Canada: Court Clarifies Pipeline Approval Processes: "Widen Scope Of Review And Consult Meaningfully With First Nations"

On August 30th 2018, the Federal Court of Appeal rendered its decision in respect of Kinder Morgan's (perhaps now Canada's) proposed expansion of the Trans Mountain Pipeline by quashing the federal government's approval of the project. Before commenting on potential impacts on the case, it's important to see what the case actually decided and clarified.

The decision was a result of several judicial review applications from many applicants and respondents rolled into one decision. The two main questions before the court were:

  1. Was it possible to conduct a judicial review of the National Energy Board ("NEB") Report? Answer: No, it is not (citing the Gitxaala decision of the Federal Court of Appeal aka the "Gateway Decision"). Therefore, the applications sought by Tsleil-Waututh, Squamish, Sto:lo, Coldwater, Upper Nicola and Secwepemc Indigenous Groups/Bands and Nations along with the cities of Vancouver and Burnaby and environmental group applicants and interveners were dismissed on this point. However, in reviewing the Order in Council ("OIC") of the federal Cabinet, the court could look at NEB conduct and consider whether the OIC was valid.
  2. Can the OIC approving the Project be judicially reviewed and challenged, and if so, should the OIC be quashed? Answer: Yes and Yes. The court quashed the OIC and sent the matter back for reconsideration after ordering further consultation and accommodation discussions with Indigenous Groups, insisting on the widening of the scope of review for the project to include shipping and therefore include consideration of aquatic species at risk such as killer whales and corresponding impacts on Aboriginal rights.

So what happened? In a nutshell, the court clarified the law and the Environmental Assessment and NEB process, while mandating a wider review and further, more "adequate", First Nations consultations.

First, the court clarified the NEB and environmental assessment process by following the Gateway Decision in stating that the NEB review process is sufficient to help fulfill the role of consultation for Canada in reviewing and assessing the impacts on Aboriginal rights and the duty to consult and accommodate. Second, the NEB's 'approval' and report is not the last word and cannot be reviewed through the courts because its decision and report are precursors to the real decision maker, being Canada by Cabinet decision and an OIC.

These two aspects of the decision clarify the role of the NEB and Cabinet in future project reviews.

The Federal Court of Appeal found that the NEB and Canada got the process and their mandates wrong. The NEB construed the scope of its review too narrowly and Canada failed to adequately consult. While Canada listened well enough, it did not meaningfully interact to discuss, consider and mandate accommodations to address the concerns of First Nations and their impacts on Aboriginal rights.

The court held that the NEB made a critical error in not making the "scope" of review of the project's impacts sufficiently wide to consider project-related tanker traffic and shipping. Both the NEB and Canada erroneously thought that the NEB and Canada had no jurisdiction to consider these aspects of the project and accordingly, they narrowed the scope of their review to exclude serious concerns regarding species at risk legislation. On reconsideration, the NEB will have a great deal of work to do on that front since there was little evidence referenced in the decision as to how the project changes may mitigate the potentially serious impact on the killer whale population, which is a species at risk and one of significance to local First Nations. As a result of this narrow "scope" decision, the report of the NEB was seen as deficient and not a valid report required for an NEB approval certificate for a project.

Furthermore, the court held that Canada did not sufficiently or adequately consult with affected First Nations. More specifically, the process for consultation laid out by Canada was reasonable and adequate but the actions of Canada to fulfill Phase III of its own process fell short. Canada was required to engage in a meaningful two-way dialogue. The court spent some 36 pages in its decision detailing the inadequacy of Canada's dialogue with First Nations, culminating in the following statement:

"The inadequacies of the consultation process flowed from the limited execution of the mandate of the Crown consultation team. Missing was someone from Canada who would engage interactively. Someone with the confidence of Cabinet who would discuss, at least in principle, required accommodation measures, possible flaws in the Board's process, findings and recommendations and how those flaws could be addressed."

The court held that Canada appeared to be under the misunderstanding that its role and jurisdiction was limited to listening only to First Nations concerns but did not reference two-way dialogue or decision-making about actual project changes, or conditions to address or accommodate those concerns. It also appears that it may well have considered the NEB as the ultimate decision maker, with Canada merely echoing the NEB's findings.

The court also clarified the role of the "public interest" in the process. The court determined how the conflict with the "public interest" referenced in an NEB review and the duty to consult is to be resolved: aboriginal rights considerations are a "constitutional imperative" and "supersedes" other concerns of tribunals tasked with assessing the public interest:

"... it is important to understand that the public interest and the duty to consult do not operate in conflict. As a constitutional imperative, the duty to consult gives rise to a special public interest that supersedes other concerns commonly considered by tribunals tasked with assessing the public interest. In the case of the Board, a project that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (Clyde River, paragraph 46)."

The Court quashed the OIC, sending the matter back to the NEB for review and reconsideration, on the expanded scope and in further consultation with Indigenous Groups, mandating that Cabinet could not consider the matter until after Canada had adequately engaged in that meaningful two-way dialogue which included accommodation of aboriginal rights and title concerns.


  1. First Nations consultations must bear practical fruit with substantial decisions for meaningful changes. Talk is not enough. First Nations "consultations" will need to be two-way dialogue and include actual accommodation discussions, if not actions, in order to be consultations, especially where the duty to consult is on the high end of the spectrum. This will spawn a new cast of federal "negotiators" armed with a mandate directly from Cabinet to discuss and seek adequate accommodations and addressing First Nations issues. This will occur outside and after the renewed NEB process in a newly created "Phase III" consultation. This may have further reaching applications to other EA Processes where Cabinet decision makers are required to engage in two-way dialogue after an EA process has recommended approval to the appropriate Minister. In that sense, government to government dialogue, long sought by First Nations, has come of age.
  2. Canada is the final decision maker but must address aboriginal rights, complying with the "constitutional imperative". The balance of power in regulatory decision-making on large-scale energy projects has shifted away from the NEB's previous 'final word' and is now with federal Cabinet. Canada now has legal and procedural steps mandated by the courts for decisions that can be reviewed. This will heighten the politics of these projects, especially where key Cabinet leaders have already expressed project support, giving rise to claims for apprehension of bias. The "constitutional imperative" to Indigenous Peoples is now infused with a "special" public interest, obligating the fulfillment of the duty to consult in order to serve the public interest. This will result in a thorough review of existing environmental assessment and NEB processes throughout all Canadian jurisdictions.
  3. NEB process is sufficiently robust to review and consider the various issues of environmental and Aboriginal rights including the duty of consultation and accommodation. Canada can delegate the procedural aspects of consultation to the NEB. While the NEB is not a final decision maker, it does have sufficiently wide powers of review upon which Canada (through federal Cabinet) can rely in making its considerations and final decisions.
  4. EA processes and consultation will be more heavily scrutinized by government, First Nations, and project proponents. Project proponents will need to take the NEB and EA processes much more seriously, especially as to how they address First Nations concerns. Proponents will no longer be able to rely solely on the approval of the NEB for adequate assessment or on Canada for adequate consultation. This could result in an increase in Aboriginal engagement for major projects, especially where project alterations and/or accommodations are sought as a result of impacts on aboriginal rights. Project proponents will be required to do more out of an abundance of caution.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions