R. v. Sparrow-type justification analysis as, 2020 FCA 34

A-324-19 (lead file) A-325-19 A-326-19 A-327-19 2020 FCA 34 Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose ( Applicants ) v. Attorney General of Canada, Trans Mountain Pipeline ULC and Trans Mountain Corporation ( Respondents ) and Attorney General of Alberta, Attorney General of Saskatchewan and Canadian Energy Regulator ( Interveners ) Indexed as: Coldwater First Nation v.

Canada (Attorney General) Federal Court of Appeal, Noël C.J., Pelletier and Laskin JJ.A.—Vancouver, December 16–18, 2019; Ottawa, February 4, 2020. Aboriginal Peoples — Duty to consult — J udicial review challenging second approval of Trans Mountain Pipeline Expansion Project (Project) by Governor in Council (GIC) — Approval challenged on environmental grounds, Crown’s alleged continued failure to fulfil its duty to consult — Project first approved in 2016 — S uccessfully challenged in Tsleil-Waututh Nation v.

Canada (Attorney General) (TWN 2018) — GIC approving Project for second time in June 2019 ( Order in Council P.C. 2019-820) — GIC c onsidering that consultation efforts made after TWN 2018 adequately remedying identified flaws, sufficient to meet duty to consult — Applicants submitting that Project could not be approved until all concerns resolved, including impact on aquifer, risk of spills of diluted bitumen, marine shipping — Applicants also contending, inter alia, that Canada having to engage in R. v.

Sparrow-type justification analysis as part of consultation process — Whether GIC reasonably concluding that flaws identified in TWN 2018 adequately remedied by renewed consultation process — GIC entitled to give government actors leeway in assessing whether their efforts resulting in compliance with duty to consult — Consultation having to be “reasonable” — Canada having to consider, address Indigenous peoples’ rights in meaningful way — Meaningful consultation requirement flowing from honour of Crown — Process of meaningful consultation resulting in various forms of accommodation — Failure to accommodate in any particular way (e.g. such as abandoning Project) not necessarily meaning there has been no meaningful consultation — R econciliation not dictating any particular substantive outcome — Consultation process not to be used as means to veto a project — Post-approval consultation relevant, important — Importance of matter to those directly impacted by Project affecting reasonableness analysis — GIC’s decision reasonable — A dopting view that flaws adequately addressed, that reasonable, meaningful consultation having taken place — GIC’s explanations not suffering from errors identified in Canada (Minister of Citizenship and Immigration) v.

Vavilov — Conclusions within bounds of governing legislation — GIC understanding legal content of duty to consult, Court’s decision in TWN 2018, shortcomings in earlier consultation process — Decision not outside bounds of National Energy Board Act , s. 54 — GIC reasonably addressing, considering key issues raised by Court in TWN 2018 — Entitled to take broad consensus of Indigenous groups supporting or not opposing Project into account in concluding Project was in public interest — These findings sufficient to conclude GIC decision reasonable — Applicants’ detailed submissions nevertheless addressed — Applications dismissed.

Administrative Law — Judicial Review — Standard of Review — Applicants challenging second approval of Trans Mountain Pipeline Expansion Project (Project) by Governor in Council (GIC) on environmental grounds, Crown’s alleged continued failure to fulfil its duty to consult — GIC considering that consultation efforts adequately remedying identified flaws, sufficient to meet duty to consult, Project in public interest — Present matter statutory judicial review — In such circumstances, presumptive standard of review that of reasonableness — E xceptions to reasonableness review not applying herein — Case dealing with constitutional duty of high significance — That context informing conduct of reasonableness review — Issue not whether GIC should have come to different conclusion or whether consultation process could have been longer or better but rather whether decision approving Project, justification offered acceptable, defensible in light of governing legislation, evidence, circumstances bearing upon reasonableness review.

These were applications for judicial review challenging the approval of the Trans Mountain Pipeline Expansion Project (Project) by the Governor in Council for the second time. Several parties sought to challenge this approval on environmental grounds and on grounds of the Crown’s alleged continued failure to fulfil its duty to consult. The Project was first approved in 2016 by an Order in Council issued under

section 54 of the National Energy Board Act . This approval was successfully challenged in Tsleil-Waututh Nation v. Canada (Attorney General) ( TWN 2018 ) where the Court remitted the matter back to the Governor in Council in order to address the impermissibly under-inclusive nature of the environmental assessment and the Crown’s failure to fulfil its duty to consult with Indigenous peoples. The Governor in Council approved the Project for a second time on June 18, 2019 (Order in Council P.C. 2019-820).

In that Order, the Governor in Council considered that the consultation efforts made after TWN 2018 adequately remedied the identified flaws, that those efforts were sufficient to meet the duty to consult and, considering the benefits and detriments of the Project, that the Project was in the public interest and should be approved. The applicants submitted essentially that the Project could not be approved until all of their concerns were resolved to their satisfaction.

Some of those concerns included the potential impact of the Project on the aquifer from which the applicant Coldwater Indian Band draws its drinking water supply, the risk of spills of the diluted bitumen that would be carried by the pipeline and the consequences of a spill for the applicant Squamish Nation’s rights and interests, and marine shipping. Finally, the applicant Ts’elxwéyeqw [1] contended, inter alia , that Canada’s legal approach in addressing its constitutionally protected fishing right was flawed. It argued that Canada ought to have engaged in an R. v.

Sparrow -type justification analysis based on the alleged infringement of its established fishing right as part of the consultation process.

[249] The fundamental issue herein was whether the Governor in Council reasonably concluded that the flaws identified in TWN 2018 were adequately remedied by the renewed consultation process. Held , the applications should be dismissed. This was a statutory judicial review, not a statutory appeal. In such circumstances, there is a presumption, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov that the standard of review is reasonableness, and none of the exceptions to reasonableness review identified in Vavilov applied.

At issue was a constitutional duty of high significance to Indigenous peoples and indeed the country as a whole. This was part of the context that informed the conduct of the reasonableness review. The focus of the case was on the reasonableness of the Governor in Council’s decision. The issue was not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better.

The question to be answered was whether the decision approving the Project and the justification offered were acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bore upon a reasonableness review. The Governor in Council was entitled to give the government actors leeway in assessing whether their efforts resulted in compliance with the duty to consult. To satisfy that duty, consultation must be “reasonable”, meaning that Canada must show that it has considered and addressed the rights claimed by Indigenous peoples in a meaningful way.

Consultation is a requirement that flows from the honour of the Crown. It is not honourable for Canada to act unilaterally in a way that could affect the rights of Indigenous peoples, without first engaging in meaningful consultation. The other controlling concept is reconciliation. The process of meaningful consultation can result in various forms of accommodation. But the failure to accommodate in any particular way, including by way of abandoning the Project, does not necessarily mean that there has been no meaningful consultation.

The fact that consultation did not lead the applicants to agree that the Project should go ahead did not mean that reconciliation has not been advanced. The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome. Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists.

Imposing too strict a standard of “perfection”, “reasonableness” or “meaningfulness” in assessing whether the duty to consult has been adequately met would de facto create a veto right. Although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it. Post-approval consultation is both relevant and important.

Even if Canada’s consultation and accommodation measures up to June 18, 2019, were found to be inadequate, consultation activities that took place after the issuance of the Order in Council would remain relevant. Another contextual factor that affected the reasonableness analysis in this case was the importance of this matter to those directly impacted by the Project. The reasons offered by the Governor in Council, both in the Order in Council’s Recitals and in the accompanying Explanatory Note, were more than sufficient in providing justification for the decision.

