Case Brief: Tsleil-Waututh v. Canada (Attorney General), 2018 FCA 153

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Case Brief: Tsleil-Waututh v. Canada (Attorney General), 2018 FCA 153

Federal Court of Appeal decision released August 30, 2018 regarding Trans Mountain pipeline

Tsleil-Waututh is the second grand slam decision from the Federal Court of Appeal (the “FCA”) quashing an Order in Council that approved a pipeline on the basis that the Government of Canada failed to adequately consult with affected First Nations.

At 776 paragraphs, Tsleil-Waututh is a physically huge decision in which the court affirms its 2016 decision in Gitxaala Nation v. Canada [Gitxaala Nation v. Canada, 2016 FCA 187] and breathes life into the requirement for “meaningful two-way dialogue” in consultation.

The FCA found that Canada acted in good faith and selected an appropriate consultation framework regarding the proposed expansion of the Trans Mountain pipeline system (the “Project”). However, at “Phase III”, the last phase of its consultation framework, Canada fell “well short of the mark” set by the Supreme Court of Canada and failed to “engage, dialogue meaningfully and grapple” with concerns expressed by affected First Nations. [Tsleil-Waututh, para 6] (It’s also worth noting that in Gitxaala, the FCA said the consultation fell “well short of the mark” at least six different times (Gitxaala, paras 8, 225, 230, 240, 327 and 337) and found Canada failed to “engage, dialogue, and grapple” with concerns (Gitxaala, para 279).)

Meaningful consultation requires talking to gain mutual understanding, and “testing and being prepared to amend policy proposals in the light of information received, and providing feedback”. [Tsleil-Waututh, paras. 499-507] Yet, in consultation meetings, if Canada’s representatives did provide a response, it was brief and did not further two-day dialogue. Where Canada’s responses were provided in writing, the responses were generic. [Tsleil-Waututh, paras. 756-757] There was no “genuine and sustained effort to pursue meaningful, two-way dialogue.” [Tsleil-Waututh, para. 756]

 Why this case matters

This the second case since 2016 where the FCA has quashed an Order in Council approving a pipeline because Canada failed to fulfill its duty to consult.

In Gitxaala, the FCA breathed life into the honour of the Crown: chastising Canada for failing to engage, dialogue and grapple with First Nations’ concerns. The court made it plain that the Crown must provide First Nations with Canada’s information and views on an Aboriginal group’s strength of claim so that all parties to consultation know what is on the table and where accommodations may be required.

In Tsleil-Waututh, the FCA breathes life into what “meaningful two-way dialogue” is required to fulfill the honour of the Crown. Crown representatives cannot just take notes. Someone attending must be able to respond meaningfully to the applicants’ concerns. If Aboriginal groups bring specific and focused concerns to Canada, then Canada’s response must be equally specific and focused.

The FCA emphasizes that the post-regulatory phase requires meaningful consultation (as it did in Gitxaala). In the past, the post-regulatory phase has been viewed as a pro-forma phase, in which there is no real need to listen to Indigenous groups or to contemplate serious changes or accommodation. This decision affirms that consultation must be meaningful at every step, and that substantive consultation is not over until the final decision is made.

The decision also provides a host of examples of behaviour that may thwart meaningful two-way dialogue. First Nations, Inuit and Métis will want to review these examples and use them to ensure that in consultation Canada is meeting the standards set by the FCA and the Supreme Court of Canada.