2018 FCA 153, 2018 FCA 153

A-78-17 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 2018 FCA 153 Tsleil-Waututh Nation, City of Vancouver, City of Burnaby, the Squamish Nation (also known as the Squamish Indian Band), Xàlek/Se k yú 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 ) v.

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 ) Indexed as: Tsleil-Waututh Nation v. Canada (Attorney General) Federal Court of Appeal, Dawson, de Montigny and Woods JJ.A.—Vancouver, October 2-5, 10, 12-13, 2017; Ottawa, August 30, 2018.

Aboriginal Peoples — Duty to consult — Judicial review of National Energy Board’s report recommending that Governor in Council approve proposed expansion of Trans Mountain pipeline system, of Governor in Council’s Order in Council P.C. 2016-1069 wherein Governor in Council directing Board to issue certificate of public convenience and necessity approving construction, operation of expansion project — Respondent Trans Mountain Pipeline ULC (Trans Mountain) owning existing pipeline system — Board assessing project pursuant to National Energy Board Act , s. 52 — Governor in Council satisfied that consultation process consistent with honour of Crown, that Aboriginal concerns, interests appropriately accommodated — Crown consultation broken down into four phases, including consideration by Governor in Council once in receipt of report (Phase III) — Board issuing number of decisions, including hearing order, “scoping” decision defining “designated project” to be assessed — Applicant Tsleil-Waututh Nation challenging hearing, scoping decisions — Several applicants arguing that Gitxaala Nation v.

Canada (Gitxaala) manifestly wrong in deciding that Board’s report not justiciable — Whether report of Board judicially reviewable — Whether Canada consulting adequately with Indigenous applicants — No error in Gitxaala warranting departure from its analysis — Project herein correctly assessed under legislative scheme analyzed in Gitxaala — Consultation framework reasonable — Canada not breaching duty to consult by selecting four-phase consultation process — However, Canada’s execution of Phase III unacceptably flawed, falling short of prescribed standard — Canada required to do more than receive, understand concerns of Indigenous applicants — Required to engage in considered, meaningful two-way dialogue — Canada’s representatives only listening, recording, transmitting Indigenous concerns — Meaningful dialogue prerequisite for reasonable consultation — Phase III allowing Indigenous applicants to dialogue with Canada — Canada not confined to Board’s findings — Reliance on Board’s process not allowing Canada to rely unwaveringly upon Board’s findings, recommended conditions — Canada required to dialogue meaningfully about concerns raised — Inadequacies of consultation process flowing from limited execution of Crown’ mandate — Canada unwilling to meaningfully discuss, consider flaws in Board’s findings — Order in Council P.C. 2016-1069 quashed — Certificate of public convenience and necessity rendered null — Project approval remitted to Governor in Council — Applications for judicial review of Board’s report dismissed; applications for judicial review of Order in Council P.C. 2016-1069 allowed.

Energy — National Energy Board report recommending that Governor in Council approve proposed expansion of Trans Mountain pipeline system, receiving direction from Governor in Council (Order in Council P.C. 2016-1069) to issue certificate of public

convenience and necessity approving construction, operation of expansion project — Board assessing project pursuant to National Energy Board Act , s. 52 — Several applicants arguing, inter alia, that Gitxaala Nation v.

Canada (Gitxaala) manifestly wrong in deciding that Board’s report not justiciable — Board breaching requirements of procedural fairness; failing to decide certain issues, alternatives to Westridge Marine Terminal — Whether report of Board judicially reviewable — Whether Governor in Council’s decision should be set aside, specifically, whether Governor in Council erring in determining that Board’s report qualifying as report; whether Board’s process procedurally fair — No error in Gitxaala warranting departure from its analysis — Not stated therein that only “decisions about legal or practical interests” reviewable — Project herein correctly assessed under legislative scheme analyzed in Gitxaala — Governor in Council required to consider deficiencies in report — If Governor in Council’s decision is based upon materially flawed report, decision may be set aside — Governor in Council can act only if “report” before it — Materially deficient report not such a report — Board report not justiciable — Judicial review applications challenging report dismissed — Duty of fairness not breached by Board’s decisions not to allow oral cross-examination, full oral hearing — Board not required to facilitate interested party’s independent assessment of project — Board’s approval process not contrary to legislative scheme — Approval process not impermissibly deferring determinations post-judgment — Principle of functus officio having less application to Board.

