2016 FCA 187, 2016 FCA 187

[2016] 4 F.C.R. 418 A-437-14 (lead file), A-56-14, A-59-14, A-63-14, A-64-14, A-67-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14 2016 FCA 187 Gitxaala Nation, Gitga’at First Nation, Haisla Nation, The Council of the Haida Nation and Peter Lantin suing on his own behalf and on behalf of all citizens of the Haida Nation, Kitasoo Xai’xais Band Council on behalf of all members of the Kitasoo Xai’xais Nation and Heiltsuk Tribal Council on behalf of all members of the Heiltsuk Nation, Martin Louie, on his own behalf, and on behalf of Nadleh Whut’en and on behalf of the Nadleh Whut’en Band, Fred Sam, on his own behalf, on behalf of all Nak’azdli Whut’en, and on behalf of the Nak’azdli Band, Unifor, ForestEthics Advocacy Association, Living Oceans Society, Raincoast Conservation Foundation, Federation of British Columbia Naturalists carrying on business as BC Nature ( Applicants and Appellants ) v.

Her Majesty the Queen, Attorney General of Canada, Minister of the Environment, Northern Gateway Pipelines Inc., Northern Gateway Pipelines Limited Partnership and National Energy Board ( Respondents ) and The Attorney General of British Columbia, Amnesty International and The Canadian Association of Petroleum Producers (Interveners) Indexed as: Gitxaala Nation v. Canada Federal Court of Appeal, Dawson, Stratas and Ryer JJ.A.—Vancouver, October 1-2, 5-8, 2015; Ottawa, June 23, 2016.

Aboriginal Peoples — Duty to consult — Judicial review applications of Order in Council P.C. 2014-809 requiring National Energy Board (Board) to issue two Certificates of Public Convenience and Necessity (Certificates), on certain conditions, concerning Northern Gateway Project (Project) — Project, proposed by Northern Gateway Pipelines Inc., Northern Gateway Pipelines Limited Partnership (Northern Gateway), consisting of two pipelines transporting oil, condensate, related facilities — Also before Court five applications for judicial review of Report issued by review panel known as Joint Review Panel acting under Canadian Environmental Assessment Act, 2012 (CEAA, 2012), s. 52 , National Energy Board Act (NEBA); four appeals against Certificates issued by Board — All proceedings consolidated — Order in Council decision legally under review — Project significantly affecting several First Nations parties to proceedings — Project referred to review panel (Joint Review Panel) to be conducted jointly under NEBA, Canadian Environment Assessment Act (CEAA) — Joint Review Panel finding that Project in public interest, recommending issue of applied-for certificates subject to conditions — Following release of Joint Review Panel’s Report, process of consultation with Aboriginal groups entering Phase IV of consultation framework — When issuing Order in Council, Governor in Council agreeing with Joint Review Panel’s findings, recommendations, environmental conclusions contained in Report — Whether Canada fulfilling duty to consult with Aboriginal peoples — Per Dawson and Stratas JJ.A.: Governor in Council’s decision reasonable under administrative law principles — However, while NEBA, s. 54 not referring to duty to consult, in 2012, when Parliament enacting s. 54 in current form, duty to consult well- established — Very express language required to oust duty to consult — In executing Phase IV of consultation framework, Canada failing to make reasonable efforts to inform, consult — Canada’s execution of Phase IV consultation process unacceptably flawed; falling well short of mark — Execution thereof failing to maintain honour of Crown — As to timelines of consultation process, while Governor in Council subject to deadline for decision under NEBA, s. 54(3) , subsection allowing Governor in Council by order to extend deadline — No evidence in present case that Canada giving any thought to asking Governor in Council extension of deadline — Also, information put before Governor in Council not accurately portraying concerns of affected First Nations — Lack of meaningful dialogue taking place in Phase IV another concern — Based on totality of evidence examined, Canada failing in Phase IV to engage, dialogue, grapple with concerns expressed thereto in good faith by all applicant/appellant First Nations — As to adequacy of Canada’s reasons herein, Canada obliged at law under duty to consult, under NEBA, s. 54 to give reasons for decision directing Board to issue Certificates — Given circumstances in case, importance of claimed rights to Aboriginal groups, significance of potential infringement thereof, deep consultation required herein with written explanations to show Aboriginal groups’ concerns considered, to reveal impact concerns having on Governor in Council’s decision — Applications for judicial review of Order in Council P.C. 2014-809 allowed; appeals against Certificates allowed; applications for judicial review of Joint Review Panel Report dismissed — Per Ryer J.A. (dissenting): Order in Council should not be set aside on basis that Crown’s execution of Phase IV consultations inadequate to meet duty to consult — In context of overall Project-approval process, execution of Phase IV consultations adequate — Alleged imperfections stated by majority insufficient to demonstrate that Crown’s consultations inadequate — Also, no error in Governor in Council’s reasons warranting Court’s intervention.

Administrative Law — Judicial Review — Standard of Review — Judicial review of Order in Council P.C. 2014-809 requiring National Energy Board (Board) to issue two Certificates of Public Convenience and Necessity, on certain conditions, concerning Northern Gateway Project — What standard of review applying to Governor in Council’s decision — Standard of review of Governor in Council’s decision reasonableness since decision at issue constituting discretionary decision founded on widest considerations of policy, public interest.

Practice — Preliminary Determination of Question of Law — Consolidated proceedings brought before Court involving Northern Gateway Project in which Order in Council P.C. 2014-809 requiring National Energy Board (Board) to issue two Certificates of Public Convenience and Necessity (Certificates) — Included in consolidated proceedings five applications for judicial review of Report issued by Joint Review Panel acting under Canadian Environmental Assessment Act, 2012 (CEAA, 2012), s. 52 , National Energy Board Act (NEBA); four appeals from Certificates issued by National Energy Board — Joint Review Panel finding that Project in public interest — When issuing Order in Council, Governor in Council agreeing with Joint Review Panel’s findings, recommendations, environmental conclusions contained in Report — Whether applications for judicial review against Joint Review Panel Report lying; whether appeals against Board’s Certificates valid — Applications for judicial review brought against Report of Joint Review Panel not lying — No decisions about legal or practical interest made — Any deficiency in Report to be considered only by Governor in Council, not Court — Therefore, applications for judicial review dismissed — As for appeals against Certificates issued by Board, primary attack must be against Governor in Council’s Order in Council since Order in Council prompting automatic issuance of Board’s Certificates — Since Order in Council should be quashed, Certificates issued thereunder must also be quashed.

These were nine applications for judicial review of Order in Council P.C. 2014-809. That Order required the National Energy Board (Board) to issue two Certificates of Public Convenience and Necessity (Certificates), on certain conditions, concerning the Northern Gateway Project (Project). That Project, proposed by Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership (Northern Gateway), consists of two pipelines transporting oil and condensate and related facilities.

Also before the Court were five applications for judicial review of a Report issued by a review panel known as the Joint Review Panel acting under

section 52 of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012), and the National Energy Board Act (NEBA). The Governor in Council considered the Joint Review Panel’s Report when making its Order in Council. As well, four appeals of the Certificates issued by the National Energy Board were before the Court. All of these proceedings were consolidated. While three administrative acts — the Order in Council, the Report and the Certificates — were all subject to challenge, the Order in Council was the decision legally under review and the focus of the Court’s analysis.

The Northern Gateway Project consists of two 1 178 kilometre pipelines and associated facilities. One pipeline is intended to transport oil from Bruderheim, Alberta to Kitimat, British Columbia where the oil would be loaded onto tankers for delivery to export markets. The other pipeline would carry condensate removed from tankers at Kitimat to Bruderheim for distribution to Alberta markets. The associated facilities include both tank and marine terminals in Kitimat consisting of a number of oil storage tanks, condensate storage tanks, tanker berths and a utility berth.

The Project significantly affects a number of the First Nations who were parties to the proceedings. Other parties before the Court claimed a strong interest in the Project. The challenges associated with the approval process for the Project were immense. In 2005, Northern Gateway Pipeline submitted a preliminary information package to the National Energy Board and the Canadian Environmental Assessment Agency. In 2006, the Project was referred to a review panel to be conducted jointly under the NEBA and the Canadian Environment Assessment Act (CEAA).

