowknives Dene First Nation].)
[40] For example, it has been said that to satisfy the duty, consultation must be “reasonable” (Haida Nation, paras. 62-63, 68; Gitxaala Nation, paras. 8, 179, 182-185; TWN 2018, paras. 226, 508-509; Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, para. 31 [Squamish First Nation]). “Reasonable” consultation means Canada must show that it has considered and addressed the rights claimed by Indigenous peoples in a meaningful way (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, para. 41 [Clyde River]; Squamish First Nation, para. 37; Haida Nation, para. 42). “Meaningful” is a standard that also appears in the case law (Gitxaala Nation, paras. 179, 181, 231-234; TWN 2018, paras. 6, 494-501, 762; Haida Nation, paras. 10, 36, 42; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, paras. 2, 29 [Taku River]; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099, paras. 32, 44 [Chippewas of the Thames]).
[41] So what do the words “reasonable” and “meaningful” mean in this context? The case law is replete with indicia, such as consultation being more than “blowing off steam” (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 54 [Mikisew 2005]), the Crown possessing a state of open-mindedness about accommodation (Gitxaala Nation, para. 233), the Crown exercising “good faith” (Haida Nation, para. 41; Clyde River, paras. 23-24; Chippewas of the Thames, para. 44), the existence of two-way dialogue (Gitxaala Nation, para. 279), the process being more than “a process for exchanging and discussing information” (TWN 2018, paras. 500-502), the conducting of “dialogue […] that leads to a demonstrably serious consideration of accommodation” (TWN 2018, para. 501) and the Crown “grappl[ing] with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns” (TWN 2018, para. 6). In cases like this where deep consultation is required, the Supreme Court has suggested the following non-binding indicia (Chippewas of the Thames, para. 47; Haida Nation, para. 44; Squamish First Nation, para. 36; see also Yellowknives Dene First Nation, para. 66):
the opportunity to make submissions for consideration;
formal participation in the decision-making process;
provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision; and
dispute resolution procedures like mediation or administrative regimes with impartial decision-makers.
[42] Examples and indicia in the case law are nothing more than indicators. The Supreme Court, while providing us with many of these indicia, has made it clear that what will satisfy the duty will vary from case to case, depending on the circumstances (Haida Nation, para. 45). So where do we get guidance?
[43] The Supreme Court has identified the concepts that animate the duty. In its view, the “controlling question” as to what is “reasonable” or “meaningful” consultation is “what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake” (Haida Nation, para. 45).
[44] The Supreme Court’s most recent discussion of the honour of the Crown appears in paragraphs 21 and 22 of the majority reasons in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 [Mikisew 2018]:
[The honour of the Crown] recognizes that the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples creates a special relationship that requires that the Crown act honourably in its dealings with Aboriginal peoples (Manitoba Metis, at para. 67; B. Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 436).
The underlying purpose of the honour of the Crown is to facilitate the reconciliation of these interests (Manitoba Metis, at paras. 66-67). One way that it does so is by promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24). This endeavour of reconciliation is a first principle of Aboriginal law.
[45] However, the precise content of the honour of the Crown also turns on the circumstances of the particular case (Mikisew 2018, para. 24):
[T]his Court has made clear that the duties that flow from the honour of the Crown will vary with the situations in which it is engaged (Manitoba Metis, at para. 74). Determining what constitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on the circumstances (Haida Nation, at para. 38; Taku River, at para. 25; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at paras. 36-37).
[46] Further on in Mikisew 2018, the Court identified consultation as a requirement that flows from the honour of the Crown. Consultation is connected to the honour of the Crown because it is not honourable for Canada to act unilaterally in a way that could affect the rights of Indigenous peoples, without first engaging in meaningful consultation (Mikisew 2018, para. 25):
The duty to consult is one such obligation. In instances where the Crown contemplates executive action that may adversely affect s. 35 rights, the honour of the Crown has been found to give rise to a justiciable duty to consult (see e.g. Haida Nation, Taku River, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, and Little Salmon). This obligation has also been applied in the context of statutory decision-makers that—while not part of the executive—act on behalf of the Crown (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 29). These cases demonstrate that, in certain circumstances, Crown conduct may not constitute an “infringement” of established s. 35 rights; however, acting unilaterally in a way that may adversely affect such rights does not reflect well on the honour of the Crown and may thus warrant intervention on judicial review.
[47] The other controlling concept is reconciliation. The best description of reconciliation to date appears in the following passage from Beckman (para. 10):
The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982. The modern treaties, including those at issue here, attempt to further the objective of reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginal and non-Aboriginal communities. Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past. Still, as the facts of this case show, the treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract. The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards.
[48] Reconciliation must nonetheless begin by looking back and developing a deep understanding of the centuries of neglect and disrespect toward Indigenous peoples, well-summarized in a number of reports and studies (see, e.g., Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996); Truth and Reconciliation Commission, Honouring the truth, reconciling for the future: summary of the final report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Commission, 2015)). Too often decisions affecting Indigenous peoples have been made without regard for their interests, dignity, membership and belonging in Canadian society, with terrible neglect and damage to their lives, communities, cultures and ways of life. Worse, almost always no effort was made to receive their views and try to accommodate them—quite the opposite. The duty to consult is aimed at helping to reverse that historical wrong.