Environment — National Energy Board report recommending that Governor in Council approve proposed expansion of Trans Mountain pipeline system, receiving direction from Governor in Council (Order in Council P.C. 2016-1069) to issue certificate of public convenience and necessity approving construction, operation of expansion project — Board conducting environmental assessment under Canadian Environmental Assessment Act, 2012 — Applicants asserting, inter alia, that Board failing to assess project-related marine shipping under Canadian Environmental Assessment Act, 2012; erring in its treatment of Species at Risk Act — Whether Board erring by concluding that Species at Risk Act, s. 79 not applying in considering effects of project-related marine shipping — Board’s report adequate for purpose of informing Governor in Council about effects of project-related marine shipping on Southern resident killer whales, their use by Indigenous groups — Board erring by unjustifiably excluding project-related marine shipping from project’s description — Failure to apply s. 79 also unjustified — Board’s consideration of project’s impact on Southern resident killer whale not complying with s. 79 obligation — Board giving no consideration in report to fact recommending approval without measures to protect Southern resident killer whale — Governor in Council lacking necessary information to make decision — Board’s report not kind of “report” arming governor in Council with appropriate information.

Practice — Pleadings — Motion to Strike — National Energy Board report recommending that Governor in Council approve proposed expansion of Trans Mountain pipeline system, receiving direction from Governor in Council (Order in Council P.C. 2016-1069) to issue certificate of public convenience and necessity approving construction, operation of expansion project — Respondent Trans Mountain Pipeline ULC (Trans Mountain) owning existing pipeline system — Applicants commencing applications challenging Board’s report — Trans Mountain seeking to strike notices of application on basis that Court in Gitxaala Nation v.

Canada (Gitxaala) concluding applications for judicial review not lying against reports made pursuant to s. 52 — Applicants arguing Gitxaala wrongly decided on that point — Whether Trans Mountain’s motion to strike having merit — Motion to strike dismissed — Motions to strike unnecessarily delaying expeditious determination of application — Justice better served by allowing Court to deal with all issues raised by application.

Crown — Practice — National Energy Board report recommending that Governor in Council approve proposed expansion of Trans Mountain pipeline system, receiving direction from Governor in Council (Order in Council P.C. 2016-1069) to issue certificate of public convenience and necessity approving construction, operation of expansion project — Governor in Council complying with statutory obligation to give reasons — National Energy Board Act requiring only that Order in Council (Order) set out reasons — Not dictating form reasons should take — Here, reasons found in explanatory note accompanying Order — Unduly formalistic to set aside Order on ground reasons not found within “four square corners” of Order.

These were consolidated applications for judicial review of the respondent National Energy Board’s (Board) report recommending that the Governor in Council approve the proposed expansion of the Trans Mountain pipeline system, and of the Governor in Council’s Order in Council P.C. 2016-1069 wherein the Governor in Council directed the Board to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project.

The respondent Trans Mountain Pipeline ULC (Trans Mountain) owns and holds operating certificates issued by the Board for the existing Trans Mountain pipeline system. The proposed expansion consisted of, inter alia , twinning the existing pipeline system with new pipeline segments, new and modified facilities, including pump stations and tanks, and a new and expanded dock facility in Burnaby, British Columbia. 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.

Trans Mountain’s application for a certificate of public convenience and necessity in December 2013 triggered the Board’s obligation to assess the project pursuant to

section 52 of the National Energy Board Act . The Board was also required to conduct an environmental assessment under the Canadian Environmental Assessment Act, 2012 . The Board recommended approval of the project based on a number of findings, including that the project’s environmental protection procedures and mitigation measures would not likely cause significant adverse environmental effects, the likelihood of a spill would be very low and the project would be in the Canadian public interest.

The Governor in Council was satisfied that the consultation process undertaken was consistent with the honour of the Crown and that the Aboriginal concerns and interests were appropriately accommodated. The Governor in Council also accepted the Board’s recommendation that the project was required by present and future public convenience and necessity and that it would not likely cause significant adverse environmental effects.

There were four phases of Crown consultation: early engagement (Phase I), the Board hearing (Phase II), consideration by the Governor in Council once in receipt of the Board’s report (Phase III), and regulatory authorization (Phase IV). In April 2014, the Board issued a number of decisions setting the parameters of the project’s environmental assessment and establishing the hearing process for the project, including a hearing order which set out timelines and a process for the hearing, and a “scoping” decision wherein the Board defined the “designated project” to be assessed.