The review panel was known as the Joint Review Panel because it had two tasks. First, it had to prepare a report under

section 52 of the NEBA for the consideration of the Governor in Council. Second, it was to conduct an environmental assessment of the Project and provide recommendations to the Governor in Council under

section 30 of the CEAA. In 2010, Northern Gateway filed an application requesting, inter alia , certificates from the Board for the Project. The Joint Review Panel’s hearings began in 2012. During that period, there were some legislative changes to the CEAA, which became the Canadian Environmental Assessment Act, 2012 and amendments were made to the NEBA. The joint review process for the Project was continued under these amended provisions. In December 2013, the Joint Review Panel issued a two-volume Report.

It found that the Project was in the public interest and recommended that the applied-for certificates be issued subject to 209 conditions. As well, it recommended that the Governor in Council conclude in particular that potential adverse environmental effects from the Project alone were not likely to be significant. Following the release of the Report, the process of consultation with Aboriginal groups entered Phase IV of the consultation framework whereby Northern Gateway engaged with over 80 different Aboriginal groups across various regions of Alberta and British Columbia.

In 2014, the Governor in Council issued the Order in Council at issue. Balancing all the competing considerations before it, the Governor in Council accepted the Joint Review Panel’s finding that the Project, if constructed and operated in full compliance with certain conditions, would be required by the present and future public convenience and necessity. It accepted the Panel’s recommendation and reached the same environmental conclusions as those outlined in the Report. Exercising its power under

section 54 of the NEBA , the Governor in Council directed the Board to issue Certificates of Public Convenience and Necessity to Northern Gateway for the Project in accordance with the terms and conditions set out in the Joint Review Panel’s Report. Later, the Board issued two Certificates to Northern Gateway: one for the oil pipeline and associated facilities and another for the condensate pipeline and associated facilities.

The consolidated proceedings taken together sought an order quashing the administrative decisions in this case because, under administrative law principles, they are unreasonable or incorrect. They also sought an order quashing the Order in Council and the Certificates because Canada did not fulfill its duty to consult with Aboriginal peoples concerning the project.

The main issues were whether the applications for judicial review of the Report of the Joint Review Panel could lie; whether the appeals against the Board’s Certificates were valid; what was the standard of review of the Governor in Council’s decision; and whether Canada fulfilled its duty to consult with Aboriginal peoples. Held (Ryer J.A. dissenting), the applications for judicial review of Order in Council P.C. 2014-809 should be allowed; the appeals against the Certificates should be allowed; the applications for judicial review of the Joint Review Panel Report should be dismissed.

Per Dawson and Stratas JJ.A.: Several parties brought applications for judicial review against the Report of the Joint Review Panel. Within this legislative scheme, those applications for judicial review did not lie. No decisions about legal or practical interests had been made. Under this legislative scheme, any deficiency in the Report of the Joint Review Panel was to be considered only by the Governor in Council, not the Court. Therefore, these applications for judicial review should be dismissed.

As for the notices of appeal against the Certificates issued by the Board, under this legislative regime, the primary attack must be against the Governor in Council’s Order in Council since it prompts the automatic issuance of the Certificates. If the Governor in Council’s Order in Council falls, then the Certificates issued by the Board automatically fall as a consequence. Since the Order in Council should be quashed, the Certificates issued as a result of the Order in Council must also be quashed.

The Governor in Council’s decision—the Order in Council—was the product of its consideration of recommendations made thereto in the Report. The decision was not simply a consideration of an environmental assessment. The recommendations made to the Governor in Council covered much more than matters disclosed by the environmental assessment—matters of a polycentric and diffuse kind. In conducting its assessment, the Governor in Council had to balance a broad variety of matters most of which were more properly within the realm of the executive.

By vesting decision-making in the Governor in Council, Parliament implicated the decision-making of Cabinet, a body of diverse policy perspectives representing all constituencies within government. And by defining broadly what can go into the report upon which it is to make its decision, Parliament must be taken to have intended that the decision in issue here be made on the broadest possible basis. The standard of review for decisions such as this (discretionary decisions founded upon the widest considerations of policy and public interest) is reasonableness.

The Governor in Council’s decision was reasonable under administrative law principles. The Governor in Council was entitled to assess the sufficiency of the information and recommendations it had received, balance all the considerations—economic, cultural, environmental and otherwise—and come to the conclusion it did. However, the analysis did not end there. While

section 54 of the NEBA does not refer to the duty to consult, in 2012, when Parliament enacted

section 54 in its current form, the duty to consult was well- established. Very express language would be required to oust the duty to consult. Under the current legislative scheme, the Governor in Council, when considering a project under the NEBA, must consider whether Canada has fulfilled its duty to consult. Further, in order to accommodate Aboriginal concerns as part of its duty to consult, the Governor in Council must necessarily have the power to impose conditions on any certificate it directs the National Energy Board to issue.

In determining whether the duty to consult was fulfilled in this case, the standard of whether reasonable efforts to inform and consult were made was applied. In executing Phase IV of its consultation framework, Canada failed to make reasonable efforts to inform and consult and in fact fell well short of the mark. The applicant/appellant First Nations alleged a number of flaws in the consultation process that rendered it inadequate.

While statements made by the then Minister of Natural Resources were a concern to some First Nation applicants who claimed that this showed bias, the outcome of the Governor in Council’s decision was not predetermined. The decision maker in this case was the Governor in Council and the decision whether to approve the Project was politically charged involving an appreciation of many sometimes conflicting considerations of policy and the public interest. The decision was not judicial or quasi-judicial.

Statements made by individual members of Cabinet will not establish bias unless the person alleging such bias demonstrates that the statements are the expression of a final opinion on the question at issue. Regarding the argument that the Crown consultation process was unilaterally imposed on the First Nations, as a matter of law, the Crown has discretion as to how it structures the consultation process and how the duty to consult is met. What is required is a reasonable process, not perfect consultation.

The evidence in this case established that from the outset Canada acknowledged its duty of deep consultation with all affected First Nations and there was consultation about Canada’s framework for consultation, which was reasonable and not unilaterally imposed. As to funding for participation in the Joint Review Panel and consultation process, the evidence failed to demonstrate that the funding available was so inadequate as to render the consultation process unreasonable.

Furthermore, the consultation process was not over-delegated and it was not unreasonable for Canada to integrate the Joint Review Panel process into the Crown consultation process. Canada did not inappropriately delegate its obligation to consult to the Joint Review Panel. The Joint Review Panel process provided affected Aboriginal groups with the opportunity to learn in detail about the nature of the Project and its potential impact on their interests while at the same time affording an opportunity to Aboriginal groups to voice their concerns.

Canada also did not fail to assess the strength of the First Nations’ claims, an assertion unsupported by the evidence, and was not obliged to share its legal assessment of the strength of claim. Additionally, four more concerns expressed by the applicant/appellant First Nations, which were overlapping and interrelated, focussed primarily on Canada’s execution of Phase IV of the consultation framework and were dealt with together. Canada’s execution of the Phase IV consultation process was unacceptably flawed and fell well short of the mark. Its execution thereof failed to maintain the honour of the Crown.

Phase IV was a very important part of the overall consultation framework. The Report of the Joint Review Panel covered only some of the subjects on which consultation was required. Its terms of reference were narrower than the scope of Canada’s duty to consult. In addition, there were deficiencies in the Joint Review Panel’s process relating to important assessments and determinations.

As for the status of the consultation process at the start of Phase IV, this was Canada’s first opportunity—and its last opportunity before the Governor in Council’s decision—to engage in direct consultation and dialogue with affected First Nations on matters of substance, not procedure, concerning the Project. Regarding Canada’s execution of the process of consultation under Phase IV, the argument that the timelines were arbitrarily short and insufficient to provide for meaningful consultation was addressed.

While the Governor in Council was subject to a deadline for decision under subsection 54(3) of the NEBA , that subsection allows the Governor in Council, by order, to extend that deadline. The importance and constitutional significance of the duty to consult provides ample reason for the Governor in Council, in appropriate circumstances, to extend the deadline. There was no evidence that Canada gave any thought to asking the Governor in Council to extend the deadline.