[49] Reconciliation also looks forward. It is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that while majorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered and rejected only after informed reflection and for good reason. This is a recognition that in the end, we all must live together and get along in a free and democratic society of mutual respect.
[50] Reconciliation in this sense is about relationship (Mark Walters, “The Jurisprudence of Reconciliation: Aboriginal Rights in Canada” in Will Kymlicka & Bashir Bashir, eds, The Politics of Reconciliation in Multicultural Societies (New York: Oxford University Press, 2008) 165, p. 168):
Reconciliation as relationship […] is always […] reciprocal, and […] invariably involves sincere acts of mutual respect, tolerance, and goodwill that serve to heal rifts [and includes] facing past evil openly, acknowledging its hurtful legacies, and affirming the common humanity of everyone involved. [It] is about peace between communities divided by conflict, but it is also about establishing a sense of self-worth or internal peace within those communities.
[51] The process of meaningful consultation can result in various forms of accommodation. But the failure to accommodate in any particular way, including by way of abandoning the Project, does not necessarily mean that there has been no meaningful consultation.
[52] Moreover, the fact that consultation has not led the four applicants to agree that the Project should go ahead does not mean that reconciliation has not been advanced. The goal is to reach an overall agreement, but that will not always be possible (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, paras. 83, 114 [Ktunaxa Nation]). The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome.
[53] Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists (Haida Nation, paras. 62-63, citing R. v. Nikal, [1996] 1 S.C.R. 1013, 133 D.L.R. (4th) 658, para. 110; Chippewas of the Thames, para. 59; Ktunaxa Nation, para. 83; R v. Marshall, [1999] 3 S.C.R. 533, 179 D.L.R. (4th) 193, para. 43; Gitxaala Nation, para. 179; TWN 2018, para. 494; Yellowknives Dene First Nation, para. 56). At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.
[54] Some important ramifications arise from this. First, imposing too strict a standard of “perfection”, “reasonableness” or “meaningfulness” in assessing whether the duty to consult has been adequately met would de facto create a veto right.
[55] Second, the case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it (Haida Nation, para. 42; Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58, 408 D.L.R. (4th) 201, para. 65 [Prophet River BCCA]; Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1, para. 161; Ahousaht First Nation, paras. 52-53; Long Plain First Nation, paras. 158-63; R. v. Douglas et al., 2007 BCCA 265, 278 D.L.R. (4th) 653, para. 39). Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent with reconciliation and would, if tolerated, allow for the effective use of a veto right.
[56] Reconciliation as relationship can only be advanced through consultation when the respective parties commit to the process, avoid counterproductive tactics, get to the substance of the issues of concern and exercise good faith—Indigenous peoples by communicating their concerns in the clearest possible way and the Crown by listening to, understanding and considering the Indigenous peoples’ points with genuine concern and an open mind throughout. Only then can the process lead to accommodations that respond to the concerns of the Indigenous peoples.
[57] When adequate consultation has taken place but Indigenous groups maintain that a project should not proceed, their concerns can be balanced against “competing societal interests”. This is the role of accommodation (Chippewas of the Thames, paras. 59-60; Haida Nation, para. 50; TWN 2018, para. 495).
[58] Like consultation, accommodation does not guarantee outcomes. It is an ongoing “give and take” process. One way to accommodate is to impose conditions on a project proponent, such as ongoing participation of Indigenous groups (see, e.g., Chippewas of the Thames, para. 57; TWN 2018, para. 637). Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups (Chippewas of the Thames, para. 60; Haida Nation, paras. 48-49; Ktunaxa Nation, para. 114).
[59] The duty to accommodate requires Canada to “balance Aboriginal concerns reasonably with the potential impact […] on the asserted right or title and with other societal interests” (Haida Nation, para. 50). Canada can assign this balancing task to an administrative agency, as it has done in part in this case, to the NEB. As well, in this case, section 54 of the NEB Act permits the Governor in Council to weigh all the considerations.
(3) Relevance of post-approval consultation
[60] Contrary to what the applicants assert, post-approval consultation is both relevant and important. The duty to consult is owed by the Crown and the honour of the Crown is always in play.
[61] The Governor in Council’s decision speaks extensively to the fact that consultation is an ongoing process (see in this respect the Explanatory Note). Further consultation will take place, for example, in connection with the CER’s future determination of routing and permits. The certainty of further consultations and the certainty of the terms on which they will be conducted are factual elements that the Governor in Council was entitled to take into account when making its decision. Even if Canada’s consultation and accommodation measures up to June 18, 2019 were found to be inadequate, consultation activities that took place after the issuance of the Order in Council would remain relevant. Sending the decision back to the Governor in Council yet again for reconsideration would be pointless if the inadequacies have since been