The applicant Tsleil-Waututh Nation challenged both the hearing order and the scoping decision, asserting, inter alia , that the Board erred in law by failing to include marine shipping activities in the project description. A number of the applicants commenced applications challenging the report of the Board. Trans Mountain sought orders striking the notices of application that challenged the Board’s report on the basis that in Gitxaala Nation v. Canada ( Gitxaala ), the Court concluded that applications for judicial review do not lie against reports made pursuant to

section 52 of the National Energy Board Act recommending whether a certificate of public convenience and necessity should issue for all or any portion of a pipeline. Several

applicants argued that Gitxaala was wrongly decided on that point and that the applications should not be struck on a preliminary basis. They further argued that the Court in Gitxaala determined that the decision of the Governor in Council cannot be considered in isolation from the Board’s report; it is for the Governor in Council to determine whether the process followed by the Board in assembling, analyzing, assessing, and studying the evidence before it was so deficient that its report does not qualify as a “report” within the meaning of the National Energy Board Act .

Those same applicants argued that Gitxaala was manifestly wrong in deciding that the Board’s report was not justiciable, and that Gitxaala is distinguishable because it dealt with

section 38 of the Canadian Environmental Assessment Act, 2012 , a provision that had no application to the process at issue here. The applicants asserted that the Board breached the requirements of procedural fairness; failed to decide certain issues before it recommended approval of the project; failed to consider alternatives to the Westridge Marine Terminal; failed to assess project-related marine shipping under the Canadian Environmental Assessment Act, 2012 ; and erred in its treatment of the Species at Risk Act .

The effect of each of these errors was said to render the Board’s report materially deficient such that it was not a “report” that the Governor in Council could rely upon. The main issues were whether Trans Mountain’s motion to strike had merit, whether the report of the Board could be judicially reviewed, and whether the decision of the Governor in Council should be set aside on administrative law grounds.

This last issue required the Court to consider whether, inter alia , the Governor in Council erred 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; whether the Board’s process was procedurally fair; whether the Board erred 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; and whether the decision of the Governor in Council should be set aside on the ground that Canada failed to consult adequately with the Indigenous applicants. Held , the applications for judicial review of the Board’s report should be dismissed, the applications for judicial review of the Order in Council P.C. 2016-1069 should be allowed. Trans Mountain’s motion to strike the applications was dismissed. Motions to strike applications for judicial review are to be resorted to sparingly.

Judicial review proceedings are designed to proceed with celerity; motions to strike carry the potential to unduly and unnecessarily delay the expeditious determination of an application. Therefore justice is better served by allowing the Court to deal at one time with all of the issues raised by an application. This rationale was particularly applicable in the present case. The report of the Board could not be judicially reviewed. There was no error in the Gitxaala decision that merited departing from its analysis.

When the Court’s analysis in Gitxaala is read in its entirety, it is not stated therein that only “decisions about legal or practical interests” are reviewable and no such error was made. In Gitxaala , the Court found that the only action to carry legal consequences was the decision of the Governor in Council: the environmental assessment conducted under the Canadian Environmental Assessment Act, 2012 did not affect legal rights or carry legal consequences. Instead, the assessment played “no role other than assisting in the development of recommendations submitted to the Governor in Council”.

The same could be said of the balance of the report prepared pursuant to the requirements of the National Energy Board Act . Sections 29 through 31 of the Canadian Environmental Assessment Act, 2012 did not apply to the Northern Gateway project, and ought not to have been referenced by the Court in Gitxaala in its analysis of the legislative scheme. These provisions, without doubt, applied to the project at issue in these proceedings. Therefore, the project was to be assessed under the legislative scheme analyzed in Gitxaala . It followed that Gitxaala could not be meaningfully distinguished.

The analysis in Gitxaala was based upon a proper understanding of the legislative scheme, notwithstanding the Court’s reference to sections 29 and 31 of the Canadian Environmental Assessment Act, 2012 instead of the applicable provisions. The error was in no way material to the Court’s analysis of the respective roles of the Joint Review Panel, which prepared the report to the Governor in Council, and the Governor in Council, which received the panel’s recommendations and made the decisions required under the legislative scheme.

