In a lengthy 146-page decision, the Federal Court of Appeal quashed the Governor in Council’s order, and turn, Enbridge’s pipeline certificates.
Lisa C. Fong, of Ng Ariss Fong, acted for Heiltsuk Tribal Council and Kitasoo Xai’Xais Band Council.
The court found that Canada’s consultation with First Nations was “unacceptably flawed and fell well short of the mark”.
Canada structured a five-phase consultation process, where Phase 4 “was the first and last opportunity before the Governor in Council’s decision to engage in direct consultation and dialogue with affected First Nations.” The court reviewed Canada’s consultation and Phase 4, and concluded that Canada failed to fulfill its duties to aboriginal peoples.
The Governor in Council considered wrong information
Heiltsuk and Kitasoo Xai’Xais identified to Canada several errors in the Crown consultation report, including errors relating to their position on mitigation, errors about where the tanker routes crossed their territories, and the inadequacy of how their concerns were described to government. The court noted that the record did not show these errors being corrected or brought to the attention of the Governor in Council.
The Governor in Council was missing information
The court noted a “significant concern” about a “lack of meaningful dialogue” in Phase 4. It noted that Canada’s representatives told First Nations that they were on a deadline, and not authorized to make decisions. As a result, “a number of concerns raised by Aboriginal Groups – in our view, concerns central to their legitimate interests – were left unconsidered and undiscussed.”
For example, the court specifically mentioned the “insufficient information” that Heiltsuk needed to assess the impacts on their Aboriginal rights, especially information “regarding the risk of an oil spill to herring-spawn-on-kelp—a resource over which the Heiltsuk have an Aboriginal right to fish on a commercial basis….” The court found that Heiltsuk “never received an explanation why the missing information concerning a resource necessary for their sustenance was not required”.
- The court specifically mentioned Chief Councillor Cecil Reid describing “the importance of the herring industry to the Heiltsuk and the ‘horrific’ consequences that an oil spill would have on their livelihood”, and his question to Canada, “…why did you come without the authority to discuss our concerns and react to them in a positive way so that we have some comfort that this thing is being taken seriously? … How can you make a decision until all the information is in?” 
- The court specifically noted Chief Councillor Marilyn Slett asking Canada if it would be available for further consultations, to which Canada’s representative, Brett Maracle, said, “I can’t say, because that would be basically the [M]inister’s agreeing to [a] delay of the process.”
The court also specifically mentioned the “missing information” addressed by Kitasoo Xai’Xais – information about spill modelling and assessment, the behaviour (or fate) of bitumen in the water, a baseline marine inventory and what the spill recovery would look like.
- The court found that Kitasoo Xai’Xais “never received Canada’s explanation why the missing information was not required and why Canada rejected the assertion that Kitasoo had not been adequately consulted.”
- The court noted Chief Clark Robinson asking Canada’s representatives, “Who will engage in consultation, will you?” The court also noted Canada’s response about not being decision makers that it said “shows just how short of the mark the Phase IV consultation was.”
The court ultimately decided that Canada failed, during Phase 4, to “engage, dialogue and grapple with the concerns expressed to it in good faith by all of the applicant/appellant First Nations.” The court referred to three faults:
- “Missing 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.”
- “Missing was a real and sustained effort to pursue meaningful two-way dialogue.”
- “Missing was someone from Canada’s side empowered to do more than take notes, someone able to respond meaningfully at some point.”
The court also took issue with Canada
- using template letters that provided no explanation about what, if any, consideration was given to mitigation measures;
- refusing to disclose its strength of claims’ analyses about aboriginal claims to rights and title; and
- only discussing mitigation of impacts, and declining to discuss the content of the impacts on First Nations’ rights and titles.
Canada (and the Governor in Council) failed to provide reasons
Canada failed to provide reasons which showed that Aboriginal concerns were considered and how those concerns were factored into the decision. The court accepted the submissions of Heiltsuk and Kitasoo Xai’Xais that where the Crown must balance multiple interests, a safeguard requiring that Canada set out how Aboriginal concerns impact decision-making is important. Without a safeguard, other issues may overshadow or displace the impacts on Aboriginal rights. Canada failed to fulfil to satisfy this safeguard by showing the impact of Aboriginal concerns in its template letters, the environmental assessment report, or in the Governor in Council’s order. “This raises a serious question whether the Governor in Council actually considered that issue….”
The court quashed the Order in Council, and invalidated the pipeline certificates.
Gitxaala Nation and others v. Her Majesty the Queen, 2016 FCA 187
Lisa C. Fong and Michael Ng