However, even if Canada did not want to ask the Governor in Council for an extension, a pre-planned, organized process of Phase IV consultation would have allowed Canada to receive in time all relevant views, discuss and consider them, provide any necessary explanations and, if appropriate, make suitable recommendations to the Governor in Council, including any further conditions to be added to any approval of the Project.

A further problem in Phase IV was that, in at least three instances, information was put before the Governor in Council that did not accurately portray the concerns of the affected First Nations. Canada was less than willing to hear the First Nations on this and to consider and, if necessary, correct the information. Also of significant concern was the lack of meaningful dialogue that took place in Phase IV. Based on the totality of the evidence examined, Canada failed in Phase IV to engage, dialogue and grapple with the concerns expressed to it in good faith by all of the applicant/appellant First Nations.

Missing in particular was any indication 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 concerns raised. Following the authorities of the Supreme Court of Canada on the duty to consult, during the Phase IV process, the parties were entitled to much more in the nature of information, consideration and explanation from Canada regarding the specific and legitimate concerns they put to Canada. For discussions during Phase IV to be fruitful and the dialogue to be meaningful, Canada had to share information concerning the strength of the affected First Nations’ claims to Aboriginal rights and title but this was never done.

It was not consistent with the duty to consult and the obligation of fair dealing for Canada to simply assert that the Project’s impact would be mitigated without first discussing the nature and extent of the rights that were to be impacted. While the consultation process was not a proper forum for the negotiation of title and governance matters, similar to other asserted rights, affected First Nations were entitled to a meaningful dialogue about the strength of their claim.

They were entitled to know Canada’s information and views concerning the content and strength of their claims so they would know and would be able to discuss with Canada what was in play in the consultations, the subjects on which Canada might have to accommodate and the extent to which Canada might have to accommodate. Canada’s failure to be candid on this point was legally unacceptable. Its failure frustrated the sort of genuine dialogue the duty to consult is meant to foster.

Regarding the adequacy of Canada’s reasons, in the present case, Canada was obliged at law to give reasons for its decision directing the Board to issue the Certificates. The source of this obligation was two-fold: where a requirement of deep consultation existed, the Crown was obliged to give reasons.

Additionally, subsection 54(2) of the NEBA requires that where the Governor in Council orders the Board to issue a certificate, the order “must set out the reasons for making the order.” Given the circumstances in this case, the importance of the claimed rights to Aboriginal groups and the significance of the potential infringement of those rights, this was a case where deep consultation required written explanations to show that the Aboriginal groups’ concerns were considered and to reveal the impact those concerns had on the Governor in Council’s decision.

Had the Phase IV consultation process been adequate, had the reasons given by Canada’s officials during the consultation process been adequate and had the Order in Council referred to and adopted, even generically, that process and the reasons given in it, the reasons requirement might have been met but that is not what happened. Here too Canada fell short of the mark. In conclusion, Canada offered only a brief, hurried and inadequate opportunity in Phase IV—a critical part of Canada’s consultation framework—to exchange and discuss information and to dialogue.

In order to comply with the law, Canada’s officials needed to be empowered to dialogue on all subjects of genuine interest to affected First Nations, to exchange information freely and candidly, to provide explanations, and to complete their task to the level of reasonable fulfilment. As a matter of law, the Governor in Council had to receive and consider any new information or new recommendations stemming from the concerns expressed by Aboriginal peoples during the consultation and, if necessary or appropriate, react.

In its Order in Council, the Governor in Council decided to acknowledge only the existence of consultations by others during the process but did not say more despite being required to provide reasons under

section 54 of the NEBA and under the duty to consult. The Governor in Council had to provide reasons to show that it fulfilled its legal obligation but did not do so. Therefore in Phase IV of the consultation process—including the execution of the Governor in Council’s role at the end of Phase IV—Canada fell short of the mark. Accordingly, the Order in Council had to be quashed and since the basis for the Board’s Certificates was a nullity, the Certificates were also a nullity and had to be quashed. The matter was remitted to the Governor in Council for redetermination.

Per Ryer J.A. (dissenting): The Order in Council should not be set aside on the basis that the Crown’s execution of the Phase IV consultations was inadequate to meet its duty to consult. In the context of the overall Project-approval process, the execution of the Phase IV consultations was adequate. The alleged imperfections in the execution of the Phase IV consultations, stipulated in the majority reasons, were insufficient to demonstrate that the Crown’s consultations were inadequate. There was also no error in the Governor in Council’s reasons that warranted the Court’s intervention.

In the Project-approval process, the Crown had the obligation to fulfil the duty to consult. Therefore, any obligation to explain why the duty to consult was adequately discharged rested with the Crown, not the Governor in Council. The Crown’s reasons for concluding that it had met its duty to consult were readily apparent. In conclusion, the duty to consult was met in the circumstances and the Governor in Council was correct in so acknowledging and therefore the Order in Council should stand. STATUTES AND REGULATIONS CITED Canada Evidence Act , R.S.C., 1985, c. C-5, s. 39.

Canadian Environmental Assessment Act , S.C. 1992, c. 37 (rep. by S.C. 2012, c. 19, s. 66 ), ss. 2 “designated project”, 30, 37. Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 , ss. 2 “designated project”, 5, 19, 29, 30, 31, 53. Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 9, 10, 13. Constitution Act, 1982 ,

Schedule B, Canada Act, 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1). Federal Courts Rules , SOR/98-106, r. 81.

Interpretation Act , R.S.C., 1985, c. I-21, s. 31(2). Jobs, Growth and Long-term Prosperity Act , S.C. 2012, c. 19. National Energy Board Act , R.S.C., 1985, c. N-7, ss. 2 “Minister”, 33 to 40, 52, 53, 54,

Part IV (58.5-72), 75, 77, 84, 87 to 103. Order in Council P.C. 2014-809. Order — Certificates of Public Convenience and Necessity OC-060 and OC-061 to Northern Gateway Pipelines Inc. for the Northern Gateway Pipelines Project ,

(2014) C. Gaz. I, 1645. TREATIES AND OTHER INSTRUMENTS CITED Gwaii Haanas Agreement, 1993.

Gwaii Haanas Marine Agreement, 2010. Haida Gwaii Strategic Land Use Agreement, 2007. Kunst’aa Guu-Kunst’aayah Reconciliation Protocol, 2009. Memoranda of Understanding with Canada for cooperative management and planning of the sGaan Kinghlas (Bowie Seamount). CASES CITED DISTINGUISHED: Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75; Council of the Innu ofEkuanitshit v. Canada (Attorney General), 2014 FCA 189, 376 D.L.R. (4th) 348. CONSIDERED: League for Human Rights of B’Nai Brith Canada v. Odynsky, 2010 FCA 307, sub nom.

League for Human Rights of B’nai Brith Canadav. Canada, [2012] 2 F.C.R. 312; Canada v. Kabul Farms Inc., 2016 FCA 143; Paradis Honey Ltd. v. Canada (Attorney General), 2015FCA 89, [2016] 1 F.C.R. 446; FortisAlberta Inc. v. Alberta (Utilities Commission), 2015 ABCA 295, 389 D.L.R. (4th) 1; Dr. Q v.College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Rio Tinto Alcan Inc. v. Carrier SekaniTribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),2004 SCC 74, [2004] 3 S.C.R. 550; Beckman v.

Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Imperial OilLtd. v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624; Halalt First Nation v. British Columbia (Minister ofEnvironment), 2012 BCCA 472, [2013] 1 W.W.R. 791. REFERRED TO: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada (Attorney General) v. Boogaard, 2015FCA 150, 87 Admin. L.R. (5th) 175; Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171; Budlakoti v. Canada(Citizenship and Immigration), 2015 FCA 139, 35 Imm.