The Governor in Council is required to consider any deficiency in the report submitted to it. If the decision of the Governor in Council is based upon a materially flawed report, the decision may be set aside on that basis. The Governor in Council can act only if it has a “report” before it. A materially deficient report, such as one that falls short of legislative standards, is not such a report. The report of the National Energy Board was not justiciable. The Board did not breach any duty of procedural fairness. The content of the duty of fairness owed by the Board to the parties was significant.

The parties were entitled to a meaningful opportunity to present their cases fully and fairly, including the right to effectively challenge evidence that contradicted that case. The contextual factors enumerated in Baker v. Canada (Minister of Citizenship and Immigration) ( Baker ) were applied to determine whether the absence of oral cross-examination was inconsistent with the participatory rights required by the duty of fairness. The nature of the Board’s decision is different from a judicial decision and points in favour of more relaxed requirements under the duty of fairness.

There was no basis for a legitimate expectation that oral cross-examination would be permitted. Such an expectation would be contrary to the Board’s right to determine that an application be reviewed wholly in writing. The Board’s choice of procedure, while not determinative, must be given some respect, particularly where the legislation gives the Board broad leeway to choose its own procedure, and the Board has experience in deciding appropriate hearing procedures.

Overall, while the importance of the decision and the lack of a statutory appeal pointed to stricter requirements under the duty of fairness, the other factors pointed to more relaxed requirements. Balancing these factors, the duty of fairness was significant. Nevertheless, the duty of fairness was not breached by the Board’s decisions not to allow oral cross-examination and not to allow a full oral hearing.

The applicant City of Burnaby’s desire to be able to independently review and assess the validity of the assessment of alternatives to the expansion of the Westridge Marine Terminal, was inconsistent with the regulatory scheme enacted by Parliament. The Board is not required to facilitate an interested party’s independent review and assessment of a project. The Board’s expertise extends to the full range of risks inherent in the operation of a pipeline, including the risks raised by the City of Burnaby.

The Board’s reasons adequately allowed the Court to understand why the Board rejected the City of Burnaby’s evidence and why it imposed the conditions it did. The Board’s approval process was not shown to be contrary to the legislative scheme. Nor was it demonstrated that the approval process impermissibly deferred determinations post-judgment. Courts cannot determine issues after a final judgment is rendered because of the principle of functus officio .

While this principle has some application to administrative decision makers it has less application to the Board whose mandate is ongoing to regulate through a project’s entire lifecycle. Given the Board’s approach to the assessment of project-related marine shipping and its findings, the Board’s report was adequate for the purpose of informing the Governor in Council about the effects of project-related marine shipping on the Southern resident killer

whales and their use by Indigenous groups. The Order in Council and its accompanying Explanatory Note demonstrated that the Governor in Council was fully aware of the manner in which the Board assessed project-related marine shipping under the National Energy Board Act . The Board acknowledged its obligations under

section 79 of the Species at Risk Act in the course of its environmental assessment. However, the Board unjustifiably excluded project-related marine shipping from the project’s description. It follows that the failure to apply

section 79 to its consideration of the effects of project-related marine shipping on the Southern resident killer whale was also unjustified. The Board’s consideration of the project’s impact on the Southern resident killer whale did not substantially comply with its obligation under

section 79. The Board was obliged to consider the consequences at law of its inability to “ensure” that measures were taken to ameliorate the project’s impact on the Southern resident killer whale. However, the Board gave no consideration in its report to the fact that it recommended approval of the project without any measures being imposed to avoid or lessen the project’s significant adverse effects upon the Southern resident killer whale. In order to substantially comply with

section 79, the Governor in Council required the Board’s exposition of all technically and economically feasible measures that were available. Without this information the Governor in Council lacked the necessary information to make the decision required of it. The Board erred by unjustifiably excluding project-related marine shipping from the project’s definition. It was this exclusion that permitted the Board to conclude that

section 79 of the Species at Risk Act did not apply to its consideration of the effects of project-related marine shipping. This resulted in successive deficiencies such that the Board’s report was not the kind of “report” that would arm the Governor in Council with the information and assessments it required to make its public interest determination and its decision about environmental effects and their justification. The Governor in Council complied with its statutory obligation to give reasons.