The Governor in Council’s decision was reasonable. It reasonably adopted the view that the limited flaws identified in TWN 2018 had been adequately addressed and that reasonable and meaningful consultation had taken place. The Governor in Council’s explanations did not suffer from errors in reasoning or logical deficiencies of the sort identified in Vavilov . The explanations show a chain of reasoning progressing from reasonable views of the evidence before it to plausible conclusions well within the bounds of the governing legislation.

The Governor in Council understood the legal content of the duty to consult, the import of the Court’s decision in TWN 2018 and the shortcomings in its earlier consultation process. It could not be said that the decision reached by the Governor in Council was outside the bounds of

section 54 of the National Energy Board Act , reasonably interpreted. Nor could it be said that the Governor in Council did not adequately, meaningfully and reasonably address and consider the key issues raised by this Court in TWN 2018 and the parties during the renewed consultation. This was anything but a rubber-stamping exercise. The Governor in Council was entitled under

section 54 to take the broad consensus of the more than 120 Indigenous groups who supported or did not oppose the Project into account in concluding that the Project was in the public interest. A decision can be reasonable even though some affected parties continue to have strong objections to it on the merits. These findings were sufficient to conclude that the decision of the Governor in Council was reasonable. Nevertheless, the applicants’ detailed submissions were addressed.

The Governor in Council’s decision that the applicant Coldwater Indian Band was adequately consulted and accommodated during the renewed consultation process was eminently reasonable and therefore the Order in Council approving the Project against Coldwater’s opposition had to stand. The record also demonstrated, inter alia , that in the renewed consultation process, Canada meaningfully responded to the applicant Squamish Nation’s concerns through discussion, the exchange of expert scientific opinion, and the provision of relevant information and documentation.

Ultimately, the applicant Squamish Nation was not persuaded that enough was known about the fate and behaviour of diluted bitumen to permit a decision approving the Project. But the law governing consultation does not impose a duty to agree, nor was it the role of the Court to act as an “academy of science” to decide whose view is correct. Provided the Governor in Council could reasonably determine that there was meaningful consultation, the appropriateness of a decision on the Project given the current state of scientific knowledge was a matter for the Governor in Council to determine.

The record demonstrated that Canada engaged in meaningful dialogue with the applicant Tsleil-Waututh Nation respecting its concerns about Project-related marine shipping impacts. While there was disagreement, this did not indicate a failure of consultation. Failure to adopt specific scientific and technical views does not render consultation unreasonable. Canada did not breach its duty to consult and accommodate the applicant Tsleil-Waututh Nation by ultimately approving the Project.

It was open to the Governor in Council to conclude that the re-initiated consultation conducted with the applicant Tsleil-Waututh Nation following TWN 2018 was adequate, and resulted in proposed accommodation measures that were responsive to that applicant’s concerns. There was no merit to Ts’elxwéyeqw’s contention that Canada’s legal approach in addressing its constitutionally protected fishing right was flawed. The consultation process and the justification process occur at different points in time and address different circumstances.

The consultation framework aims to prevent potential infringement of Aboriginal rights, whereas the justification analysis is intended to justify a prima facie infringement that has been demonstrated. Finding that the duty to consult and accommodate requires, as a starting point, the need to justify the infringement of an Aboriginal right is putting the cart before the horse, as the former seeks to prevent the latter. Concluding otherwise would lead to a circular result, the first step of the justification analysis being whether the Crown has discharged its procedural duty to consult and accommodate.

Accepting that the adjudication of treaty rights or claimed Aboriginal rights must take place every time an infringement is alleged during the consultation and accommodation process would effectively revert to the pre- Haida Nation v. British Columbia (Minister of Forests) case law, which led to complex and lengthy litigation.

STATUTES AND REGULATIONS CITED Canadian Environmental Assessment Act, S.C. 1992, c. 37. Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, s. 52(4). Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35. Indian Act, R.S.C., 1985, c. I-5. National Energy Board Act, R.S.C., 1985, c. N-7, ss. 54, 55. Order in Council P.C. 2016-1069. Order in Council P.C. 2018-1177. Order in Council P.C. 2019-378. Order in Council P.C. 2019-820. CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 438 D.L.R. (4th) 745; Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1S.C.R. 5; Wilson v.

Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Gitxaala Nation v. Canada, 2016 FCA 187,[2016] 4 F.C.R. 418, leave to appeal to S.C.C. refused, [2017] 1 S.C.R. xvi; Haida Nation v. British Columbia (Minister of Forests),2004 SCC 73, [2004] 3 S.C.R. 511; Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58, 408 D.L.R. (4th)201. CONSIDERED: Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3, leave to appeal to S.C.C. refused, 38379 (2 May2019); Raincoast Conservation Foundation v.

Canada (Attorney General), 2019 FCA 224, [2020] 1 F.C.R. 362; Beckman v. LittleSalmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Taku River Tlingit First Nation v. British Columbia (ProjectAssessment Director), 2004 SCC 74 , [2004] 3 S.C.R. 550; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.,2017 SCC 41, [2017] 1 S.C.R. 1099; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3S.C.R. 388; Mikisew Cree First Nation v.

Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Ktunaxa Nation v.British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Inverhuron & DistrictRatepayers Ass. v. Canada (Minister of The Environment), 2001 FCA 203, 273 N.R. 62; Pembina Institute for Appropriate Developmentv. Canada (Attorney General), 2008 FC 302, 323 F.T.R. 297; Prophet River First Nation v. Canada (Attorney General), 2017 FCA 15,408 D.L.R. (4th) 165. REFERRED TO: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 ; Halifax (Regional Municipality) v.

Nova Scotia (Human RightsCommission), 2012 SCC 10, [2012] 1 S.C.R. 364; Canada (Attorney General) v. Boogaard, 2015 FCA 150, 87 Admin. L.R. (5th) 175;Ignace v. Canada (Attorney General), 2019 FCA 239; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA259; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722; Canada v. Long Plain FirstNation, 2015 FCA 177, 388 D.L.R. (4th) 209; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and NorthernDevelopment), 2015 FCA 148, 474 N.R. 350; Squamish First Nation v.

Canada (Fisheries and Oceans), 2019 FCA 216, 436 D.L.R.(4th) 596; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658; R. v. Marshall, (SCC), [1999] 3 S.C.R. 533, (1999), 179D.L.R. (4th) 193; Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1; R. v.Douglas et al, 2007 BCCA 265, 278 D.L.R. (4th) 653; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1S.C.R. 6; Stemijon Investments Ltd. v.

Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710; Ignace v. Canada (AttorneyGeneral), 2019 FCA 266; Bell Canada v. Canada (Attorney General), 2019 SCC 66, 441 D.L.R. (4th) 155; Canada Post Corp. v.Canadian Union of Postal Workers, 2019 SCC 67, 441 D.L.R. (4th) 269; Emera Brunswick Pipeline Company Ltd. (Re), 2008 LNCNEB10 (QL); William v. British Columbia (Attorney General), 2019 BCCA 74, 20 B.C.L.R. (6th) 355; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, (1990), 70 D.L.R. (4th) 385; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257. AUTHORS CITED Canada.

Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, Ottawa: The Commission,1996. Canada Gazette, Vol. 153, No. 25, June 22, 2019. Truth and Reconciliation Commission of Canada. Honouring the truth, reconciling for the future:

summary of the final report of theTruth and Reconciliation Commission of Canada, Winnipeg: Truth and Reconciliation Commission of Canada, 2015. Walters, Mark D. “The Jurisprudence of Reconciliation: Aboriginal Rights in Canada” in Will Kymlicka and Bashir Bashir, eds. ThePolitics of Reconciliation in Multicultural Societies, Oxford: Oxford University Press, 2008.