L.R. (4th) 1; Rothmans of Pall Mall Canada Ltd. v. Minister of NationalRevenue, (FCA), [1976] 2 F.C. 500, (1976), 67 D.L.R. (3d) 505 (C.A.); Irving Shipbuilding Inc. v. Canada (AttorneyGeneral), 2009 FCA 116, [2010] 2 F.C.R. 488; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against ViolenceSociety, 2012 SCC 45, [2012] 2 S.C.R. 524; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R.(3d) 418; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada Trustco Mortgage Co. v. Canada,2005 SCC 54, [2005] 2 S.C.R. 601; Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Catalyst Paper Corp. v. NorthCowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3S.C.R. 895; Trinity Western University v. Law Society of Upper Canada, 2015 ONSC 4250, 126 O.R. (3d) 1; Canadian NationalRailway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Public Mobile Inc. v. Canada (Attorney General), 2011FCA 194, [2011] 3 F.C.R. 344; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997),151 D.L.R. (4th) 577; R. v.

Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612; Ontario v. Canadian Pacific Ltd., (SCC),[1995] 2 S.C.R. 1031, (1995), 125 D.L.R. (4th) 385; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212, 297D.L.R. (4th) 722; Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209; Yellowknives Dene First Nation v. Canada(Aboriginal Affairs and Northern Development), 2015 FCA 148, 93 C.E.L.R. (3d) 39; Hamlet of Clyde River v. TGS-NOPECGeophysical Company ASA (TGS), 2015 FCA 179, [2016] 3 F.C.R. 167; Old St. Boniface Residents Assn. Inc. v.

Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, (1990), 75 D.L.R. (4th) 385; Cold Lake First Nations v. Alberta (Tourism, Parks andRecreation), 2013 ABCA 443, 556 A.R. 259; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69,[2005] 3 S.C.R. 388; R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723, (1996), 137 D.L.R. (4th) 648.

AUTHORS CITED Canadian Environmental Assessment Agency. “Scope of the Factors – Northern Gateway Pipelines Project, Guidance for the assessmentof the environmental effects of the Northern Gateway Pipeline Project, as proposed by Northern Gateway Pipelines LimitedPartnership”, August 2009, online: <https://www.ceaa-acee.gc.ca/050/documents/44033/44033E.pdf>. Enbridge Northern Gateway Project Joint Review Panel.

Connections: Report of the Joint Review Panel for the Enbridge NorthernGateway Project, Volume 1 and Considerations: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume2, online: <http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprt-eng.html>. Enbridge Northern Gateway Project Joint Review Panel. “Decision Statement Issued under

Section 54 of the Canadian EnvironmentalAssessment Act, 2012 and Paragraph 104(4)(

b) of the Jobs, Growth and Long-term Prosperity Act”, online: <http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/dcsnsttmnt-eng.html>. O’Brien, A. and M. Bosc. House of Commons Procedure and Practice, 2nd ed. Cowansville: Éditions Yvon Blais, 2009. Vanderklippe, Nathan “Ottawa energy strategy targets diverse marketplace”, The Globe and Mail (July 18, 2011), online:<http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/ottawa-energy-strategy-targets-diverse-marketplace/article590827/>.

APPLICATIONS for judicial review of Order in Council P.C. 2014-809 requiring the National Energy Board to issue two Certificates ofPublic Convenience and Necessity concerning the Northern Gateway Project. APPEALS against the Certificates of Public Convenienceand Necessity issued by the National Energy Board. APPLICATIONS for judicial review of the Report issued by the Joint ReviewPanel, acting under the Canadian Environmental Assessment Act, 2012,

section 52 and the National Energy Board Act, and consideredby the Governor in Council when making Order in Council P.C. 2014-809. Applications for judicial review of Order in Council P.C.

2014-809 allowed; appeals against Certificates allowed; applications for judicial review of Joint Review Panel Report dismissed. Ryer J.A. dissenting. APPEARANCES Robert J. M. Janes , Q.C. , Elin R. S. Sigurdson , Virginia V. Mathers and Christopher J. Evans for applicant/appellant Gitxaala Nation. Michael Lee Ross , Grace A. Jackson and Benjamin Ralston for applicant/appellant Gitga’at First Nation. Jennifer Griffith , Allan Donovan and Mary Anne Vallianatos for applicant/appellant Haisla Nation.

Terri-Lynn Williams-Davidson , Michael Jackson , David Paterson and Elizabeth Bulbrook (articled student) for applicants/appellants The Council of the Haida Nation and Peter Lantin suing on his own behalf and on behalf of all citizens of the Haida Nation. Lisa C. Fong and Julia Hincks for applicants/appellants Kitasoo Xai’xais Band Council and Heiltsuk Tribal Council.

Cheryl Sharvit and Gavin Smith for applicants/appellants Martin Louie on his own behalf and on behalf of Nadleh Whut’en and on behalf of the Nadleh Whut’en Band, Fred Sam on his own behalf and on behalf of all Nak’azdli Whut’en and on behalf of the Nak’azdli Band. Steven Shrybman for applicant/appellant Unifor. Barry Robinson and Karen Campbell for applicants/appellants ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation. Chris D. Tollefson and Anthony Ho for applicant/appellant Federation of BC Naturalists carrying on business as BC Nature.

Jan Brongers , Ken Manning , Dayna S. Anderson , Liliane Bantourakis and Sarah Bird for respondents Her Majesty the Queen, Attorney General of Canada and the Minister of the Environment. E. David D. Tevender, Q.C. , Bernard J. Roth and Laura K. Estep for respondents Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership. Andrew R. Hudson for respondent National Energy Board. Angela Cousins for intervener Attorney General of British Columbia. Colleen Bauman and Justin Safayeni for intervener Amnesty International. Lewis L. Manning , Keith B.

Bergner and Toby Kruger for intervener Canadian Association of Petroleum Producers. SOLICITORS OF RECORD JFK Law Corporation , Vancouver, for applicant/appellant Gitxaala Nation. Michael Lee Ross , Vancouver, for applicant/appellant Gitga’at First Nation. Donovan & Company , Vancouver, for applicant/appellant Haisla Nation. White Raven Law Corporation , Surrey, British Columbia, for applicants/appellants The Council of the Haida Nation and Peter Lantin suing on his own behalf and on behalf of all citizens of the Haida Nation.

Ng Ariss Fong , Vancouver, for applicants/appellants Kitasoo Xai’xais Band Council and Heiltsuk Tribal Council. Mandell Pinder LLP , Vancouver, for applicants/appellants Martin Louie on his own behalf and on behalf of Nadleh Whut’en and on behalf of the Nadleh Whut’en Band, Fred Sam on his own behalf and on behalf of all Nak’azdli Whut’en and on behalf of the Nak’azdli Band. Goldblatt Partners LLP , Toronto, for applicant/appellant Unifor. Ecojustice, Calgary, for applicants/appellants ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation.

Environmental Law Centre, University of Victoria, Victoria, for applicant/appellant Federation of BC Naturalists carrying on business as BC Nature. Deputy Attorney General of Canada for respondents Her Majesty the Queen, Attorney General of Canada and the Minister of the Environment. Dentons Canada LLP , Calgary, for respondents Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership. National Energy Board , Calgary, for respondent National Energy Board. Ministry of Justice , Victoria, for intervener Attorney General of British Columbia.

Goldblatt Partners LLP , Ottawa, and Stockwoods LLP , Toronto, for intervener Amnesty International. Lawson Lundell LLP , Vancouver, for intervener Canadian Association of Petroleum Producers.

The following are the reasons for judgment rendered in English by [ 1 ] Dawson and Stratas JJ.A .: Before the Court are nine applications for judicial review of Order in Council P.C. 2014-809 [ Order — Certificates of Public Convenience and Necessity OC-060 and OC-061 to Northern Gateway Pipelines Inc. for the Northern Gateway Pipelines Project ,

(2014) C. Gaz. I, 1645]. That Order required the National Energy Board to issue two Certificates of Public Convenience and Necessity, [the Certificate] on certain conditions, concerning the Northern Gateway Project [the Project]. That Project, proposed by Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited Partnership, consists of two pipelines transporting oil and condensate and related facilities. [ 2 ] Also before the Court are five applications for judicial review of a Report issued by a review panel, known as the Joint Review Panel, acting under the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19,

section 52 and the National Energy Board Act , R.S.C., 1985, c. N-7, as amended. The Governor in Council considered the Joint Review Panel’s Report [cited below at paragraph 50] when making its Order in Council. [ 3 ] And also before the Court are four appeals of the Certificates issued by the National Energy Board. [ 4 ] All of these proceedings have been consolidated. These are our reasons for judgment in the consolidated proceedings.