Subsection 54(2) of the National Energy Board Act does not dictate the form the Governor in Council’s reasons should take, requiring only that the “order must set out the reasons”. Orders in Council are not well-suited to the provision of lengthy reasons. In the present case, the two-page Order in Council was accompanied by a 20-page explanatory note. Given this joint publication, it would be unduly formalistic to set aside the Order in Council on the ground that the reasons found in the attached explanatory note were placed in an attachment to the order, and not within the “four square corners” of the order.

The consultation framework selected by Canada was reasonable. The duty to consult is grounded in the honour of the Crown and the protection provided for “existing aboriginal and treaty rights” in subsection 35(1) of the Constitution Act, 1982 . Canada did not act in breach of the duty to consult by selecting the four-phase consultation process it adopted. The Board’s process was adequate for fulfilling its consultation obligations. The consultation process for this project was generally well-organized.

However, Canada’s execution of Phase III of the consultation process was unacceptably flawed and fell short of the standard prescribed by the case law of the Supreme Court. As such, the consultation process fell short of the required mark for reasonable consultation. Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue. Canada’s ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate.

For the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision makers. The record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. Meaningful dialogue is a prerequisite for reasonable consultation.

Phase III was a critically important part of the consultation framework for a number of reasons, including that it was the first opportunity for the Indigenous applicants to dialogue directly with Canada about matters of substance, not process. A review of the correspondence exchanged in Phase III did not disclose sufficient meaningful response to, or dialogue about, the various concerns raised by the Indigenous applicants. Canada was obliged to do more than passively hear and receive the real concerns of the Indigenous applicants. Canada’s position that it was confined to the Board’s findings was wrong.

Canada can rely on the Board’s process to fulfil, in whole or in part, the Crown’s duty to consult. However, reliance on the Board’s process does not allow Canada to rely unwaveringly upon the Board’s findings and recommended conditions. When real concerns were raised about the hearing process or the Board’s findings and recommended conditions, Canada was required to dialogue meaningfully about those concerns.

When considering whether Canada has fulfilled its duty to consult, the Governor in Council necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the Board to issue. The consequence of Canada’s erroneous position that the Governor in Council lacked the ability to impose additional conditions on Trans Mountain seriously and inexplicably limited Canada’s ability to consult meaningfully on accommodation measures. In conclusion, the inadequacies of the consultation process flowed from the limited execution of the mandate of the Crown consultation team.

Missing was someone representing Canada who could engage interactively. Canada was also unwilling to meaningfully discuss and consider possible flaws in the Board’s findings and recommendations and its erroneous view that it could not supplement or impose additional conditions on Trans Mountain. Canada is not to be held to a standard of perfection in fulfilling its duty to consult. However, the flaws thwarted meaningful, two-way dialogue. The result was an unreasonable consultation process that fell well short of the required mark.

Order in Council P.C. 2016-1069 was therefore quashed, rendering the certificate of public convenience and necessity approving the construction and operation of the project a nullity. The issue of project approval was remitted to the Governor in Council for prompt redetermination. In that redetermination, the Governor in Council must refer the Board’s recommendations and its terms and conditions back to the Board, or its successor, for reconsideration. Specifically, the Board ought to reconsider on a principled basis whether project- related shipping is incidental to the project, the application of

section 79 of the Species at Risk Act to project-related shipping, the Board’s environmental assessment of the project in the light of the project’s definition, the Board’s recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate. Further, Canada must re-do its Phase III consultation. Only after that consultation is completed and any accommodation made can the project be put before the Governor in Council for approval. STATUTES AND REGULATIONS CITED Canada Shipping Act, 2001 , S.C. 2001, c. 26.

Canadian Environmental Assessment Act , S.C. 1992, c. 37, ss. 37(1), (1.1) . Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 , ss. 2 “designated project”, 4(1), 5(1), 15(b), 19, 29, 30, 31, 38, 40, 52, 126(1).

Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18.1(1), 28. Fisheries Act, R.S.C., 1985, c. F-14. Indian Act, R.S.C., 1985, c. I-5, s. 2 “band”. Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19, s. 104. National Energy Board Act, R.S.C., 1985, c. N-7, ss. 8, 21, 22(1), 30(1), 36(1), 52, 53, 54, 55. National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208. Order in Council P.C. 2016-1069. Regulations Designating Physical Activities, SOR/2012-147, s. 4(3), Sch., s. 46.

