Canada: Case Comment: Gitxaala Nation v. Canada, 2016 FCA 187

The Northern Gateway Pipeline Project, which has been in the works since 2005, received a major setback on June 23 with the federal court of appeal's judgment in Gitxaala Nation v. Canada. The court quashed Canada's approval of the Project because Canada failed in its duty to adequately consult with affected First Nations. While the court praised Canada's framework for consultation, it determined that its execution of that framework "fell well short of the mark".[1] In so doing, the court looked at the substance of Canada's consultation efforts and provided guidance on what constitutes responsive, meaningful, consultation.

This decision is significant in light of the numerous proposed interprovincial and transcontinental oil and gas pipeline projects, including Kinder Morgan's Trans Mountain Expansion and TransCanada's Energy East. The court has signalled to the Crown that meaningful consultation is ongoing; during all phases of project approval, the Crown must remain engaged. After gathering information regarding a project's effects on Aboriginal and Treaty rights, the Crown must undertake First Nation-specific consultation marked by the badges of honourable dialogue that is open, transparent, responsive and accountable.


The Northern Gateway Project consists of two 1,178 kilometer pipelines and associated facilities. One pipeline proposes to transport oil from Bruderheim, Alberta, to Kitimat, British Columbia, and subsequently onto tankers for delivery to export markets. The other pipeline would carry condensate from the these tankers for distribution to Alberta markets.

The Project is supported by 26 Aboriginal equity partners, representing almost 60% of the identified Aboriginal communities along the pipelines' right-of-way. Notwithstanding the level of support secured by Northern Gateway, eight First Nations (Gitxaala Nation, Haisla Nation, Gitga'at First Nation, Kitasoo Xai'Xais, Heiltsuk Tribal Council, Nadleh Whut'en and Nak'azdli Whut'en, and Haida Nation) challenged the Governor in Council's approval of the Project by bringing nine applications for judicial review seeking to overturn the decision.

The court acknowledged at the outset that the "challenges associated with the approval process for the Project were immense."[2] A framework for consultation with Aboriginal groups was established, with consultation to occur in five phases throughout the regulatory process. In 2006, the Minister of the Environment referred the Project to a Joint Review Panel to prepare a report for the Governor in Council and to conduct an environmental assessment. The Joint Review Panel's report, which was issued in December 2013, found that the Project was in the public interest and recommended that the National Energy Board be directed to issue certificates allowing the project to move forward subject to 209 conditions. The Joint Review Panel also presented the Governor in Council with recommendations based on an environmental assessment.

The court determined that the parties had ample opportunity to participate in the joint review process and generally availed themselves of it.[3] However, the First Nations took issue with Phase IV of the consultation framework: consultation subsequent to the Joint Review Panel's report but prior to the Governor in Council's decision. During Phase IV, the Crown was required to consult affected First Nations regarding the Joint Review Panel's report as well as any other project-specific concerns that were not addressed in the joint review.

The First Nations asserted that Canada failed in its consultation duty during Phase IV. The court was required to determine: (1) whether under the legislative scheme the Governor in Council must consider the adequacy of Crown consultation before issuing its Order in Council and (2) whether, on the facts of the case, Canada fulfilled its duty to consult during Phase IV.

The court conducted a lengthy review of administrative law principles in the duty to consult context. Ultimately, the court determined that Canada failed to fulfill its duty to consult, quashing the Order in Council and the National Energy Board's Certificates and remitting the matter to the Governor in Council for redetermination. Phase IV must be redone, and the Governor in Council cannot reorder the certificates until Canada has adequately consulted with the affected First Nations.

Issue 1: Can the Governor in Council consider issues related to the Adequacy of Consultation?