In conformity with the order consolidating the proceedings, the original of these reasons will be placed in the lead file, file A-437-14, and a copy will be placed in each of the other files. [ 5 ] As seen above, three administrative acts—the Order in Council, the Report and the Certificates—are all subject to challenge. But, as explained below, for our purposes, the Order in Council is legally the decision under review and is the focus of our analysis. [ 6 ] Applying the principles of administrative law, we find that the Order in Council is acceptable and defensible on the facts and the law and is reasonable.

The Order in Council was within the margin of appreciation of the Governor in Council, a margin of appreciation that, as we shall explain, in these circumstances is broad. [ 7 ] However, the Governor in Council could not make the Order in Council unless Canada has also fulfilled the duty to consult owed to Aboriginal peoples. [ 8 ] When considering whether that duty has been fulfilled—i.e . , the adequacy of consultation—we are not to insist on a standard of perfection; rather, only reasonable satisfaction is required. Bearing in mind that standard, we conclude that Canada has not fulfilled its duty to consult.

While Canada exercised good faith and designed a good framework to fulfil its duty to consult, execution of that framework—in particular, one critical part of that framework known as Phase IV—fell well short of the mark. A

summary of our reasons in support of this conclusion can be found at paragraphs 325–332, below. [ 9 ] In reaching this conclusion, we rely to a large extent on facts not in dispute, including Canada’s own factual assessments and its own officials’ words. Further, in reaching this conclusion, we have not extended any existing legal principles or fashioned new ones.

Our conclusion follows from the application of legal principles previously settled by the Supreme Court of Canada to the undisputed facts of this case. [ 10 ] Thus, for the following reasons, we would quash the Order in Council and the Certificates that were issued under them. We would remit the matter back to the Governor in Council for prompt redetermination. [ 11 ] For the convenience of the reader, we offer an index to these reasons: A. The Project 12 B. The parties 17 C. The approval process for the Project 19

(1) Introduction 19

(2) The beginning 21

(3) The process gets underway 33

(4) The parties’ participation in the approval process 48

(5) The Report of the Joint Review Panel 50

(6) Consultation with Aboriginal groups: Phase IV 54

(7) The Order and the Certificates 59

(8) Future regulatory processes 67 D. Legal proceedings 68 E. Reviewing the administrative decisions following administrative law principles 74

(1) Introduction 74

(2) Preliminary issues 82 (

a) The standing of certain parties 82 (

b) The admissibility of affidavits 88

(3) The legislative scheme in detail 92 (

a) The report stage: the National Energy Board Act requirements 102 (

b) The report stage: the Canadian Environmental Assessment Act, 2012 requirements 108 (

c) Consideration by the Governor in Council 112

(4) Characterization of the legislative scheme 119

(5) Standard of review 128

(6) The Governor in Council’s decision was reasonable under administrative law principles 156 F. The duty to consult Aboriginal peoples 170

(1) Legal principles 170

(2) The standard to which Canada is to be held in fulfilling the duty 182

(3) The consultation process 187

(4) The alleged flaws in the consultation process 191 (

a) The Governor in Council prejudged the approval of the Project 192 (

b) The framework of the consultation process was unilaterally imposed upon the First Nations 201 (

c) Inadequate funding for participation in the Joint Review Panel and consultation processes 209 (

d) The consultation process was over-delegated 211 (

e) Canada either failed to conduct or failed to share with affected First Nations its legal assessment of the strength of their claims to Aboriginal rights or title 218 (

f) The Crown consultation did not reflect the terms, spirit and intent of the Haida Agreements 226 (

g) The Joint Review Panel Report left too many issues affecting First Nations to be decided after the Project was approved 230 (

h) The consultation process was too generic: Canada and the Joint Review Panel looked at First Nations as a whole and failed to address adequately the specific concerns of particular First Nations 230 (

i) After the Report of the Joint Review Panel was finalized, Canada failed to consult adequately with First Nations about their concerns and failed to give adequate reasons 230 (

j) Canada did not assess or discuss title or governance rights and the impact on those rights 230

(5) Conclusion 325 G. Remedy 333 H. Proposed disposition 342 A. The Project [ 12 ] The Northern Gateway Project consists of two 1 178 kilometer pipelines and associated facilities. One pipeline is intended to transport oil from Bruderheim, Alberta to Kitimat, British Columbia. At Kitimat, the oil would be loaded onto tankers for delivery to export markets.

The other pipeline would carry condensate removed from tankers at Kitimat to Bruderheim, for distribution to Alberta markets. [ 13 ] The associated facilities include both tank and marine terminals in Kitimat consisting of a number of oil storage tanks, condensate storage tanks, tanker berths and a utility berth. Kitimat would be a much busier place, with 190–250 tanker calls a year, some tankers up to 320 000 tons deadweight in size. [ 14 ] If built, the Project could operate for 50 years or more. [ 15 ] Behind the Project are Northern Gateway Pipelines Limited Partnership and Northern Gateway Pipelines Inc.

For the purposes of these reasons, it is not necessary to distinguish between the two and so the term “Northern Gateway” shall be used throughout for both or either. [ 16 ] Northern Gateway is not alone behind the Project. It has 26 Aboriginal equity partners representing almost 60 percent of the Aboriginal communities along the pipelines’ right-of-way, representing 60 percent of the area’s First Nations’ population and 80 percent of the area’s combined First Nations and Métis population.

Northern Gateway continues to discuss long term partnerships with a number of Aboriginal groups and expects that the number of equity partners will increase. B. The parties [ 17 ] The Project significantly affects a number of the First Nations who are parties to these proceedings. In no particular order, these parties are as follows: • Gitxaala Nation . Portions of the oil and condensate tanker routes for the Project are located within the Gitxaala’s asserted traditional territory.

The Gitxaala maintain that the tanker traffic resulting from the Project would affect its Aboriginal rights, including title and self-governance rights. Its main community, Lach Klan, is roughly 10 kilometres from the tanker routes. Also near the tanker routes are 15 of its reserves, several harvesting areas, traditional village sites, and spiritual sites. • Haisla Nation . A portion of the pipelines, the entire Kitimat Terminal and a portion of the tanker route are within territory claimed by the Haisla upon which they assert rights to hunt, fish, trap, gather, use timber resources and govern.

Canada accepted the Haisla’s comprehensive claim for negotiations decades ago and 20 years ago, Canada entered into a framework agreement with the Haisla for treaty negotiations. • Gitga’at First Nation . All ships coming or going from the Kitimat Terminal must pass through the Gitga’at’s asserted territory. They have 14 reserves along the proposed shipping route; indeed, the route is just two kilometres from the main Gitga’at community at Hartley Bay, British Columbia. • Kitasoo Xai’Xais Band Council.

This party is the body that governs the Kitasoo Xai’Xais Nation, a band of Aboriginal peoples comprised of the Tsimshian Kitasoo people and Heiltsuk language speaking Xai’Xais people. Their asserted territory includes a number of coastal islands and surrounding waters and mainland territory next to inlets and fjords. Tankers will cross their territory.

• Heiltsuk Tribal Council . This party governs the Heiltsuk Nation. The Heiltsuk Nation is a band of Aboriginal peoples amalgamated from five tribal groups located on the central coast of British Columbia. They assert a claim to 16 658 square kilometres of land and nearshore and offshore waters on the central coast of British Columbia. Their main community is Bella Bella, on Campbell Island. Tankers approaching Kitimat from the southern approach will travel through the Heiltsuk’s asserted territory. • Nadleh Whut’en and Nak’azdli Whut’en . They are part of the Yinka Dene or Dakelh people.

Yinka Dene means “people of the earth” or “people for the land”. Dakelh means “travellers on water”. They have a governance system founded in ancestral laws, key elements of which include the affiliation of Dakelh people with clans that include hereditary leaders, land and resource management territories known as “keyoh” or “keyah”, and a system of governance known as “bahlats” as an institution to govern the keyoh/keyah and clans. The pipelines would cross approximately 50 kilometres of the Nadleh’s asserted territory and cross 86 watercourses on their land, 21 of which are fish-bearing waters.