Species at Risk Act, S.C. 2002, c. 29, ss. 6, 77, 79, Sch. I. Water Sustainability Act, S.B.C. 2014, c. 15. CASES CITED APPLIED: Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; HaidaNation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Baker v. Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Chippewas of the Thames First Nation v.Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099; Newfoundland and Labrador Nurses’ Union v.

Newfoundland andLabrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40,[2017] 1 S.C.R. 1069. CONSIDERED: National Energy Board – Ruling No. 14, Notices of motion from Ms. Robyn Allan and Ms. Elizabeth May to include cross-examination ofwitnesses - Trans Mountain Project, 7 May 2014; National Energy Board – Ruling No. 51, Request to establish new deadline foradditional information requests to Trans Mountain for intervenors receiving late participant funding decisions, 30 January 2015;Forestethics Advocacy v.

Canada (Attorney General), 2014 FCA 71, 390 D.L.R. (4th) 376; Air Canada v. Toronto Port Authority, 2011FCA 347, [2013] 3 F.C.R. 605; Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 387 N.R. 365; Councilof the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189, 376 D.L.R. (4th) 348; Canada (Citizenship and Immigration) v.Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80; CatalystPaper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Williams Lake Indian Band v.

Canada (Aboriginal Affairsand Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, 417 D.L.R. (4th) 239; Bergeron v. Canada (Attorney General), 2015 FCA160, 474 N.R. 366; Forest Ethics Advocacy Association v.

Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75;National Energy Board – Ruling No. 33, Motions to compel full and adequate responses to the first round of intervenor informationrequests, 26 September 2014; National Energy Board – Ruling No. 63, Motions to compel full and adequate responses to the secondround of intervenor information requests (IRs), 27 April 2015; National Energy Board – Ruling No. 96, Notices of motion regardingTrans Mountain’s reply evidence, 8 October 2015; Emera Brunswick Pipeline Company Ltd. (Re), 2008 LNCNEB 10 (QL). REFERRED TO: R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507, (1996), 137 D.L.R. (4th) 289; Tsleil-Waututh Nation v. Canada(National Energy Board), 2016 FCA 219, 2 C.E.L.R. (4th) 169; Odynsky v. League for Human Rights of B’Nai Brith Canada, 2009 FCA82, 387 N.R. 376; David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 (1994), 176N.R. 48 (C.A.); Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149; Alberta Wilderness Assn. v. Cardinal RiverCoals Ltd., (FC), [1999] 3 F.C. 425 (1999), 15 Admin.

L.R. (3d) 25 (T.D.); Friends of the West Country Assn. v.Canada (Minister of Fisheries and Oceans), (FCA), [2000] 2 F.C. 263 (1999), 169 F.T.R. 298 (C.A.); PembinaInstitute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, 80 Admin. L.R. (4th) 74; Grand Riverkeeper,Labrador Inc. v. Canada (Attorney General), 2012 FC 1520, 422 F.T.R. 299; Greenpeace Canada v. Canada (Attorney General), 2014FC 463, 455 F.T.R. 1, revd on appeal, 2015 FCA 186, 475 N.R. 247; Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194,[2011] 3 F.C.R. 344; Canada (Attorney General) v.

Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203; Mission Institutionv. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723, (1996), 137 D.L.R. (4th)648; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658; Unicity Taxi Ltd. v. Manitoba TaxicabBoard (1992), (MB KB), 80 Man. R. (2d) 241, [1992] 6 W.W.R. 35 (Q.B.), affd (1992), (MBCA), 83 Man. R. (2d) 305, [1992] M.J. No. 608 (QL) (C.A.); Canadian Parks and Wilderness Society v. Canada (Minister of CanadianHeritage), 2003 FCA 197, [2003] 4 F.C. 672; Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650;Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Cold Lake First Nations v.Alberta (Tourism, Parks and Recreation), 2013 ABCA 443 , 566 A.R. 259. AUTHORS CITED Canada Gazette,

Part 1, Vol. 50, No. 50, 10 December 2016.

Canadian Environmental Assessment Agency. Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 , March 2015. Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project , November 2016. National Energy Board. Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities , September 10, 2013. National Energy Board Report. Trans Mountain Expansion Project , May, 2016. Transport Canada.

TERMPOL Review Process Report on the Trans Mountain Expansion Project , 11 December 2014.