Before determining whether the Crown failed in its consultation duties, the court undertook an extensive review of the legislation affecting the Governor in Council's decision and the administrative law principles to be applied in the context of the duty to consult. The court determined that the Governor in Council was required to determine whether the Crown met its consultation obligations when considering a project under the National Energy Board Act. Further, the Governor in Council has the power to accommodate the concerns of First Nations by imposing conditions on any certificate it directs the National Energy Board to issue. This conclusion was bolstered by the relationship between the Crown and the Governor in Council, which is frequently the starting point for the Crown's exercise of its authority.

Issue 2: Did the Crown fail to Act in Accordance with the Honour of the Crown?

Turning to the central issue in this case—whether Phase IV was executed properly—the court noted that perfection in consultation is not required.[4] Rather, there must be reasonable efforts to inform and consult.[5] The court identified several errors in Canada's consultation efforts during Phase IV.

The First Nations asserted that Canada failed to adequately consult them during Phase IV in four key ways:

  1. The Joint Review Panel's Report left too many issues affecting First Nations to be decided after the Project was approved;
  2. The consultation process was too generic: Canada and the Joint Review Panel looked at First Nations as a whole and failed to address adequately the specific concerns of particular First Nations;
  3. After the Joint Review Panel's Report was finalized, Canada failed to adequately consult with First Nations about their concerns and failed to give adequate reasons; and
  4. Canada did not assess or discuss title or governance rights and the impact on those rights.[6]

The court highlighted the importance of Phase IV in the consultation process. First, the Joint Review Panel's report raised specific issues that required feedback from the First Nations. Second, the Joint Review Panel's Report did not cover every subject on which consultation was required. Third, Phase IV was Canada's first and last opportunity to engage in direct substantive consultation with the First Nations before the Governor in Council made its decision.

Despite this critical timing, Canada engaged in a consultation process in Phase IV that was rushed and fatally lacking in meaningful dialogue.

The first error identified by the court concerned the timing of Phase IV. Canada allowed 45 days for the Phase IV consultation process so that the Governor in Council could issue its decision within the timeframe established by the National Energy Board Act. Canada did not respond to First Nations' concerns that this timeline was arbitrarily short and insufficient. The court noted that the deadline could have been extended, but that Canada never asked the Governor in Council to do so.

The court was also troubled by the fact that, in at least three instances, information was given to the Governor in Council that inaccurately portrayed the concerns of the First Nations. Canada was not willing to discuss these inaccuracies or to correct the information.

Another concern to the court was the lack of meaningful dialogue between the First Nations and Canada. Canada sent representatives to consultation meetings who did not have decision-making authority and were present simply to gather information. In so doing, Canada failed to "engage, dialogue and grapple with the concerns expressed to it in good faith" and that "missing was a real and sustained effort to pursue meaningful two-way dialogue."[7] This left a number of very legitimate concerns unconsidered and undiscussed.[8]

The court rejected Canada's assertion that two letters sent to the affected First Nations could serve as a substitute for meaningful dialogue, stating that the letters, which contained errors, could "best be described as summarizing at a high level of generality the nature of some of the concerns expressed."[9] The First Nations were entitled to "much more in the nature of information, consideration and explanation"[10] regarding the concerns that they expressed to Canada.

Further, Canada failed to share necessary information that it had regarding the affected First Nations' strength of claims to rights and title. The court stressed that this information is vital to meaningful consultation as it defines the subjects that must be discussed between the Crown and First Nations as well as the level of dialogue that must occur. Without this information, a First Nation cannot assist the Crown in determining the potential impact of a Project so that those impacts can be properly mitigated and accommodated. By repeatedly failing to share information with the affected First Nations, many effects of the Project on the First Nations' rights and title were "left undisclosed, undiscussed and unconsidered."[11]

Finally, the Order in Council failed to give sufficient reasons regarding the adequacy of consultation, a subject that the Governor in Council was required to consider and assess before approving the Project. The Order in Council contained only a single recital on the duty to consult which stated that consultation had been undertaken by the Crown. Missing was an opinion on whether consultation had been adequate and an explanation demonstrating that the First Nations' concerns were considered and evaluated by the Governor in Council in reaching its determination.