The pipelines would cross approximately 110 kilometres of the Nak’azdli’s asserted territory and cross 167 watercourses on their land, 60 of which are fish-bearing waters. A pumping station would also be located on the Nak’azdli’s asserted territory. The Nadleh and the Nak’azdli are members of the Carrier Sekani Tribal Council, whose comprehensive claim has been accepted by Canada for negotiation. • Haida Nation . The Haida Nation is the Indigenous Peoples of Haida Gwaii.

Haida Gwaii means “islands of the people”, and is an archipelago of more than 150 islands, extending roughly 250 kilometres, with roughly 4 700 kilometres of shoreline. No place is further than 20 kilometres from the sea. All proposed tanker routes go through or are next to the marine portion of the territory asserted by the Haida. In the southern portion of Haida Gwaii is Gwaii Haanas, a Haida protected area and national park reserve that contains a UNESCO World Heritage site called “SGang Gwaay” or “Nan Sdins”.

Northern Gateway identified nine ecosections and twelve oceanographic areas of significance for the Project and a number of these surround Haida Gwaii. [ 18 ] Other parties before the Court claim a strong interest in the Project: • ForestEthics Advocacy Association . This non-profit environmental protection society has a long history of advocating for changes in the extraction of natural resources, protecting endangered forests and wild places, educating and informing the public and working with governments and others in pursuit of these objectives. • Living Oceans Society .

This non-profit society advances science-based policy recommendations to achieve the conservation of oceans and the communities that depend upon them. It has been involved in researching and proposing policy for oil and gas development as it affects the marine environment. • Raincoast Conservation Foundation . This is a group of conservationists and scientists dedicated to protecting the lands, waters and wildlife of coastal British Columbia through peer-reviewed science and grassroots advocacy and the use of a full-time university lab, a research station and a research vessel. • B.C. Nature .

This is a federation of naturalists and naturalist clubs representing more than 5 000 people. It wishes to maintain the integrity of British Columbia’s ecosystems and rich biodiversity. To this end, it engages in public education and coordinates a science- based program that identifies, conserves and monitors a network of habitats for bird populations. • Unifor . This is a labour union that represents many energy and fisheries workers in Canada. The energy workers it represents are employed in oil and gas exploration, transportation, refining and conservation in petrochemical and plastics industries.

A number of its members work in production and refining facilities in Alberta and British Columbia that are to be served by the Project. The fisheries workers are located across Canada. On the west coast, Unifor represents commercial fishers and fish plant workers who rely on healthy fish stocks and fish habitats. C. The approval process for the Project

(1) Introduction [ 19 ] The challenges associated with the approval process for the Project were immense. Massive in size and affecting so many diverse groups and geographic habitats in so many different ways, the Project had to be assessed in a sensitive, structured, efficient, yet inclusive manner. [ 20 ] By and large—with the exception of certain aspects of Canada’s execution of the duty to consult, to which we return later in these reasons—the assessment and approval process was set up well and operated well. Given the challenges, this was no small achievement.

(2) The beginning [ 21 ] In late 2005, Northern Gateway Pipeline submitted a preliminary information package to the National Energy Board [Board] and the Canadian Environmental Assessment Agency [Canadian Environmental Assessment Agency or Agency]. [ 22 ] In early 2006, the Board, after consulting with various federal authorities, recommended that the Minister of the Environment refer the Project to a review panel.

In the autumn, the Minister of the Environment referred the Project to a review panel to be conducted jointly under the National Energy Board Act and the Canadian Environmental Assessment Act [S.C. 1992, c. 37]. That review panel was known as the Joint Review Panel because it had two tasks. First, it was to prepare a report under

section 52 of the National Energy Board Act for the consideration of the Governor in Council. Second, owing to the fact that the Project was a “designated project” within the meaning of

section 2 of the Canadian Environmental Assessment Act , the Joint Review Panel was to conduct an environmental assessment of the Project and provide recommendations to the Governor in Council under

section 30 of the Canadian Environmental Assessment Act . [S.C. 1992, c. 37] [ 23 ] The terms of reference for the Joint Review Panel needed to be settled. Those terms of reference were to appear in an agreement between the National Energy Board and the Minister of the Environment. In September 2006, the Canadian Environmental Assessment Agency released a draft of that agreement for comment. This was an opportunity for the public and, specifically, Aboriginal groups, to

provide their views. [ 24 ] The review process was paused in late 2006 at the request of Northern Gateway which wanted time to complete various commercially necessary tasks. Those tasks were completed by mid-2008 when Northern Gateway requested the review process resume. In particular, it requested that the draft agreement setting the terms for the Joint Review Panel be finalized. [ 25 ] Throughout this time, Aboriginal groups continued to have an opportunity to comment on the draft agreement.

And in late 2008- early 2009, the Canadian Environmental Assessment Agency specifically contacted Aboriginal groups to advise them about the Project and to inform them of opportunities to participate in proceedings before the Joint Review Panel and the related process of consultation with the Crown. Much more on this will be discussed below. [ 26 ] In February 2009, the Agency released the Government of Canada’s framework for consulting with Aboriginal groups regarding the Project.

This framework, found in a document entitled “Approach to Crown Consultation for the Northern Gateway Project”, outlined a comprehensive five phase consultation process: • Phase I: Preliminary Phase . During this phase, there would be consultation on the draft Joint Review Panel agreement and information would be provided to Aboriginal groups on the mandates of the National Energy Board and the Canadian Environmental Assessment Agency and the Joint Review Panel process. • Phase II: Pre-hearing Phase .

Information would be given to Aboriginal groups concerning the Joint Review Panel process and groups would be encouraged to participate in the process. • Phase III: The Hearing Phase . During this time, the Joint Review Panel would hold its hearings. Aboriginal groups would be encouraged to participate and to provide information to help the Joint Review Panel in its process and deliberations. During this phase, the Crown was to participate and to facilitate the process by providing expert scientific and regulatory advice. • Phase IV: The Post-Report Phase .

Following the release of the Report of the Joint Review Panel, the Crown was to engage in consultation concerning the Report and on any project-related concerns that were outside of the Joint Review Panel’s mandate. For this purpose, the Canadian Environmental Assessment Agency was to be the contact point. This was to take place before the Governor in Council’s decision whether certificates for the Project should be issued under

section 54 of the National Energy Board Act . • Phase V: The Regulatory/Permitting Phase . During this phase, further consultation was contemplated concerning permits and authorizations to be granted for the Project, if approved. [ 27 ] In February 2009, the Canadian Environmental Assessment Agency also released a new draft Joint Review Panel agreement, amended to respond to concerns raised during the initial comment period. A public comment period regarding the new draft agreement followed.

Although the public comment period closed in mid-April 2009, submissions and comments from Aboriginal groups continued to be accepted until August 2009. During this time, the Crown offered to meet with Aboriginal groups to discuss the draft Joint Review Panel agreement and how consultation with them would be carried out. In particular, the Gitga’at, the Gitxaala and the Haisla met with the Crown. [ 28 ] Near the end of 2009, the mandate of the Joint Review Panel and the process for the assessment of the Project began to be finalized.

The National Energy Board and all federal “responsible authorities” within the meaning of the Canadian Environment Assessment Act [ S.C. 1992, c. 37 ] signed an agreement entitled “Project Agreement for the Northern Gateway Pipelines Project in Alberta and British Columbia”. The Canadian Environmental Assessment Agency issued a document entitled “Scope of the Factors — Northern Gateway Pipeline Project, Guidance for the assessment of the environmental effects of the Northern Gateway Project”.

Finally, the Agency issued letters to certain Aboriginal groups providing all of these documents and a table setting out the consideration given to comments made by Aboriginal groups. [ 29 ] Shortly afterward, the Canadian Environmental Assessment Agency and the National Energy Board issued the “Agreement Between the National Energy Board and the Minister of the Environment concerning the Joint Review of the Northern Gateway Pipeline Project”.

In this agreement, Canada committed to a “whole of government” approach to Aboriginal engagement and consultation, including reliance, to the extent possible, on the consultation efforts of Northern Gateway and the Joint Review Panel. [ 30 ] Also appended to this agreement as an appendix were the terms of reference for the Joint Review Panel. These terms of reference included process requirements for the Joint Review Panel to follow during its review of the Project.