APPLICATIONS for judicial review challenging the second approval of the Trans Mountain Pipeline Expansion Project by the Governor in Council on environmental grounds and on grounds of the Crown’s alleged continued failure to fulfil its duty to consult. Applications dismissed. APPEARANCES F. Matthew Kirchner , Emma Hume and Cam Brewer for applicant Coldwater Indian Band. F. Matthew Kirchner and Michelle Bradley for applicant Squamish Nation. Scott A. Smith , Paul Seaman and Keith Brown for applicant Tsleil-Waututh Nation.

Joelle Walker , Erin Reimer and Serin Remedios for applicants Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose. Jan Brongers , Dayna Anderson , Sarah Bird , Sarah-Dawn Norris , Jon Khan , Anita Balakumar , Maria Oswald and Ashley Gardner for respondent Attorney General of Canada. Maureen Killoran, QC , Olivia Dixon and Sean Sutherland for respondents Trans Mountain Pipeline ULC and Trans Mountain Corporation. Stephanie Latimer and Krista Epton for intervener Attorney General of Alberta. R.

James Fyfe and Jeffrey Crawford for intervener Attorney General of Saskatchewan. Keith B. Bergner and Paul Johnston for intervener Canadian Energy Regulator. SOLICITORS OF RECORD Ratcliff & Company LLP , Vancouver, for applicants Coldwater Indian Band and Squamish Nation. Gowling WLG (Canada) LLP , Vancouver, for applicant Tsleil-Waututh Nation. Miller Titerle + Company LLP , Vancouver, for applicants Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose. Deputy Attorney General of Canada for respondent Attorney General of Canada.

Osler, Hoskin & Harcourt LLP , Calgary, for respondents Trans Mountain Pipeline ULC and Trans Mountain Corporation. Justice and Solicitor General (Alberta) , Edmonton, for respondent Attorney General of Alberta. Deputy Minister of Justice , Regina, for Attorney General of Saskatchewan. Lawson Lundell LLP , Vancouver, and Canadian Energy Regulator , Calgary, for intervener Canadian Energy Regulator.

The following are the reasons for judgment rendered in English by [ 1 ] The Court : On November 29, 2016, weighing the benefits and detriments of the Trans Mountain Pipeline Expansion Project and considering Canada’s duty to consult with Indigenous peoples, the Governor in Council decided to approve the Project: Order in Council P.C. 2016-1069 (December 10, 2016), issued under

section 54 of the National Energy Board Act , R.S.C., 1985, c. N-7 ( NEB Act ). [ 2 ] Several applicants successfully challenged the approval ( Tsleil-Waututh Nation v. Canada (Attorney General) , 2018 FCA 153 , [2019] 2 F.C.R. 3 ( TWN 2018 )). This Court found two fundamental defects: the impermissibly under-inclusive nature of the environmental assessment that formed part of the basis for the approval and the Crown’s failure to fulfil its duty to consult with Indigenous peoples.

This Court remitted the matter back to the Governor in Council in order for these flaws to be addressed and for re- decision. [ 3 ] Toward that end, a reconsideration hearing was ordered to take place before the National Energy Board (NEB), as part of Phase II, and the Phase III consultation process was re-initiated. For a second time, the Governor in Council approved the Project (see Order in Council P.C. 2019-820 (June 18, 2019), page 1) (Order in Council) [ Canada Gazette , Vol. 153, No. 25, June 22, 2019] (online: http://www.gazette.gc.ca/rp-pr/p1/2019/2019-06-22/pdf/g1-15325.pdf#page=251).

As required by the NEB Act, the decision was issued with reasons, which took the form of 37 recitals that precede the operative portion of the Order in Council (the Recitals). An explanatory note was also issued providing additional reasons for the decision (online: http://www.gazette.gc.ca/rp-pr/p1/2019/2019-06-22/pdf/g1- 15325.pdf#page=271) (Explanatory Note). [ 4 ] Several parties sought to challenge the second approval on environmental grounds and on grounds of the Crown’s alleged continued failure to fulfil its duty to consult. However, only six applicants were granted leave under

section 55 of the NEB Act to start applications for judicial review of the Order in Council. Two have discontinued their applications, leaving four applicants before the Court: Coldwater Indian Band (Coldwater), Squamish Nation (Squamish), Tsleil-Waututh Nation (Tsleil-Waututh) and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose (Ts’elxwéyeqw). [ 5 ] Coldwater is a band, as defined under the Indian Act , R.S.C., 1985, c. I-5 ( Indian Act ), comprising over 850 members.

Coldwater forms part of the Nlaka’pamux Nation, which asserts Aboriginal title to an area that includes the Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater Valleys, and Canada’s North Cascades, including the Coquihalla area. Squamish is a Coast Salish

Nation, with over 4 212 registered members. Squamish’s traditional territory extends from the Lower Mainland of British Columbia to Whistler, and includes Burrard Inlet, English Bay, Howe Sound, and the Squamish Valley. Tsleil-Waututh is a Coast Salish Nation, and a band within the meaning of the Indian Act . In the traditional dialect of Halkomelem, the name Tsleil-Waututh means “People of the Inlet”.

Tsleil-Waututh’s asserted traditional territory extends approximately west to Gibsons, east to Coquitlam Lake, north to the vicinity of Mount Garibaldi, and south to the 49th parallel and beyond, and includes sections of the Lower Fraser River, Howe Sound, Burrard Inlet, and Indian Arm. Ts’elxwéyeqw represents the seven Ts’elxwéyeqw (Stó:lō) villages of Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, and Yakweakwioose. Each of the seven villages is a band within the meaning of the Indian Act .

In the traditional dialect of Halkomelem, one translation of “Stó:lō” is “People of the River”, being the Fraser River. Ts’elxwéyeqw’s traditional territory includes the lower Fraser River watershed in southwestern British Columbia. [ 6 ] The applications for judicial review were restricted to the duty to consult issues, on the basis that the environmental concerns did not possess sufficient merit to justify the granting of leave (see Raincoast Conservation Foundation v. Canada (Attorney General) , 2019 FCA 224 , [2020] 1 F.C.R. 362 [ Raincoast No. 1 ] )).

Specifically, the order granting leave (Leave Order) confined the applications to the following issues: 1. From August 30, 2018 (the date of the decision in ( TWN 2018 )) to June 18, 2019 (the date of the Governor in Council’s decision) was the consultation adequate in law to address the shortcomings in the earlier consultation process that were summarized at paragraphs 557–563 of ( TWN 2018 )? The answer to this question should include submissions on the standard of review, margin of appreciation or leeway that applies in law. 2. Do any defences or bars to the application apply? 3.

If the answers to the questions 1 and 2 are negative, should a remedy be granted and, if so, what remedy and on what terms? [ 7 ] The applications were consolidated by an order issued on September 20, 2019, later amended on November 5, 2019. In the consolidated applications, the applicants allege that the renewed consultation in which they were each involved did not adequately address the shortcomings identified in TWN 2018 .

They invite us to answer the first two questions in the negative, and to grant the remedy of an order quashing the Order in Council as a consequence. [ 8 ] The Attorney General of Canada on behalf of the Crown (the Crown or Canada), Trans Mountain Pipeline ULC and Trans Mountain Corporation (together, Trans Mountain) resist the consolidated applications on the basis that the duty to consult was adequately fulfilled, and ask that they be dismissed on this basis.

The Attorneys General of Alberta and Saskatchewan, as interveners, support the Crown’s position. [ 9 ] The third intervener, the Canada Energy Regulator (CER), successor to the NEB, takes no position as to the merits of the judicial review applications, and appears in order to assist the Court as to the role of the NEB in the consultation process to date and its continued role in monitoring and ensuring ongoing compliance with the conditions that accompanied the issuance of the Order in Council. [ 10 ] For the reasons that follow, we conclude that there is no basis for interfering with the Governor in Council’s second authorization of the Project.