APPLICATIONS for judicial review of the National Energy Board’s (Board) report in dockets A-232-16, A-225-16, A-224-16, A-217- 16, A-223-16 and A-218-16 concerning the proposed expansion of the Trans Mountain pipeline system, and of the Governor in Council’s Order in Council P.C. 2016-1069 in dockets A-78-17, A-75-17, A-77-17, A-76-17, A-86-17, A-74-17, A-68-17 and A-84-17 wherein the Governor in Council directed the Board to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project.

Applications for judicial review of the Board’s report dismissed; applications for judicial review of the Order in Council P.C. 2016-1069 allowed. APPEARANCES Maxime Faille , Scott A. Smith and Paul Seaman for applicant Tsleil-Waututh Nation. Susan B. Horne , K. Michael Stephens and Rebecca Robb for applicant City of Vancouver. Gregory J. McDade, Q.C. and Michelle Bradley for applicant City of Burnaby. F. Matthew Kirchner , Emma K.

Hume and Michelle Bradley for applicants the Squamish Nation (also known as the Squamish Indian Band), Xàlek/Se k yú 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. Crystal Reeves and Elin Sigurdson for applicant Upper Nicola Band.

Jana McLean and Joelle Walker for applicants 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. Sarah D. Hansen and Megan Young for applicants 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. Margot Venton and Dyna Tuytel for applicants Raincoast Conservation Foundation and Living Oceans Society. Jan Brongers , Bruce Hughson , Dayna S.

Anderson , Liliane Bantourakis , Sarah Bird , Jon Khan and Ashley Caron for respondent Attorney General of Canada. Maureen Killoran, Q.C. , Olivia Dixon and Sean Sutherland for respondent Trans Mountain Pipeline ULC. Paul Johnston , Keith B. Bergner and Toby Kruger for respondent National Energy Board. Marta E. Burns and Doreen Mueller for intervener Attorney General of Alberta. Thomas R. Berger, O.C., Q.C. and Monique Pongracic-Speier, Q.C. for intervener Attorney General of British Columbia. SOLICITORS OF RECORD Gowling WLG (Canada) LLP , Vancouver, for applicant Tsleil-Waututh Nation.

Hunter Litigation Chambers , Vancouver, for applicant City of Vancouver. Ratcliff & Company LLP , North Vancouver, for applicants City of Burnaby. Ratcliff & Company LLP , North Vancouver, for applicants, the Squamish Nation (also known as the Squamish Indian Band), Xàlek/Se k yú 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. Mandell Pinder LLP , Vancouver, for applicant Upper Nicola Band.

Miller Titerle + Company LLP , Vancouver for applicants 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. Miller Thomson LLP , Vancouver, for applicants 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. Ecojustice , Calgary, for applicants Raincoast Conservation Foundation and Living Oceans Society.

Deputy Attorney General of Canada for respondent Attorney General of Canada.

Osler, Hoskin & Harcourt LLP , Calgary, for respondent Trans Mountain Pipeline ULC. National Energy Board Legal Services , Calgary, for respondent National Energy Board. Alberta Justice and Solicitor General , Edmonton, for intervener Attorney General of Alberta. Ministry of Justice , Victoria, for intervener Attorney General of British Columbia. The following are the reasons for judgment rendered in English by Dawson J.A. : Paragraph 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 [ Trans Mountain Expansion Project ] 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 13 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: i. Seymour Creek Reserve No. 2 (ch’ích’elxwi7kw) on the North shore close to the Westridge Marine Terminal; ii. Mission Reserve No. 1 (eslhá7an); and, iii. 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 170kilometres of the Stó:lō Collective applicants’ asserted traditional territory, beginning from an eastern point of entry near the CoquihallaHighway and continuing to the Burrard Inlet. [40] The Stó:lō possess established Aboriginal fishing rights on the Fraser River (R. v. Van der Peet, (SCC), [1996]2 S.C.R. 507, (1996), 137 D.L.R. (4th) 289).

The Crown assessed its duty to consult Stó:lō at the deeper end of the consultationspectrum. 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 2of the Indian Act. Upper Nicola and Syilx are an Aboriginal people within the meaning of

section 35 of the Constitution Act, 1982 andparagraph 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 thevicinity of Wilbur, Washington. It extends from the east near Kootenay Lake to the west to the Nicola Valley. Upper Nicola currentlyhas eight Indian Reserves within Upper Nicola’s/Syilx’s asserted territory.