And in January 2010, in accordance with that agreement, the Minister of the Environment and the Chair of the National Energy Board appointed three persons to serve on the Joint Review Panel. [ 31 ] The National Energy Board also established a Joint Review Panel Secretariat working in concert with the Canadian Environmental Assessment Agency to provide support to the Joint Review Panel. [ 32 ] The Canadian Environmental Assessment Agency acted as Canada’s “Crown Consultation Coordinator” for the Project.

(3) The process gets underway [ 33 ] With these preliminary matters completed, the approval process formally began. [ 34 ] In May 2010, Northern Gateway filed an application requesting certificates from the National Energy Board for the Project, an order under

Part IV [sections 58.5 to 72] of the National Energy Board Act approving the toll principles for service on the pipelines and such further relief as required. [ 35 ] In July 2010, the Joint Review Panel issued its first procedural direction. It sought comment from the public, including Aboriginal groups, concerning a draft list of issues, the information that Northern Gateway should be required to file over and above that

submitted with its application, and locations for the Joint Review Panel’s oral hearings. To this end, the Joint Review Panel received written comments and received oral comments at hearings held at three locations. [ 36 ] The Joint Review Panel considered what it had heard and decided certain things. It required Northern Gateway to file additional information to address certain issues specific to the Project and certain risks posed by the Project. The Joint Review Panel stated that this information had to be provided before it could issue a hearing order.

It also revised the list of issues and commented on the locations for its hearings. [ 37 ] Staff for the Joint Review Panel conducted public information sessions between 2010 and July 2011 and online workshops from November 2011 to April 2013. By March 31, 2011, Northern Gateway submitted additional information in response to the Joint Review Panel’s decision. [ 38 ] In May 2011, the Joint Review Panel issued a hearing order.

In that order, it described the procedures to be followed in the joint review process and gave notice that the hearings would start on January 10, 2012. [ 39 ] Around the same time, the Crown consulted with representatives of some of the Aboriginal groups who are applicants/appellants in these proceedings, including the Gitga’at, the Gitxaala, the Haida, the Haisla and the Heiltsuk.

Also in 2011, a number of Aboriginal groups, including most of the Aboriginal groups who are parties to these proceedings, and a number of public interest groups registered to intervene in the proceedings before the Joint Review Panel. [ 40 ] A number of government agencies—Natural Resources Canada, Aboriginal Affairs and Northern Development Canada, Fisheries and Oceans Canada, the Canadian Coast Guard, Transport Canada, and Environment Canada—also registered as government participants in the proceedings.

All interveners and government agencies had to file written evidence with the Joint Review Panel by one week before the start date for the hearings. [ 41 ] Through its Participant Funding Program, the Canadian Environmental Assessment Agency provided funding to certain public and Aboriginal groups to facilitate their participation in the Joint Review Panel process and Crown consultation activities. [ 42 ] As scheduled, on January 10, 2012, the Joint Review Panel’s hearings began. The first set of hearings was known as the “community hearings”.

The Joint Review Panel travelled to many local communities and received letters of comment and oral statements, including statements from representatives of Aboriginal groups. At one point, the Joint Review Panel and other interveners accompanied representatives of the Gitxaala on a boat tour of a portion of their asserted traditional territory. [ 43 ] Around this time, the Joint Review Panel received a report setting out a technical review of marine aspects of the Project.

Initiated in 2004 at the request of Northern Gateway, this technical review, known as the Technical Review Process of Marine Terminal Systems and Transshipment Sites or “TERMPOL”, was conducted by a review committee chaired by Transport Canada, staffed by representatives of other federal departments and, among other things, assisted by a technical consultant acting on behalf of the Haisla and the Kitimat Village Council. [ 44 ] Also around this time, there were some legislative changes.

Originally, the environmental assessment was to be conducted in accordance with the Canadian Environmental Assessment Act [S.C. 1992, c. 37] that was introduced in 1992. But in mid-2012, the Jobs, Growth and Long-term Prosperity Act , S.C. 2012, c. 19 became law, repealing [by

section 66 ] the 1992 version of the Canadian Environmental Assessment Act , enacting [by

section 52 ] the Canadian Environmental Assessment Act, 2012 , and amending [by Division 2 of

Part 3] the National Energy Board Act . The joint review process for the Project, already underway, was continued under these amended provisions. Hereafter, in these reasons, unless otherwise noted, references to the Canadian Environmental Assessment Act, 2012 and the National Energy Board Act refer to the 2012 versions of these statutes. [ 45 ] A month after those statutory amendments became law, and in accordance with those amendments, the Minister of the Environment and the Chair of the National Energy Board directed that the Joint Review Panel submit its environmental assessment as part of the recommendation report under

section 52 of the National Energy Board Act no later than December 31, 2013. They also finalized amendments to some of the agreements discussed above and the terms of reference of the Joint Review Panel. [ 46 ] Proceeding under the 2012 legislation, the Joint Review Panel had two main tasks. First, it had to provide a report under

section 52 of the National Energy Board Act . Second, in that report it was also to include recommendations flowing from the environmental assessment conducted under Canadian Environment Assessment Act, 2012 : subsection 29(1). Overall, the report was to: • recommend whether the requested certificates should be issued; • outline the terms and conditions that should be attached to any certificates issued by the Board for the Project; • present recommendations based on the environmental assessment. [ 47 ] In September 2012, the Joint Review Panel conducted what it called “final hearings”.

This last phase of the hearing process ended in June 2013. During this stage, the parties asked questions, filed written arguments and made oral arguments.

(4) The parties’ participation in the approval process [ 48 ] Overall, the parties had ample opportunity to participate in the Joint Review Panel process and generally availed themselves of it: • Gitxaala Nation . The Gitxaala participated in all parts of the Joint Review Panel process, including making information requests, submitting technical reports, written and oral Aboriginal evidence, and attending hearings in many localities.

Overall, the Gitxaala submitted 7 400 pages of written material, oral testimony from 27 community members and 11 expert reports on various subjects, including Northern Gateway’s risk assessment methodology, oil spill modelling, and the fate and behaviour of spilled diluted bitumen. Among other things, the Gitxaala expressed deep concern about the specific effects the Project could have on asserted rights and title.

• Haisla Nation . The Haisla also participated in all parts of the Joint Review Panel process, including submitting technical and Aboriginal evidence, oral traditional evidence, attending hearings, and participating extensively in the final round of submissions. During the process, the Haisla filed a traditional use study that describes their culture, property ownership system and laws and how the Project will interfere with their use and occupation of their lands, water and resources. The Haisla also submitted a historic and ethnographic report and an archaeological site

summary supporting their claim to exclusive use and occupation of their asserted lands. The Haisla also tendered statements and oral histories from hereditary and elected chiefs and elders outlining the Haisla’s history, their use and occupation of their asserted lands, and their efforts to protect their lands, waters and resources for the benefit of future generations. The Haisla also expressed their concerns about the Project. • Kitasoo Xai’Xais Band Council . The Kitasoo submitted brief written evidence, oral evidence at a community hearing and filed final written argument. • Heiltsuk Tribal Council .

The Heiltsuk submitted written evidence, answered an information request, gave oral evidence at a community hearing, conducted some cross-examination of witnesses for Northern Gateway and Canada, and submitted final argument. • Nadleh Whut’en and Nak’azdli Whut’en . These parties made submissions to the Crown regarding the draft joint review agreement and the manner in which Canada was engaging in consultation during Phase I of the consultation process.

The Yinka Dene Alliance, of which the Nadleh and the Nak’azdli were a part, elected not to intervene before the Joint Review Panel, but a keyoh within the Nak’azdli Whut’en system of governance did intervene. • Haida Nation . The Haida participated in all parts of the Joint Review Panel process. They made information requests, submitted written technical and Aboriginal evidence, provided oral Aboriginal evidence, attended hearings to question Northern Gateway witnesses, submitted a final written argument with comments on proposed conditions, and made oral reply argument.