The judicial review applications will be dismissed. [ 11 ] In conformity with the amended consolidation order, these reasons will be filed in docket A-324-19 and a copy thereof will be filed in dockets A-325-19, A-326-19 and A-327-19. I. Opening observations [ 12 ] The applicants have argued their case very much as if this was the first time that their case was adjudicated. In fact our task is more limited. [ 13 ] In TWN 2018 , this Court examined the consultation process that preceded the first Project approval in exhaustive detail, finding many aspects of that process to be adequate.

It found that the execution of one part of the consultation, Phase III, was deficient. [ 14 ] When it came to remedy, this Court in TWN 2018 did not require that the consultation process begin anew. Instead, it required focused consultation to address the shortcomings it identified. While the flaws were significant, they were restricted to precise issues within the overall consultation process. [ 15 ] Our focus now is on the Governor in Council’s decision to approve the Project a second time.

The Governor in Council considered that the consultation efforts made after TWN 2018 adequately remedied the identified flaws. Those efforts were sufficient to meet the duty to consult and, considering the benefits and detriments of the Project, the Project was in the public interest and should be approved. [ 16 ] The existence and depth of the duty to consult are not in issue. All parties agree that the duty was one of deep consultation.

The fundamental issue to be decided is whether taking this into account, the Governor in Council could reasonably conclude that the flaws identified in TWN 2018 were adequately remedied by the renewed consultation process. This is a narrow issue primarily based on the Governor in Council’s evaluation of the adequacy of the consultation that took place during the second consultation process, an assessment that is fact-intensive and that calls for deference. [ 17 ] The Governor in Council was entitled to measure the adequacy of the second consultation process in light of what was possible in the circumstances.

Among these circumstances is the fact that the consultation under scrutiny in this case was conducted pursuant to this Court’s decision in TWN 2018 . In that case, the Court, having identified the flaws that needed further attention, was best positioned to evaluate how they could be addressed adequately.

It concluded that the further consultation required to address the flaws could be “specific and focussed” and could be accomplished through a “brief and efficient” process ( TWN 2018 , paragraph 772). [ 18 ] The Court in TWN 2018 did not envisage that much more had to be done in order for the consultation process to address the

identified flaws. This appreciation of the nature and extent of the work to be done could legitimately be relied on by the Governor in Council in determining what was needed in order to conduct the reparative consultation process (Explanatory Note, pages 22, 27).

Absent new concerns or difficulties not envisaged in TWN 2018 , it is not open to the applicants to now say—as they all do in one way or another —that something more than a “specific and focussed [and] brief and efficient” process was necessary. [ 19 ] As well, consistent with this Court’s advice in TWN 2018 , all understood, or should have understood, that the time available for the renewed consultation was not open-ended.

The Governor in Council referred the matter back to the NEB for reconsideration on September 20, 2018, and gave the NEB until February 22, 2019, to produce its Reconsideration Report ( Order in Council P.C. 2018- 1177 (September 20, 2018)) . Canada announced that it would also reinitiate Phase III of the consultation process beginning October 5, 2018.

On April 17, 2019, the Governor in Council by way of a further Order in Council extended by roughly a month the time limit for its decision, bringing the deadline to June 18, 2019 ( Order in Council P.C. 2019-378 (April 17, 2019)) . [ 20 ] The applicants complain that the time for the renewed consultation was insufficient to allow Canada to discharge its constitutional duty to consult. None of the applicants challenged the constitutional validity of

section 54 of the NEB Act or the Orders in Council setting the time frame for the subsequent steps on the ground that they did not allow sufficient time for Canada to discharge its duty to consult. Absent such a challenge and given the time available, it was incumbent on all parties to engage in the consultation process diligently and to work toward accommodations that were responsive to the flaws identified in TWN 2018 .

Unfortunately, this did not always take place: much time was taken up by unnecessary delay, posturing and insisting on matters of form rather than substance. [ 21 ] As well, all the applicants contend that Canada did not engage in the consultation process with an open mind.

The suggestion in each case is that the outcome was predetermined because Canada owned Trans Mountain. [ 22 ] This argument was considered in Raincoast No. 1 , and was held not to meet the “‘fairly arguable case’” test for granting leave to commence a judicial review application for a number of reasons (paragraphs 33–36): At the outset, it suffers from a fatal flaw. The Governor in Council is not the Government of Canada. The Governor in Council, the decision maker here, does not own the project. More fundamentally,

section 54 of the National Energy Board Act requires the Governor in Council to decide whether to approve a project regardless of who owns it. The Act does not disqualify the Governor in Council from discharging this responsibility based on ownership of the project. The Act prevails over any common law notions of bias and conflict of interest… . This case would be different if the Governor in Council blindly approved the project because the Government of Canada now owns it instead of looking at legally relevant criteria.

But to make that sort of point “fairly arguable,” there must be at least a shred of evidence to support it. In the evidentiary record before the Court, there is none. Without evidence, suggestions of bias or conflict of interest are just idle speculations or bald allegations and cannot possibly satisfy the test of a “fairly arguable case” … . Some applicants have noted public statements on the part of certain federal politicians in support of the project as proof of disqualifying bias.

This issue is not “fairly arguable.” In law, statements of this sort do not trigger disqualifying bias…. [Citations omitted.] [ 23 ] The bias argument, having been excluded at the leave stage, is not properly before us. However, we believe it useful to nevertheless confirm that based on the record before us, there is no evidence that the Governor in Council’s decision was reached by reason of Canada’s ownership interest rather than the Governor in Council’s genuine belief that the Project was in the public interest.

While the assessment that was ultimately made may benefit the Crown as owner of the Project, nothing suggests that the Governor in Council was not guided by the public interest throughout. II. The standard of review A. General considerations [ 24 ] After the hearing in this matter, the Supreme Court released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , 438 D.L.R. (4th) 745 ( Vavilov ) , concerning the standard of review that governs in matters such as this . This Court called for further submissions in writing from the parties concerning Vavilov .

We have received their submissions and have considered them. [ 25 ] All are agreed that Vavilov does not bring a material change to the standard of review in this litigation. However, Vavilov does bring together and clarify a number of principles in a useful way. [ 26 ] This is a statutory judicial review, not a statutory appeal.

In such circumstances, there is a presumption that the standard of review is reasonableness ( Vavilov , paragraphs 23–32 ), and none of the exceptions to reasonableness review identified in Vavilov apply. [ 27 ] In Vavilov , the Supreme Court held that questions as to “the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 … require a final and determinate answer from the courts” and, thus, must be reviewed for correctness ( Vavilov , paragraph 55 ). But, as mentioned, the scope of the duty to consult under

section 35 is not in issue before us. Thus, reasonableness is the standard of review (see also TWN 2018 , paragraphs 225–226). That said, we are dealing with a constitutional duty of high significance to Indigenous peoples and indeed the country as a whole. This is part of the context that informs the conduct of the reasonableness review. [ 28 ] In conducting this review, it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning the Governor in Council’s decision. In many ways, that is what the applicants invite us to do.

But this would amount to what has now been recognized as disguised correctness review, an impermissible approach ( Vavilov , paragraph 83 ): It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what

decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General) , 2015 FCA 117 , 472 N.R. 171 , that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan , at paras. 50-51.

Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [Emphasis in original.] [ 29 ] Rather, our focus must be on the reasonableness of the Governor in Council’s decision, including the outcome reached and the justification for it. The issue is not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better.

The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review. [ 30 ] There are many such circumstances. The Supreme Court emphasized in Vavilov that reasonableness is a single standard that must account for context. In its words, “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case” ( Vavilov , paragraph 89 ).

