Law Times

Law Times • November 21, 2016 Page 9 www.lawtimesnews.com Nixed Canada's approval of Northern Gateway Pipeline Project Gitxaala clarifies Crown's consultation duties BY MICHAEL MCKIERNAN For Law Times E nvironmental lawyers say the Crown will have to step up its game to fulfil its duty to consult with Aboriginal Peoples after the Federal Court of Appeal nixed Canada's approval of the North- ern Gateway Pipeline Project. In its June 23 decision in Gitxaala Nation v. Canada, the 2-1 majority of the appeal court sent the case back to the government for reconsideration after concluding that its consul- tation efforts with several First Nations groups about the pipe- line's impact "fell well short of the mark." "What's been happening over the years is that the duty gets delegated effectively to the pro- ponents, and they end up pretty much doing it themselves. Then the Crown relies on the consul- tation reports of the proponent to show that the duty has been met," explains Julie Abouchar, a partner at Willms & Shier Envi- ronmental Lawyers LLP. "This decision brings the Crown back into play, by refo- cusing on what is expected from them when discharging their duty to consult," she adds. Robin Dean, who practises aboriginal law in the Vancou- ver office of Miller Thomson LLP, says the decision serves as a reminder that the Crown must remain engaged throughout the consultation process. Although the court found Canada had ex- ercised good faith and designed a good, reasonable framework for consulting with First Na- tions, it failed in the execution of that framework, particularly after the issuance of an environ- mental assessment that recom- mended the pipeline project go ahead. "The message of this deci- sion is that you can have the best-laid plans possible, but if you don't implement them in a way that allows for the purposes of consultation to be met, then the project is going to be chal- lenged and may end up not go- ing forward," Dean says. "The duty to consult is ultimately the Crown's, so they need to take their obligations seriously. They can delegate procedural but not substantive aspects of it." The project has been in the works since 2005, when North- ern Gateway approached the National Energy Board and the Canadian Environmental As- sessment Agency for permission to construct a 1,200-kilometre pipeline to carry oil from north- ern Alberta to the B.C. coast for export around the world. In 2006, a joint review panel was established between the two agencies to conduct an environ- mental assessment, but it was not until December 2013 that the panel finally issued a report concluding that the project was in the public interest and gave it the green light with numerous conditions. It was at this post-report stage, Phase IV of its plan for consulta- tion, that the Crown failed, ac- cording to the appeal court ma- jority. First Nations were given just 45 days to respond to the report with concerns, and the government then ignored their protestations that the deadlines were arbitrarily short. In addition, the Crown ap- peared unwilling to correct mis- statements of First Nations' con- cerns presented to the governor in council, even after they were pointed out by the aboriginal groups concerned, the appeal court ruled. The court also found fault with the lack of meaningful dialogue between First Nations groups and the representatives Canada sent to meet with them at this stage, who repeatedly emphasized the information- gathering nature of their task and their lack of decision- making authority. "Missing was any indica- tion of an intention to amend or supplement the conditions imposed by the Joint Review Panel, to correct any errors or omissions in its Report, or to provide meaningful feedback in response to the material con- cerns raised. Missing was a real and sustained effort to pursue meaningful two-way dialogue. Missing was someone from Canada's side empowered to do more than take notes, someone able to respond meaningfully at some point," Federal Appeal Court justices Eleanor Dawson and David Stratas wrote. And to cap it all, Canada re- neged on a promise from the environment minister to pro- vide First Nations with informa- tion about its assessment of the strength of their claims to rights and title, which in turn would affect the depth of consultations required between the parties. "This is another refocusing on the Crown," Abouchar says. "The Crown is in the best po- sition to do a claims analysis. The proponent doesn't have the resources or the way of think- ing to assess all the treaties and come to a conclusion about the strength of claims." Emphasizing that the level of consultation need not meet a standard of perfection, the Court of Appeal ruled the Crown still failed in its duty. Phase IV, the judges wrote, was supposed to address serious concerns about the project's effect on First Na- tions interests not considered by the joint review panel in its envi- ronmental assessment. "However, the Phase IV con- sultations did not sufficiently allow for dialogue, nor did they fill the gaps. In order to comply with the law, Canada's officials needed to be empowered to dia- logue on all subjects of genuine interest to affected First Nations, to exchange information freely and candidly, to provide expla- nations, and to complete their task to the level of reasonable fulfilment," they wrote. "Then recommendations, including any new proposed conditions, needed to be formulated and shared with Northern Gateway for input. And, finally, these rec- ommendations and any neces- sary information needed to be placed before the Governor in Council for its consideration. In the end, it has not been dem- onstrated that any of these steps took place." In dissenting reasons, Feder- al Appeal Court Justice Michael Ryer said he saw no reason to interfere with the government's approval for the project, con- sidering the duration, size and scope of the project. "It is my view that the alleged imperfections in the execution of the Phase IV consultations, which are stipulated in the Ma- jority Reasons, are insufficient to demonstrate that the Crown's consultation were inadequate," he wrote. Dean says all parties involved in projects that touch on First Nations' rights will need to take heed of the decision. "Proponents need to make sure they have robust consulta- tion frameworks, because they can't always rely on the federal and provincial Crown to take all the steps necessary to fulfil the duty to consult," she says. "This is not the only consultation case that has come out of an appeal court recently, and it's not going to be the only one in the near fu- ture. First Nations are asserting their rights more and more, with more and more favourable deci- sions coming out of the courts. People need to take note, look in the mirror and figure out wheth- er their efforts are enough." 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DARCY MERKUR | SLOAN MANDEL | DEANNA GILBERT Untitled-6 1 2016-11-14 3:31 PM Julie Anouchar says a recent decision has brought 'the Crown back into play, by refo- cusing on what is expected from them when discharging their duty to consult.' First Nations are asserting their rights more and more, with more and more favourable decisions coming out of the courts. Robin Dean

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