Given these substantial errors in the Phase IV process, the court concluded that Canada's consultation efforts fell well below the standard of what would be reasonable under the circumstances.[12]

What are the Implications of this Decision?

The immediate effect of the court's decision is that the Northern Gateway Project is now on hold. However, this decision has significant, broader implications for First Nations, for the Crown and for Proponents seeking to construct and operate major oil and gas transportation infrastructure with the view of accessing external markets.

First, while the decision provides a useful reiteration of the salient principles of administrative and constitutional law in the duty to consult context, it does not change the existing law. Rather, it provides guidance to the Crown regarding the content and scope of its substantive consultation obligations where deep consultation is required. Because this case was decided in the context of a Project requiring "deep consultation", it may be of limited assistance for projects that occur on the lower end of the consultation spectrum.

However, for projects requiring deep consultation, the Crown is now on notice that consultation must occur within a meaningful dialogue where all parties are well-informed through good-faith information sharing. Further, Canada must send the proper people because "[i]n order to comply with the law, Canada's officials needed to be empowered to dialogue on all subjects of genuine interest to affected First Nations, to exchange information freely and candidly, to provide explanations, and to complete their task to the level of reasonable fulfillment."[13] The adequacy of the Crown's efforts in this regard must be determined before project approval.

Moving forward, it will be important to keep an eye on the steps that Canada and its representatives take in order to rectify its past failings.

Third Party Engagement

As we know, the Crown may delegate only procedural elements of consultation to third parties seeking to develop resource and energy projects within a First Nations' territory. Nevertheless, this decision ought to emphasize the need and value of direct industry engagement with Indigenous Nations. Given the increased uncertainty related to relying upon Canada to carry out its obligations, Proponents would be well advised to seek a framework for meaningful engagement and to also collaborate with First Nations in project-specific requests of government. Indeed, this is further supported by the Truth and Reconciliation Commission of Canada calling for corporations to incorporate reconciliation frameworks into corporate policies and guidelines. It is perilous for a company to engage First Nations by using a minimalist approach given that the law in this area is fast evolving.

Nation-to-Nation Engagement

The court has indicated a willingness to hold Canada accountable by examining what consultation activities, in substance, actually look like. This is important as Canada will have to hold up the mirror to itself and examine its own engagement activities critically prior to making high-level decisions. Not only will it have to do this, it will have to share the results with First Nations. Canada will have a chance to self-reflect and evaluate how its Interim Measures Approach is working. Canada's Interim Measures Approach currently relates to the Northern Gateway Project, Kinder Morgan's Trans Mountain Expansion Project, TransCanada's Energy East Project and potentially other major oil and gas infrastructure projects. We are confident that moving forward in a more accountable manner will be seen as an opportunity to ensure that the current government can fulfill its many commitments made to Indigenous Nations to date.


[1] Gitxaala Nation v. Canada, 2016 FCA 187 at para. 8.

[2] Gitxaala Nation at para. 19.

[3] Gitxaala Nation at para. 48.

[4] Gitxaala Nation at para. 183.

[5] Gitxaala Nation at para. 185.

[6] Gitxaala Nation at para. 229.

[7] Gitxaala Nation at para. 263, 279.

[8] Gitxaala Nation at para. 265.

[9] Gitxaala Nation at para. 281.

[10] Gitxaala Nation at para. 287.

[11] Gitxaala Nation at para. 325.

[12] The court, however, rejected a number of the First Nations' assertions, including: that the Governor in Council prejudged the issue; that the consultation process was over-delegated; that inadequate funding was provided for First Nation participation; that the consultation framework was unilaterally imposed on the First Nations; and that Canada was required to share with the First Nations its legal assessment of the strength of their rights and title claims.

[13] Gitxaala Nation at para. 327.

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
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.