Thus, reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision making involved and all relevant factors” ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , paragraph 59 ; Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 ( Catalyst ), paragraph 18 ; Wilson v. Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 S.C.R. 770, paragraph 22 ).

In other words, the circumstances, considerations and factors in particular cases influence how courts go about assessing the acceptability and defensibility of administrative decisions ( Catalyst , paragraph 18; Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395, paragraph 54 ; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 S.C.R. 364, paragraph 44 ). [ 31 ] In Vavilov , the Supreme Court emphasized that reasonableness review is to be conducted by appreciating the decision, the reasons for it, and the context in which it was made.

This requires us to consider the reasons offered in justification of the decision in light of the evidentiary record. B. Factors that bear on reasonableness review [ 32 ] One factor affecting the reasonableness review has already been examined above: the comments of this Court in TWN 2018 regarding what sort of work was required to address the shortcomings through a brief and efficient consultation process. The Governor in Council was entitled to take this assessment into account in determining whether the duty to consult was adequately met. But there are other factors that affect the reasonableness review.

(1) Empowering legislation [ 33 ] One important factor to consider is the empowering legislation as set out in sections 54 and 55 of the NEB Act ( Vavilov , paragraph 108 ; Canada (Attorney General) v. Boogaard , 2015 FCA 150 , 87 Admin. L.R. (5th) 175, paragraph 36 ). It sets permissible bounds for the Governor in Council’s approval decision. [ 34 ] Under

section 54, the Governor in Council is the only body empowered to determine whether the Project should be approved or denied on any basis, including compliance with the duty to consult. When regard is had to this provision, this Court has no role in deciding whether the Project should be approved or not and should not second-guess the outcome based on its own view of the matter. [ 35 ] Under

section 55, challenges to an approval can only be brought by way of judicial review ( TWN 2018 , paragraphs 170ff., leave to appeal to S.C.C. refused, 38379 (2 May 2019) ; Gitxaala Nation v. Canada , 2016 FCA 187 , [2016] 4 F.C.R. 418 ( Gitxaala Nation ), paragraphs 92ff ., 119ff., leave to appeal to S.C.C. refused [n o 37201 (February 9, 2017)] , [2017] 1 S.C.R. xvi). Reviewing courts are limited to a reviewing function and are not to pronounce on the merits (see Raincoast No. 1 , paragraphs 44, 50ff.; Ignace v. Canada (Attorney General) , 2019 FCA 239 , paragraph 36 ; Raincoast Conservation Foundation v.

Canada (Attorney General) , 2019 FCA 259 , paragraphs 13–15 ). [ 36 ] This is particularly so given the nature of the question before us. As mentioned above, the Governor in Council decided that the duty to consult was adequately fulfilled, i.e., that there had been meaningful two-way dialogue during the reparative consultation process. This is a fact-intensive question of mixed fact and law that commands deference. Under

section 54, it is up to the Governor in Council to assess the facts in order to determine the adequacy of consultation. Our role is restricted to testing the reasonableness of this assessment.

(2) The law concerning the duty to consult [ 37 ] The law concerning the duty to consult constrains the Governor in Council under

section 54 of the NEB Act and affects this Court’s review of the Governor in Council’s decision ( Vavilov , paragraphs 111–114 ). [ 38 ] The practical requirements of the duty to consult have been compared to administrative law standards of procedural fairness ( Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511 ( Haida Nation ), paragraph 41 ; Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53 , [2010] 3 S.C.R. 103 ( Beckman ), paragraph 46 ).

The cases on point emphasize that consultation need not be perfect ( Haida Nation , paragraph 62 ; TWN 2018 , paragraphs 226, 508). It follows that the Governor in Council was entitled to give the government actors leeway in assessing whether their efforts resulted in compliance with the duty to consult. [ 39 ] The words of this Court in Gitxaala Nation are apposite here (paragraph 182): … In this case, the subjects on which consultation was required were numerous, complex and dynamic, involving many parties.

Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ.

(See also TWN 2018 , paragraphs 509, 762; Ahousaht First Nation v. Canada (Fisheries and Oceans) , 2008 FCA 212 , 297 D.L.R. (4th) 722 ( Ahousaht First Nation ) , paragraph 54 ; Canada v. Long Plain First Nation , 2015 FCA 177 , 388 D.L.R. (4th) 209 ( Long Plain First Nation ) , paragraph 133 ; Yellowknives Dene First Nation v.

Canada (Aboriginal Affairs and Northern Development) , 2015 FCA 148 , 474 N.R. 350 ( Yellowknives Dene First Nation ), paragraph 56 .) [ 40 ] For example, it has been said that to satisfy the duty, consultation must be “reasonable” ( Haida Nation , paragraphs 62–63, 68 ; Gitxaala Nation , paragraphs 8, 179, 182–185 ; TWN 2018 , paragraphs 226, 508–509; Squamish First Nation v.

Canada (Fisheries and Oceans) , 2019 FCA 216 , 436 D.L.R. (4th) 596 ( Squamish First Nation ), paragraph 31 ). “Reasonable” consultation means Canada must show that it has considered and addressed the rights claimed by Indigenous peoples in a meaningful way ( Clyde River (Hamlet) v.

Petroleum Geo-Services Inc. , 2017 SCC 40 , [2017] 1 S.C.R. 1069 ( Clyde River ), paragraph 41 ; Squamish First Nation , paragraph 37 ; Haida Nation , paragraph 42 ). “Meaningful” is a standard that also appears in the case law ( Gitxaala Nation , paragraphs 179, 181, 231– 234 ; TWN 2018 , paragraphs 6, 494–501, 762; Haida Nation , paragraphs 10, 36, 42 ; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 , [2004] 3 S.C.R. 550 ( Taku River ), paragraphs 2 , 29; Chippewas of the Thames First Nation v.

Enbridge Pipelines Inc. , 2017 SCC 41 , [2017] 1 S.C.R. 1099 ( Chippewas of the Thames ), paragraphs 32 , 44). [ 41 ] So what do the words “reasonable” and “meaningful” mean in this context? The case law is replete with indicia , such as consultation being more than “blow[ing] off steam” ( Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage) , 2005 SCC 69 , [2005] 3 S.C.R. 388 ( Mikisew 2005 ), paragraph 54 ), the Crown possessing a state of open-mindedness about accommodation ( Gitxaala Nation , paragraph 233 ), the Crown exercising “good faith” ( Haida Nation , paragraph 41 ; Clyde River , paragraphs 23–24; Chippewas of the Thames , paragraph 44), the existence of two-way dialogue ( Gitxaala Nation , paragraph 279 ), the process being more than “a process for exchanging and discussing information” ( TWN 2018 , paragraphs 500 – 502), the conducting of “dialogue … that leads to a demonstrably serious consideration of accommodation” ( TWN 2018 , paragraph 501) and the Crown “grappl[ing] with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns” ( TWN 2018 , paragraph 6) .

In cases like this where deep consultation is required, the Supreme Court has suggested the following non-binding indicia ( Chippewas of the Thames , paragraph 47; Haida Nation , paragraph 44 ; Squamish First Nation , paragraph 36 ; see also Yellowknives Dene First Nation , paragraph 66 ): • the opportunity to make submissions for consideration; • formal participation in the decision-making process; • provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision; and • dispute resolution procedures like mediation or administrative regimes with impartial decision makers. [ 42 ] Examples and indicia in the case law are nothing more than indicators.

The Supreme Court, while providing us with many of these indicia , has made it clear that what will satisfy the duty will vary from case to case, depending on the circumstances ( Haida Nation , paragraph 45 ). So where do we get guidance? [ 43 ] The Supreme Court has identified the concepts that animate the duty.

