On December 9, 2014, the Federal Court of Canada (Court)
released its decision in Athabasca Chipewyan First Nation v.
Minister of the Environment, Attorney General of Canada, and Shell
Canada Limited 2014 FC 1185.
In this case, the Court evaluated the adequacy of Canada's
consultation with, and accommodation of, the Athabasca Chipewyan
First Nation (ACFN) prior to issuing federal approvals under the
Canadian Environmental Assessment Act 2012 (CEAA 2012) for
the expansion of Shell Canada Limited's (Shell) Jackpine oil
sands mine (Project). In a fact-based analysis, the Court concluded
that Canada had fulfilled its duty to consult ACFN, and the
accommodation offered to ACFN was reasonable and adequate.
This decision – the first of its kind under the CEAA 2012
– affirmed the constitutionality of Canada's Aboriginal
consultation process in the context of a major natural resource
development project requiring both federal and provincial
authorization. It also affirmed that accommodation offered by one
level of government must respect the constitutional division of
In January 2007, Shell proposed to expand its existing Jackpine
Mine, engaging both federal and provincial environmental
assessments (EA) under the Canadian Environmental Assessment
Act 1992 (since repealed by CEAA 2012) and Alberta's
Environmental Protection and Enhancement Act, RSA 2000, c
Canada and the Government of Alberta (Alberta) struck a Joint
Review Panel (JRP) to conduct a single EA. ACFN participated
extensively in the EA. During this time, Shell also engaged in
comprehensive direct consultations with ACFN.
The end result of the six-year EA was a JRP Report that, among
other things, issued 88 non-binding recommendations to Canada and
Alberta in respect of the Project and regional land use
Following the release of the JRP Report, Canada engaged in a
five-month consultation process with ACFN (among other Aboriginal
groups) that included correspondence, written submissions, direct
meetings and an opportunity for ACFN to comment on draft approval
Following this process, on December 5, 2013, the Governor in
Council decided that the significant adverse environmental effects
of the Project were "justified in the circumstances"
under section 52 of CEAA 2012. The next day, the Minister of the
Environment issued a Decision Statement under section 54 of CEAA
2012 that addressed some of ACFN's concerns through the
imposition of binding conditions on Shell. Alberta also engaged in
a consultation process with ACFN, which had not concluded as of the
time of Canada's decisions under CEAA 2012.
The ACFN sought judicial review of Canada's decisions
claiming that both the Crown consultation (following the
JRP Report) and the resulting accommodations were
Applying well-established principles of Aboriginal law, the
Court assessed the adequacy of Canada's consultation and
accommodation in light of ACFN's specific grievances.
The Court rejected ACFN's allegations that the consultation
process was rushed and lacked transparency. To the contrary, it
found that the time period was sufficient and that the Crown's
conduct was demonstrative of a fair and responsive process.
Ultimately, the Court concluded that it could not see "...
what more could be done to ensure meaningful consultation." In
its analysis, the Court considered the consultation that (i)
preceded the decision at issue; (ii) took place during the period
specifically impugned by ACFN; and (iii) would be required in
future by Canada, Alberta and Shell.
The Court concluded that the accommodation offered to ACFN was
reasonable. The accommodations included imposing binding conditions
on Shell, and committing to certain actions, including direct
cooperation with Alberta. The Court held, among other things, that
(i) Canada's accommodation cannot encroach on matters of
provincial jurisdiction; and (ii) the Crown is not required to
accommodate vague requests, specificity is required. After
reviewing the extensive facts on the record, the Court concluded
that "Canada's accommodations, adequate in themselves,
bear witness to the attentive, responsive consultation that Canada
has afforded the ACFN throughout the process."
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