The primary residential communities are Spaxomin, locatedon Upper Nicola Indian Reserve No. 3 on the western shore of Douglas Lake, and Quilchena, located on Upper Nicola Indian ReserveNo. 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 responsibilitywithin 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 heldcollectively by the Syilx, particularly within its area of responsibility in the asserted Syilx territory. The Crown assessed its duty toconsult 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.

TheSecwepemc Nation is comprised of seven large territorial groupings referred to as “Divisions”. The Stk’emlupsemc te SecwepemcDivision (SSN) is comprised of the Skeetchestn Indian Band and the Kamloops (or Tk’emlups) Indian Band. Both are bands within themeaning of

section 2 of the Indian Act. SSN’s members are also Aboriginal peoples within the meaning of

section 35 of the ConstitutionAct, 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 ofKamloops and has four reserves. Its total registered population is 533. The Tk’emlups Indian Band is located in the Kamloops area andhas six reserves. Its total registered population is 1 322.

Secwepemc Territory is asserted to be a substantial landmass which encompassesmany 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 350kilometres. Approximately 80 kilometres of the proposed pipeline right-of-way and two pipeline facilities, the Black Pines Station andthe 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 theconsultation 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 focusedprimarily 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 theNational Energy Board which recommended that the Governor in Council approve the Project and direct the Board to issue the necessarycertificate of public convenience and necessity; and, second, the decision of the Governor in Council to accept the recommendation ofthe 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 Siýam, 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 (CourtFile 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/Se k yú Siýam, 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” [paragraph 52(1)(a)]. [ 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” [paragraph 52(2)(e)]. [ 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 :

Definitions 2 (1) … designated project means one or more physical activities that (

a) are carried out in Canada or on federal lands; (

b) are designated by regulations made under paragraph 84(

a) or designated in an order made by the Minister under subsection 14(2); and (

c) are linked to the same federal authority as specified in those regulations or that order. It includes any physical activity that is incidental to those physical activities. ( projet désigné ) [ 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 h as 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: i. “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 ii. “direct the Board to dismiss the application for a certificate” ( paragraph 54(1) (

b) of the National Energy Board Act ); or iii. “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 the Minister.

The Governor in Council may, on the recommendation of the Minister, extend this time limit. [ 67 ] Additionally, once the National Energy Board as the responsible authority for the designated project has submitted its report with respect to the environmental assessment, pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012 , the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act , “decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment … that the designated project”: Governor in Council’s decision 31 (1) … (a) … (

i) is not likely to cause significant adverse environmental effects, (ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or (iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances; VI. The report of the National Energy Board

[ 68 ] On May 19, 2016, the Board issued its report which recommended approval of the Project. The recommendation was based on a number of findings, including: • With the implementation of Trans Mountain’s environmental protection procedures and mitigation measures, and the Board’s recommended conditions, the Project is not likely to cause significant adverse environmental effects. • However, effects from the operation of Project-related marine vessels would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species.

Southern resident killer whales are an endangered species that reside in the Salish Sea. Project-related marine shipping follows a route through the Salish Sea to the open ocean that travels through the whales’ critical habitat as identified in the Recovery Strategy for the Northern and Southern resident killer whales.

The Board’s [at page xii] finding was that “the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals.” • The likelihood of a spill from the Project or from a Project-related tanker would be very low in light of the mitigation and safety measures to be implemented.

However, the consequences of large spills could be high. • The Board’s recommendation and decisions with respect to the Project were consistent with subsection 35(1) of the Constitution Act, 1982 . • The Project would be in the Canadian public interest and would be required by the present and future public convenience and necessity. • If approved, the Board would attach 157 conditions to the certificate of public convenience and necessity.

The conditions dealt with a broad range of matters, including the safety and integrity of the pipeline, emergency preparedness and response and ongoing consultation with affected entities, including Indigenous communities. VII. The decision of the Governor in Council [ 69 ] On November 29, 2016, the Governor in Council issued the Order in Council, accepting the Board’s recommendation that the Project be approved and directing the Board to issue a certificate of public convenience and necessity to Trans Mountain. [ 70 ] The Order in Council contained a number of recitals, two of which are relevan

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