In its view, the “controlling question” as to what is “reasonable” or “meaningful” consultation is “what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake” ( Haida Nation , paragraph 45 ). [ 44 ] The Supreme Court’s most recent discussion of the honour of the Crown appears in paragraphs 21 and 22 of the majority reasons in Mikisew Cree First Nation v.

Canada (Governor General in Council) , 2018 SCC 40 , [2018] 2 S.C.R. 765 ( Mikisew 2018 ): …. [The honour of the Crown] recognizes that the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples creates a special relationship that requires that the Crown act honourably in its dealings with Aboriginal peoples ( Manitoba Metis , at para. 67; B. Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 436) .

The underlying purpose of the honour of the Crown is to facilitate the reconciliation of these interests ( Manitoba Metis , at paras. 66-67). One way that it does so is by promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes ( Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 , [2004] 3 S.C.R. 550, at para. 24 ).

This endeavour of reconciliation is a first principle of Aboriginal law. [ 45 ] However, the precise content of the honour of the Crown also turns on the circumstances of the particular case ( Mikisew 2018 , paragraph 24): …. [T]his Court has made clear that the duties that flow from the honour of the Crown will vary with the situations in which it is engaged ( Manitoba Metis , at para. 74).

Determining what constitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on the circumstances ( Haida Nation , at para. 38 ; Taku River , at para. 25; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 , [2010] 2 S.C.R. 650, at paras. 36-37 ). [ 46 ] Further on in Mikisew 2018 , the Court identified consultation as a requirement that flows from the honour of the Crown.

Consultation is connected to the honour of the Crown because it is not honourable for Canada to act unilaterally in a way that could affect the rights of Indigenous peoples, without first engaging in meaningful consultation ( Mikisew 2018 , paragraph 25): The duty to consult is one such obligation. In instances where the Crown contemplates executive action that may adversely affect s. 35 rights, the honour of the Crown has been found to give rise to a justiciable duty to consult (see e.g. Haida Nation , Taku River , Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage) , 2005 SCC 69 , [2005] 3 S.C.R. 388, and Little Salmon ). This obligation has also been applied in the context of statutory decision-makers that — while not part of the executive — act on behalf of the Crown ( Clyde River (Hamlet) v. Petroleum Geo-Services Inc ., 2017 SCC 40 , [2017] 1 S.C.R. 1069, at para. 29 ). These cases demonstrate that, in

certain circumstances, Crown conduct may not constitute an “infringement” of established s. 35 rights; however, acting unilaterally in away that may adversely affect such rights does not reflect well on the honour of the Crown and may thus warrant intervention on judicialreview. [47] The other controlling concept is reconciliation. The best description of reconciliation to date appears in the following passagefrom Beckman (paragraph 10): The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s.35 of the Constitution Act, 1982.

The modern treaties, including those at issue here, attempt to further the objective of reconciliation notonly by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship betweenAboriginal and non-Aboriginal communities. Thoughtful administration of the treaty will help manage, even if it fails to eliminate, someof the misunderstandings and grievances that have characterized the past.

Still, as the facts of this case show, the treaty will notaccomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercialcontract. The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future is moreimportant than the past.

A canoeist who hopes to make progress faces forwards, not backwards. [48] Reconciliation must nonetheless begin by looking back and developing a deep understanding of the centuries of neglect anddisrespect toward Indigenous peoples, well-summarized in a number of reports and studies (see, e.g., Royal Commission on AboriginalPeoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996); Truth and ReconciliationCommission of Canada, Honouring the truth, reconciling for the future:

summary of the final report of the Truth and ReconciliationCommission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015)). Too often decisions affecting Indigenouspeoples have been made without regard for their interests, dignity, membership and belonging in Canadian society, with terrible neglectand damage to their lives, communities, cultures and ways of life. Worse, almost always no effort was made to receive their views andtry to accommodate them—quite the opposite. The duty to consult is aimed at helping to reverse that historical wrong. [49] Reconciliation also looks forward.

It is meant to be transformative, to create conditions going forward that will preventrecurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenouspeoples and all others work together to advance our joint welfare with mutual respect and understanding, always recognizing that whilemajorities will sometimes prevail and sometimes not, concerns must always be taken on board, considered and rejected only afterinformed reflection and for good reason.

This is a recognition that in the end, we all must live together and get along in a free anddemocratic society of mutual respect. [50] Reconciliation in this sense is about relationship (Mark D.

Walters, “The Jurisprudence of Reconciliation: Aboriginal Rights inCanada” in Will Kymlicka and Bashir Bashir, eds, The Politics of Reconciliation in Multicultural Societies (Oxford: Oxford UniversityPress, 2008) 165, page 168): Reconciliation as relationship … is always … reciprocal, and … invariably involves sincere acts of mutual respect, tolerance, andgoodwill that serve to heal rifts [and includes] facing past evil openly, acknowledging its hurtful legacies, and affirming the commonhumanity of everyone involved. [It] is about peace between communities divided by conflict, but it is also about establishing a sense ofself-worth or internal peace within those communities. [51] The process of meaningful consultation can result in various forms of accommodation.

But the failure to accommodate in anyparticular way, including by way of abandoning the Project, does not necessarily mean that there has been no meaningful consultation. [52] Moreover, the fact that consultation has not led the four applicants to agree that the Project should go ahead does not mean thatreconciliation has not been advanced. The goal is to reach an overall agreement, but that will not always be possible (Ktunaxa Nation v.British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 (Ktunaxa Nation), paragraphs83, 114).

The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome. [53] Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples wouldeffectively have a veto over projects such as this one. The law is clear that no such veto exists (Haida Nation, paragraphs 62–63, citing R.v. Nikal, (SCC), [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658, paragraph 110; Chippewas of the Thames,paragraph 59; Ktunaxa Nation, paragraph 83; R. v.

Marshall, (SCC), [1999] 3 S.C.R. 533, (1999), 179 D.L.R. (4th)193, paragraph 43; Gitxaala Nation, paragraph 179; TWN 2018, paragraph 494; Yellowknives Dene First Nation, paragraph 56). At somejuncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement aboutwhether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail. [54] Some important ramifications arise from this.

First, imposing too strict a standard of “perfection”, “reasonableness” or“meaningfulness” in assessing whether the duty to consult has been adequately met would de facto create a veto right. [55] Second, the case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, theycannot tactically use the consultation process as a means to try to veto it (Haida Nation, paragraph 42; Prophet River First Nation v.British Columbia (Environment), 2017 BCCA 58, 408 D.L.R. (4th) 201 (Prophet River BCCA), paragraph 65; Halfway River FirstNation v.

British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1, paragraph 161; Ahousaht First Nation,paragraphs 52–53; Long Plain First Nation, paragraphs 158–163; R. v. Douglas et al, 2007 BCCA 265, 278 D.L.R. (4th) 653, paragraph39).

Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent withreconciliation and would, if tolerated, allow for the effective use of a veto right. [56] Reconciliation as relationship can only be advanced through consultation when the respective parties commit to the process,avoid counterproductive tactics, get to the substance of the issues of concern and exercise good faith—Indigenous peoples bycommunicating their concerns in the clearest possible way and the Crown by listening to, understanding and considering the Indigenouspeoples’ points with genuine concern and an open mind throughout.

Only then can the process lead to accommodations that respond tothe concerns of the Indigenous peoples.

[ 57 ] When adequate consultation has taken place but Indigenous groups maintain that a project should not proceed, their concerns can be balanced against “competing societal interests” . This is the role of accommodation ( Chippewas of the Thames , paragraphs 59–60; Haida Nation , paragraph 50 ; TWN 2018 , paragraph 495). [ 58 ] Like consultation, accommodation does not guarantee outcomes. It is an ongoing “give and take” process.

