[2013] 1 F.C.R. D-9
Aboriginal Peoples
Duty to consult—Application seeking prerogative relief against respondents in connection with ongoing National Energy Board regulatory review of Northern Gateway Pipeline Project (Gateway Project)—Applicant contending that federal Crown’s duty to consult breached since applicant excluded from participating in federal interdepartmental review of marine safety factors relevant to Gateway Project known as TERMPOL Review (TRP)—Applicant, Indian Band within meaning of Indian Act, R.S.C., 1985, c. I-5—At time of hearing, TRP Committee’s work completed, report prepared—Applicant seeking order quashing TRP report, directing respondent Minister to reopen process to allow for meaningful consultation—Respondents contending process for consultation underway within context of ongoing work of Joint Review Panel (JRP) established under terms of Canadian Environmental Assessment Act, S.C. 1992, c. 37—Gateway Project proposing to build, operate dual oil, condensate pipelines running from Alberta to British Columbia—Applicant, standing to be significantly affected if Gateway Project proceeding, never invited to participate in Gateway Project TRP Committee’s work—Whether Crown’s proposed framework for consultation with applicant legally sufficient—Crown’s duty of consultation required to be timely, meaningful; must contribute to ultimate goal of reconciliation—Process needn’t be perfect, not subject of strict template or protocol—Applicant’s assumption that JRP will not have open mind about deficiencies in TRP report not supported by record—From beginning, Crown acknowledging consultation obligation to all Aboriginal groups, including applicant, potentially affected by Gateway Project—Consulting affected First Nations before establishing consultation framework now relied upon to fulfill consultation obligations—JRP process sufficiently robust that any weaknesses in TRP report can be addressed by applicant, accommodated by JRP—Weight attributed to TRP findings, recommendations limited by 2001 TERMPOL Code—TRP report mainly technical analysis based on objectively verifiable data—Process followed representing reasonable way to address First Nations’ concerns—Premature for Court to intervene before process reaching conclusion—Nothing suggesting JRP will not listen fairly to applicant’s concerns, weigh all available evidence, reach own conclusions—Application dismissed.
Gitxaala Nation v. Canada (Transport) (T-300-12, 2012 FC 1336, Barnes J., judgment dated November 19, 2012, 26 pp.)