The recent Federal Court decision in Peguis First Nation v Canada1 examines the application of the duty to consult to four different First Nations. In this case, the Court held that while Canada met its duty for three of the First Nations, Canada did not meet the standard of two way meaningful dialogue required to resolve Peguis First Nation's ("Peguis") concerns.
This case involves the Manitoba-Minnesota Pipeline Project (the "Project"),2 an international transmission line operated by Manitoba Hydro. The Project runs from Winnipeg to the Manitoba/Minnesota border, crossing over Treaty 1 territory and approximately 36 km of provincial Crown land. The Project has been built and is currently in operation.
The Project required a provincial license under The Environment Act of Manitoba and federal approval under the now repealed National Energy Board Act, as well as the Canadian Environmental Assessment Act, 2012.
There were three phases of consultation:
- the provincial approval process and provincial Crown-Indigenous consultation
- the National Energy Board ("NEB") hearing, which culminated in the NEB recommending that the Governor in Council ("GIC") issue a Certificate of Public Necessity and Convenience ("Certificate") for the Project. Canada relied on the NEB process to fulfil Canada's duty to consult,3 and
- Canada's supplementary consultation, which was intended to "identify any outstanding concerns regarding Project-related impacts to Aboriginal and Treaty rights that were not communicated to the NEB or not addressed to by the NEB, and to address incremental accommodation measures if appropriate."4
Following Canada's supplementary consultation process, the GIC issued an Order in Council approving the issuance of a Certificate by the NEB to Manitoba Hydro for the Project.
Peguis, Animakee Wa Zhing #37 ("AWZ"), Long Plain First Nation ("Long Plain"), and Roseau River First Nation ("Roseau River," collectively, the "Applicants") applied for judicial review of the GIC's Order in Council. Peguis, Long Plain and Roseau River are signatories to Treaty 1, and AWZ is signatory to Treaty 3. Among other things, all of the Applicants challenged the adequacy of Canada's consultation concerning the Project.
The Court reviewed principles from Haida Nation v British Columbia (Minister of Forests)5 and Coldwater First Nation v Canada6 and explained that Canada had "to show that it considered and addressed the right claimed by Indigenous peoples in a meaningful way."7 The Court also noted that "while there is a checklist of activities required for consultation, the guiding question is whether, in all of the circumstances, consultation maintained the honour of the Crown and promoted reconciliation." 8
The legal issues and the consultation framework in Peguis were very similar to what the Court considered in the Coldwater and Tsleil-Waututh Nation v Canada (Attorney General)9 cases concerning the Trans Mountain Pipeline.10
The Court found that to fulfil its duty to consult the Applicants, Canada would have had to provide the Applicants with an opportunity to make submissions and to formally participate in the decision-making process, and to provide written reasons for its decision. 11
The Court considered whether Canada's consultation with each of the four First Nations was adequate. A review of the Court's findings for each of the four First Nations provides guidance about the duty to consult.
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1. 2021 FC 990 [Peguis].
2. Ibid at para 1.
3. Ibid at para 20.
4. Ibid at para 24.
5. 2004 SCC 73 [Haida].
6. 2020 FCA 34 [Coldwater].
7. Peguis at para 107.
8. Ibid at para 109.
9. 2018 FCA 153.
10. Peguis at para 115.
11. Ibid at para 132.
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