One way to accommodate is to impose conditions on a project proponent, such as ongoing participation of Indigenous groups (see, e.g., Chippewas of the Thames , paragraph 57; TWN 2018 , paragraph 637).

Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups ( Chippewas of the Thames , paragraph 60; Haida Nation , paragraphs 48–49 ; Ktunaxa Nation , paragraph 114 ). [ 59 ] The duty to accommodate requires Canada to “balance Aboriginal concerns reasonably with the potential impact … on the asserted right or title and with other societal interests” ( Haida Nation , paragraph 50 ). Canada can assign this balancing task to an administrative agency, as it has done in

part in this case, to the NEB. As well, in this case,

section 54 of the NEB Act permits the Governor in Council to weigh all the considerations.

(3) Relevance of post-approval consultation [ 60 ] Contrary to what the applicants assert, post-approval consultation is both relevant and important. The duty to consult is owed by the Crown and the honour of the Crown is always in play. [ 61 ] The Governor in Council’s decision speaks extensively to the fact that consultation is an ongoing process (see in this respect the Explanatory Note). Further consultation will take place, for example, in connection with the CER’s future determination of routing and permits.

The certainty of further consultations and the certainty of the terms on which they will be conducted are factual elements that the Governor in Council was entitled to take into account when making its decision. Even if Canada’s consultation and accommodation measures up to June 18, 2019, were found to be inadequate, consultation activities that took place after the issuance of the Order in Council would remain relevant.

Sending the decision back to the Governor in Council yet again for reconsideration would be pointless if the inadequacies have since been resolved ( Vavilov , paragraph 142 ; MiningWatch Canada v. Canada (Fisheries and Oceans) , 2010 SCC 2 , [2010] 1 S.C.R. 6, paragraphs 43–52 ; Stemijon Investments Ltd. v. Canada (Attorney General) , 2011 FCA 299 , 341 D.L.R. (4th) 710, paragraph 44 ).

(4) The importance of the matter [ 62 ] Another contextual factor that affects the reasonableness analysis in this case is the importance of this matter to those directly impacted by the Project ( Vavilov , paragraphs 133–135 ). The duty to consult has underpinnings in

section 35 of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], and forms the legal basis for positive long- term relationships. This affects the extent and quality of the reasons that the Governor in Council is expected to provide in support of its decision. [ 63 ] This being said, as will be seen, the reasons offered by the Governor in Council, both in the Recitals and in the accompanying Explanatory Note, are more than sufficient in providing justification for the decision.

This is even more so when it is recognized that justification for an administrative decision may also be found by examining the record that was before the decision maker ( Vavilov , paragraphs 91–98 ). III. Was the Governor in Council’s decision reasonable? [ 64 ] In our view, the Governor in Council’s decision was reasonable.

It is acceptable and defensible in light of both the outcome reached on the facts and the law and the justification offered in support. [ 65 ] As the Governor in Council has explained in the Recitals and in the Explanatory Note, and as is apparent from the record before us, it could reasonably adopt the view that the limited flaws identified by this Court in TWN 2018 had been adequately addressed and that reasonable and meaningful consultation had taken place. [ 66 ] The Governor in Council’s explanations do not suffer from errors in reasoning or logical deficiencies of the sort identified by the Supreme Court in Vavilov (paragraphs 102–104 ).

Taken together, the explanations show a chain of reasoning progressing from reasonable views of the evidence before it to plausible conclusions well within the bounds of the governing legislation. [ 67 ] Although the Governor in Council had previously approved the Project and, in the course of doing so, had considered the duty to consult to have been met, in making the present decision it properly did not consider itself constrained by its prior decision.

It looked at the issue of Canada’s compliance with the duty to consult afresh based on its understanding of the duty to consult and the facts before it. [ 68 ] The Governor in Council has demonstrated that it understood the legal content of the duty to consult (Explanatory Note, page 43, third whole paragraph). It has also shown that it understood the import of this Court’s decision in TWN 2018 and the shortcomings in its earlier consultation process (Order in Council, page 5, fourth whole paragraph; Explanatory Note, page 45, second whole paragraph).

It instructed itself, appropriately and reasonably, as follows (Order in Council, page 6, first whole paragraph): Whereas, on October 5, 2018, the Government reinitiated Phase III consultations, in keeping with the Court’s decision and direction, and guided by the objectives of meeting its consultation obligations under

section 35 of the Constitution Act, 1982 , and its commitments to advance reconciliation with Indigenous peoples, engaged in substantive, meaningful two-way dialogue in order to fully understand the concerns raised and the nature and seriousness of potential impacts on rights and, where appropriate, to work collaboratively with Indigenous groups to identify and provide accommodations, and respond to concerns raised in these and the previous Phase III consultations in a flexible manner that takes into account the potential impacts and needs of each Indigenous group; [ 69 ] It also reviewed some of the work that had been done to that end and the accommodations made (Order in Council, page 6) and summarized these in great detail in the Explanatory Note (pages 45–49).

[ 70 ] This work included reinitiating consultations directly with potentially affected Indigenous groups, with a focus on responding to and remedying the concerns raised by this Court in TWN 2018 ; retaining a recognized expert with extensive experience in Indigenous matters in the person of former Supreme Court Justice Frank Iacobucci, to oversee and provide guidance in respect of the re-initiated consultations; developing a process for meaningful, two-way dialogue between Indigenous groups and Canada through consultation teams composed of federal officials drawn from various federal departments, and led by senior government officials operating at the Director General level and reporting to the Assistant Deputy Minister responsible for the Consultation Secretariat; and providing a clear mandate for consultation teams to discuss and agree to accommodations, where appropriate (Labonté affidavit, paragraphs 4, 51, Canada record, page 2; Order in Council, page 6; Explanatory Note, pages 45–46). [ 71 ] The Governor in Council explained that in the end, a detailed Crown Consultation and Accommodation Report (CCAR) was provided to all members of the Governor in Council and was publicly disclosed, including to Indigenous groups (Explanatory Note, page 47).

The CCAR summarized the impacts of the Project on Indigenous interests and concerns, conclusions made by the NEB, the perspectives and views of the Indigenous peoples, Canada’s analysis of the impact on Indigenous rights and interests and future steps that will mitigate the impact and address the concerns (Explanatory Note, pages 47–48). [ 72 ] Also placed before the Governor in Council was a detailed

summary of new accommodation measures and initiatives that would avoid or mitigate the effects on Indigenous interests, including the Salish Sea Initiative, the Co-Developing Community Response program, the Enhanced Maritime Situational Awareness program, the Marine Safety Equipment and Training program, the Quiet Vessel Initiative, the Aquatic Habitat Restoration Fund, the Terrestrial Cumulative Effects Initiative, and the Terrestrial Studies Initiative (Explanatory Note, pages 48–49). [ 73 ] In making its decision, the Governor in Council considered the recommendations made by the NEB and adopted them after explaining why (Explanatory Note, pages 53–63).

It also considered its power to impose new conditions on any approval of the Project, discussed the considerations in great detail, and decided to implement amendments to the NEB conditions (Explanatory Note, pages 63– 65). [ 74 ] On the issue of Canada’s compliance with the duty to consult, the Governor in Council concluded as follows (Order in Council, page 7, last whole paragraph): Whereas the Governor in Council, having considered Indigenous concerns and interests of 129 groups as set out in the Crown Consultation and Accommodation Report for the Reconsideration of the Trans Mountain Expansion Project dated June 13, 2019, and having considered Justice Iacobucci’s oversight, direction and advice, is satisfied that: the consultation process undertaken is consistent with the honour of the Crown and meets the guidance set forth in [ TWN 2018 ] for meaningful two-way dialogue focused on rights and the potential impacts on rights, and that the concerns, and potential impacts to interests including established and asserted Aboriginal and treaty rights identified in the consultation process have been appropriately accommodated; [ 75 ] It cannot be said that the decision reached by the Governor in Council is outside the bounds of

section 54, reasonably interpreted. None of the applicants made that submission. Nor can it be said, based on these justifications and the record before us, that the Governor in Council did not adequately, meaningfully and reasonably address and consider the key issues raised by this Court in TWN 2018 and the parties during the renewed consultation. [ 76 ] In this case, the Governor in Council’s key justifications for deciding as it did are fully supported by evidence in the record.

The evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations, all very much consistent with the concepts of reconciliation and the honour of the Crown. [ 77 ] Contrary to what the applicants assert, this was anything but a rubber-stamping exercise. The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.

It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law. [ 78 ] Significantly, the consultation process initiated by Canada invited the participation of 129 Indigenous groups potentially impacted by the Project and, in the end, more than 120 either support it or do not oppose it. As well, benefit agreements had been signed with 43 Indigenous groups as of June 22, 2019 (Explanatory Note, page 43, second whole paragraph). The Governor in Council was entitled under

section 54 to take this broad consensus into account in concluding that the Project was in the public interest. This is a factor that also speaks to the fact that the process that has taken place is consistent with the objectives of reconciliation and the honour of the Crown (Order in Council, page 7, last whole paragraph). [ 79 ] As mentioned above, in conducting reasonableness review, our focus must be on the reasonableness of the Governor in Council’s decision, including the outcome reached and the justification for it.

Although the parties’ submissions raise a number of specific concerns, our focus must remain on the decision itself. It bears noting that a decision can be reasonable even though some affected parties continue to have strong objections to it on the merits. [ 80 ] At an early stage in these proceedings, the applicants were twice invited to focus on the Governor in Council’s decision and to address the standard of review (see the terms of the Leave Order, above, and discussion of these matters in the decision of this Court in Ignace v. Canada (Attorney General) , 2019 FCA 266 , paragraphs 13–20 ).

Instead, they chose to focus on the merits of the decision. [ 81 ] As a result, their submissions are extensive in scope, referring to an evidentiary record of some 60 000 pages. In effect, the four applicants argued their applications as if they were seeking a freestanding declaration that the duty to consult had not been met. [ 82 ] Under their approach, the Governor in Council’s decision was quite beside the point.

Indeed, we received no submissions from the applicants on the nature and quality of the Governor in Council’s decision, the constraints acting upon the Governor in Council including the governing legislation, or the justification offered in support of the decision, with a view to establishing the unreasonableness of the decision. The submissions that we received following the release of Vavilov do not put into question any of the

observations we have made concerning the reasonableness of the Governor in Council’s decision under the framework of analysis set out in that decision. [ 83 ] In light of the above analysis and given the applicants’ failure to focus on a review of the decision of the Governor in Council in accordance with the governing standard of review, nothing more need be said in order to conclude that the decision of the Governor in Council was reasonable. [ 84 ] Nevertheless, we have decided to respond to the applicants’ detailed submissions on the terms in which they have articulated them.

We recognize that this approach is not required by the analysis of reasonableness we are to follow under Vavilov and the Supreme Court’s first two decisions after Vavilov , Bell Canada v. Canada (Attorney General) , 2019 SCC 66 , 441 D.L.R. (4th) 155 , and Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 , 441 D.L.R. (4th) 269 . However, the shortcomings on which the applicants were asked to comment pursuant to the Leave Order were detailed and specific in nature and, to that extent, may have led the applicants to adopt a more merits-based approach than that sanctioned in Vavilov .

It is also important that we defuse any suggestion that the Court did not consider the applicants’ submissions. IV.

Response to the applicants’ specific submissions [ 85 ] Our review of the applicants’ detailed submissions leads us to conclude that even if we were reviewing the Governor in Council’s decision on the basis of a more stringent standard, i.e. correctness, we would still not be persuaded that interference with the Governor in Council’s decision is warranted. [ 86 ] The applicants’ submissions are essentially that the Project cannot be approved until all of their concerns are resolved to their satisfaction.

If we accepted those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto> veto right over it. [ 87 ] Overall, each of the applicants’ detailed submissions fails for one or more of five reasons: • they raise matters that could have been raised before this Court in TWN 2018 but were not and, accordingly, the applicants are estopped from raising them now; • they raise matters that were raised before this Court in TWN 2018 and that were dealt with by this Court; • they raise matters outside of the scope of the issues the Leave Order permitted to be raised; • they have no merit on their own terms; what is said to be unaddressed has in fact been adequately addressed by Canada; or • they, alone or in combination with other matters, do not take away from the overall reasonableness of the Governor in Council’s decision that the duty to consult had been adequately met and that, overall, the Project is in the public interest. [ 88 ] The analysis of each of the applicants’ case-specific contentions follows.

A. Coldwater [ 89 ] The focus of Coldwater’s concerns was on the potential impact of the Project on the aquifer from which it draws its drinking water supply. In TWN 2018 , this Court identified two shortcomings in the consultations that took place between Canada and Coldwater.

(1) The flaws identified in TWN 2018 were remedied [ 90 ] This Court first noted that Canada conducted the consultations under the erroneous assumption that it could not impose additional conditions on the proponent beyond those imposed by the NEB. This flaw has now been addressed. Canada has formally acknowledged that it has this power.

And it has exercised it by initiating a new Proponent Commitment to Coldwater made binding on Trans Mountain by the Governor in Council’s amended NEB Condition 6. [ 91 ] The second flaw identified in TWN 2018 was that Condition 39 provided no certainty about the pipeline route or how the NEB would assess risks to the aquifer. Before us, Coldwater maintains that, if anything, more uncertainty about the pipeline route and risk to its aquifer has been created as a result of the renewed consultation process and the Proponent Commitment.

Not only was the Proponent Commitment communicated too late in the process, but the Order in Council was issued without the benefit of a completed hydrogeological study. [ 92 ] Coldwater’s concern with the hydrogeological study is that the December 31, 2019, date for its production pursuant to the new Proponent Commitment did not allow for a sufficient period to gather baseline data. It says that data collection for at least one full year after the installation of the monitoring wells—preferably two—is required.

During the renewed consultation process, Coldwater also made clear its view that the duty to consult could not adequately be met if the Project was approved before the hydrogeological study had been fully completed. Coldwater expressed this view in a letter to Canada in the following words (Exhibit A to the Taylor affidavit No. 1, Canada record, page 13451): … baseline information is needed to understand the plumbing system, then risks can be assessed. Only once you understand what you are trying to protect can the ability of mitigation measures to manage risks be considered.

Specifically, you cannot compare the relative risks of the alternative routes without the aquifer study nor can you consider the adequacy of any proposed pipeline protection measures until the aquifer study is complete . [Emphasis added.] [ 93 ] This very issue was considered by this Court in TWN 2018 . Coldwater’s argument was that the NEB should have considered the West Alternative (a possible alternate route) during the hearing. The Court rejected this argument ( TWN 2018 , paragraphs 375–385).

Specifically, it held that should the hydrogeological study favour an alternative route, the NEB will be in a position to order a variation

of the route during the detailed route hearing. Indeed, the NEB had the power to approve a route outside of the approved corridor and could at that time choose the West Alternative if it felt it was the better route ( TWN 2018 , paragraphs 383–384): Additionally,

section 21 of the National Energy Board Act permits the Board to review, vary or rescind any decision or order, and in Emera the Board recognized, at page 31, that where a proposed route is denied on the basis of evidence of a better route outside of the approved pipeline corridor an application may be made under

section 21 to vary the corridor in that location. It follows that the Board would be able to vary the route of the new pipeline should the hydrogeological study to be filed pursuant to Condition 39 require an alte

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