This morning the Federal Court of Appeal (2018 FCA 153) quashed the federal government's Order in Council approving the TransMountain Expansion project. The court's reasons are summarized in the following four paragraphs from its decision:
[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.
The McLennan Ross Environmental and Energy Regulatory Practice Group is reviewing and analyzing the court's decision and will post additional comment soon.
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