They submitted a 336-page Marine Traditional Knowledge Study describing traditional harvesting activities, both historically and currently, locations of harvesting, and the time of year that harvesting is undertaken for various species throughout Haida Gwaii. The Haida and Canada collaborated on Living Marine Legacy reports over six years culminating in 2006.

These reports, totalling 1 247 pages, provide baseline inventories of marine plants, invertebrates, birds and mammals along the coastline of Haida Gwaii. • ForestEthics Advocacy Association, Living Oceans Society and Raincoast Conservation Foundation (hereafter, the “Coalition”). The Coalition participated in the Joint Review Panel process as interveners, providing written evidence and written responses to information requests regarding that evidence, submitting written information requests to other parties, offering witnesses, questioning other parties’ witnesses and making submissions. • B.C. Nature . B.C.

Nature participated in the Joint Review Panel process as a joint intervener with Nature Canada. It tendered written evidence, provided written responses to information requests regarding that evidence, questioned the witnesses of other parties, provided late written evidence, offered witnesses on that evidence, filed several motions and made submissions. • Unifor . The predecessor unions of this national union participated in the Joint Review Panel process as interveners.

They adduced expert evidence, exchanged information requests and responses, presented witnesses for questioning, and offered final argument. [ 49 ] Needless to say, the involvement of Northern Gateway and Canada throughout the Joint Review Panel process was massive. In Canada’s case, as mentioned above, a number of departments and agencies registered with the Joint Review Panel process as government participants. They filed written evidence, information requests and responses to information requests. They also offered witnesses for questioning on the evidence provided.

(5) The Report of the Joint Review Panel [ 50 ] On December 19, 2013, the Joint Review Panel issued a two volume report: Connections: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 1 and Considerations: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 2 . [ 51 ] The Joint Review Panel found that the Project was in the public interest. It recommended that the applied-for certificates be issued subject to 209 conditions.

The conditions require a number of plans, studies and assessments to be considered and assessed by the National Energy Board and other regulators in the future. The 209 conditions include requirements that Northern Gateway provide ongoing and enduring opportunities for affected Aboriginal groups to have input into the continuing planning, construction and operation of the Project through a variety of plans, programs and benefits. A number of the conditions were offered by Northern Gateway during the process.

Along with those 209 conditions, Northern Gateway made over 450 voluntary commitments. [ 52 ] The conditions deal with such matters as environmental management and monitoring, emergency preparedness and response, and the delivery of economic benefits. Northern Gateway says that these conditions represent an investment of $2 billion on its part.

Aboriginal groups, including the First Nations parties in these proceedings will continue to have opportunities to provide input and participate in fulfilment of these conditions. [ 53 ] The Joint Review Panel also recommended that the Governor in Council conclude that: • potential adverse environmental effects from the Project alone are not likely to be significant; • adverse effects of the Project, in combination with effects of past, present and reasonably foreseeable activities or actions are likely to be significant for certain woodland caribou herds and grizzly bear populations; and • the significant adverse cumulative effects in relation to the caribou and grizzly bear populations are justified in the circumstances.

(6) Consultation with Aboriginal groups: Phase IV [ 54 ] Following the release of the Report of the Joint Review Panel, the process of consultation with Aboriginal groups entered Phase IV of the consultation framework. A detailed description of what happened during this phase is set out below. [ 55 ] For present purposes, Phase IV began with the Crown sending letters to representatives of Aboriginal groups in December 2013, seeking input on how the Joint Review Panel’s recommendations and conclusions addressed their concerns.

Officials from the Canadian Environmental Assessment Agency and other federal departments held meetings with representatives from Aboriginal groups to discuss concerns.

Federal representatives met with a number of Aboriginal groups including the Gitga’at, the Gitxaala, the Haida, the Haisla, the Heiltsuk, the Kitasoo and the Yinka Dene Alliance (which includes the Nak’azdli and the Nadleh). [ 56 ] Following these meetings and discussions, on May 22, 2014, Canada issued a report concerning its consultation: “Report on Aboriginal Consultation Associated with the Environmental Assessment”. [ 57 ] At this point, it is perhaps appropriate to note that this is not a case where the proponent of the Project, Northern Gateway, declined to work with Aboriginal groups. Far from it.

Once the pipeline corridor for the Project was defined in 2005, Northern Gateway engaged with all Aboriginal groups, both First Nations and Métis, with communities located within 80 kilometres of the Project corridor and the marine terminal. Northern Gateway engaged with other Aboriginal groups beyond that area to the extent that they self-identified as having an interest because the corridor crossed their traditional territory. [ 58 ] In all, Northern Gateway engaged with over 80 different Aboriginal groups across various regions of Alberta and British Columbia.

It employed many methods of engagement, giving $10.8 million in capacity funding to interested Aboriginal groups. It also implemented an Aboriginal Traditional Knowledge program, spending $5 million to fund studies in that area.

(7) The Order and the Certificates [ 59 ] The Governor in Council had before it the Report of the Joint Review Panel. It also had other material before it that was not disclosed in these proceedings. Canada asserted privilege over that material under

section 39 of the Canada Evidence Act , R.S.C., 1985, c. C-5. [ 60 ] On June 17, 2014, the Governor in Council issued Order in Council P.C. 2014-809.

On June 28, 2014, the Order in Council was published in the Canada Gazette [Part I]. [ 61 ] Balancing all of the competing considerations before it, the Governor in Council accepted [at page 1645] “the [Joint Review] Panel’s finding that the Project, if constructed and operated in full compliance with the conditions set out in Appendix 1 of Volume 2 of the [Joint Review Panel’s] Report, is and will be required by the present and future public convenience and necessity”. It “accept[ed] the Panel’s recommendation”.

It added that “the Project would diversify Canada’s energy export markets and would contribute to Canada’s long-term economic prosperity” [

(2014) C. Gaz. I, at page 1645]. [ 62 ] As for matters raised by the environmental assessment, the Governor in Council found that, taking into account the implementation of mitigation measures [Order in Council, at page 1646], “the Project is not likely to cause significant adverse environmental effects” within the meaning of subsection 5(1) of the Canadian Environmental Assessment Act, 2012 .

However, the Project would cause significant adverse environmental effects to certain populations of woodland caribou and grizzly bear within the meaning of subsection 5(2) of the Canadian Environmental Assessment Act, 2012 but these effects were “justified in the circumstances”.

Exercising its authority under subsections 53(1) and 53(2) of the Canadian Environmental Assessment Act, 2012 , the Governor in Council established conditions with which Northern Gateway must comply, which conditions were set out in Appendix 1 of Considerations: Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 2 . [ 63 ] In light of the foregoing, exercising its power under

section 54 of the National Energy Board Act , the Governor in Council directed the National Energy Board to issue Certificates of Public Convenience and Necessity to Northern Gateway for the Project in accordance with the terms and conditions set out in the Joint Review Panel’s Report. [ 64 ] On the same day, at the behest of the Governor in Council, the National Energy Board issued a decision statement under subsection 54(1) of the National Energy Board Act .

The Decision Statement summarized what the Governor in Council had decided on the Joint Review Panel’s recommendations made as a result of the environmental assessment. The Decision Statement reads as follows [“Decision Statement Issued under

Section 54 of the Canadian Environmental Assessment Act, 2012 and Paragraph 104(4) (

b) of the Jobs, Growth and Long-term Prosperity Act ”]: The Governor in Council has decided, after considering the [Joint Review] Panel’s report together with the conditions proposed in it, that the [Designated] Project is not likely to cause significant adverse environmental effects referred to in subsection 5(1) of [the Canadian Environmental Assessment Act ] but it is likely to cause significant adverse environmental effects referred to in subsection 5(2) of [the Canadian Environmental Assessment Act, 2012 ] to certain populations of woodland caribou and grizzly bear as described in the [Joint Review] Panel’s report.

The Governor in Council has also decided that, pursuant to subsection 52(4) of [the Canadian Environmental Assessment Act, 2012 ], the significant adverse environmental effects that the [Designated] Project is likely to cause to certain populations of woodland caribou and grizzly bear are justified in the circumstances. The Governor in Council has established the 209 conditions set out by the [Joint Review] Panel in its report as the conditions in relation to the environmental effects referred to in subsections 53(1) and (2) of [the Canadian Envi

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