Canada: Federal Court Provides Guidance On Adequacy Of Consultation About Environmental Assessments Of Major Resource Projects

On April 23, 2013, the Federal Court of Canada released its decision dismissing an application commenced by the Conseil des Innus de Ekuanitshit (the Applicant) to judicially review the Order in Council (OIC) issued on the advice of the federal Cabinet by the Governor in Council (GIC) releasing Nalcor Energy's Lower Churchill Hydroelectric Generation Project (the Generation Project) from a federal environmental assessment.

The decision in Conseil des innus de Ekuanitshit c. Canada (Procureur général),1 is significant because it (a) provides guidance on evaluating the adequacy of Aboriginal consultation in the context of the environmental assessment (EA) of major resource projects under the Canadian Environmental Assessment Act, 1992 (CEAA); (b) considers, for the first time, the applicable standard for reviewing GIC decisions made under the CEAA; and (c) concludes that the Applicant was barred from challenging the scoping of the Generation Project due to unreasonable delay.


The Generation Project is the undertaking to construct and operate two hydroelectric generating facilities on the lower Churchill River in Labrador. Registered in 2006, it was subject to a joint review panel environmental assessment under the federal CEAA and the Newfoundland and Labrador Environmental Protection Act (EPA). The panel issued its report in August 2011 (the JRP Report).

In 2009, Nalcor registered a second project – the Labrador-Island Transmission Link Project – which was subject to a separate review process under the CEAA and EPA. In 2010, after the Supreme Court of Canada's MiningWatch Canada v. Canada (Fisheries and Oceans)2 decision was issued, the federal government re-evaluated the scoping and tracking of all projects undergoing review under the CEAA. The federal government decided that the Transmission Link and Generation Project would continue to be subject to separate environmental assessments, a decision that was communicated to the public, including the Applicant.

The Applicant was afforded numerous opportunities for Crown consultation before, during and after the EA process. The EA process itself was designed to be an integral component of the Crown's Aboriginal consultation. Prior to issuing the OIC, the Crown failed to expressly communicate to the Applicant how it had considered the Applicant's concerns and how they would be accommodated.

During the regulatory process, the proponent and the Applicant engaged in extensive consultation and had commenced negotiations of a "community consultation agreement," whereby the Applicant would receive funds from the proponent to facilitate consultation in respect of the Generation Project. The parties were unable to reach agreement, and therefore no additional funding was provided by the proponent to facilitate consultation.

On March 15, 2012, the federal government issued its response to the JRP Report and the OIC, concluding that the Generation Project is likely to cause significant adverse environmental effects that are justified in the circumstances.

The Issues

The Applicant sought to, among other things, set aside the OIC on the basis that (a) the Applicant was not adequately consulted and accommodated in relation to the Generation Project; (b) the OIC was unreasonable and taken on the basis of inadequate or incorrect information; and (c) the Generation Project was improperly scoped.

The Decision

Adequacy of Aboriginal Consultation

In determining that the Crown had met its constitutional duty to consult and accommodate the Applicant in respect of the OIC, the Federal Court made three key findings. First, it found that the challenge to the entirety of the Crown consultation process regarding the Generation Project was premature. The Crown had established a five-phase consultation process, which afforded Aboriginal groups opportunities to consult at each phase. The judicial review was initiated following the conclusion of phase four; consultation associated with phase five, the permitting stage, had not yet taken place. For that reason, the Court concluded that it was premature to assess the adequacy of consultation in respect of the entire process. It did, however, evaluate the adequacy of consultation to date.

Second, the Court examined the proponent's efforts to consult with the Applicant, which included a range of activities. The proponent and Applicant had commenced negotiations of a community consultation agreement, whereby the Applicant would receive funds to facilitate consultation in respect of the Generation Project. The parties were unable to reach agreement, and therefore no funding was provided by the Proponent to facilitate consultation. On the facts, the Court found that the proponent was committed to providing the Applicant with meaningful opportunities to consult. One of the reasons that no agreement was concluded was that the Applicant had (a) rejected outright the offer of $87,500 in financial assistance made by the proponent; and (b) made unsubstantiated and unreasonable demands for $600,000. The Court held that if the Applicant believed the offer was insufficient, it was incumbent on the Applicant to present a counter-offer that demonstrated that it was truly engaged in the process. Further, the failure on the part of the Applicant to provide a meaningful counter-offer had frustrated the consultation process. In the context of proponent-Aboriginal group relations, this decision reflects the Supreme Court of Canada dicta in Haida Nation that both parties should commit to a meaningful process of consultation and that Aboriginal claimants must not take unreasonable positions to frustrate consultation efforts.

Third, the Applicant argued that the Crown had failed to adequately consult because it failed to demonstrate that it had meaningfully considered the Applicant's concerns. On the facts, although the Applicant had participated in the consultation process and the process was reasonable, the Crown had not expressly responded to the Applicant's stated concerns, nor did it explain how its concerns were accommodated in the decision that accompanied the OIC. In this regard, the Court noted that responsiveness is a key requirement of honourable consultation. The Court characterized this omission as a "misstep," but it did not invalidate an otherwise reasonable consultation. Moreover, the Crown's failure was mitigated by the fact that the Applicant's concerns were expressly considered in the JRP Report, which was before the GIC, and the province had committed to carrying out the recommendations in this regard.

Governor in Council Decision

For the first time, the Federal Court considered the standard of review for GIC decisions made under subsection 37(1.1) of the CEAA, holding that courts should intervene only if the (a) CEAA statutory process was not properly followed; (b) decision was made without regard for the purpose of the CEAA; or (c) decision had no reasonable basis in fact, which is tantamount to an absence of good faith. In this case, the Court found that the OIC was reasonable and in accord with the CEAA, and that there was no evidence of bad faith or a breach in the statutory process.

This approach affords the GIC a great degree of deference and establishes an evidentiary burden for parties seeking to challenge course-of-action decisions under the CEAA. Although the decision dealt with the CEAA 1992, it is likely that the same standard of review will be applied in future to decisions under section 52 of CEAA 2012.

Project Splitting

Although the Federal Court held that the Applicant could not successfully challenge the scoping decision because of the statutory time limits in the Federal Courts Act, the Court affirmed the (a) federal government's scoping decisions in respect of both the Generation Project and the Transmission Link (which followed two years later); and (b) decision to maintain separate EAs for each project.

While the new CEAA has changed the law on scoping, this decision is important because it rejected an unreasonably delayed attempt to challenge the scoping, which would have caused significant harm to the Generation Project and all the stakeholders that had participated in the regulatory process. Therefore, in future, proponents can likely expect scoping challenges, should they arise, to come earlier in the regulatory process.


1 2013 FC 418. Osler lawyers Maureen Killoran and Thomas Gelbman represented Nalcor Energy in this case.

2 2010 SCC 2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.