Runner up of the 2019 Atrium law student essay contest

  • June 06, 2019

Reworking the Duty to Consult for Major Projects: A Case Study of the Potential Effects of the Tsleil-Waututh v Canada Decision

George Collister, Peter A. Allard School of Law, University of British Columbia

I – Introduction

The Trans Mountain pipeline expansion project has been significantly delayed in the wake of the ruling in Tseil-Waututh v Canada, 2018 FCA 153 [Tseil-Waututh] due to the Crown’s failure to meaningfully engage in consultation with First Nation’s groups as required under the duty to consult. While attempting to fulfill its obligations, the Governor in Council [GIC] delegated the consultation process to government representatives who, in the words of Justice Dawson, acted “essentially as note-takers” (Tseil-Waututh at 562). After finding that the duty to consult was not fulfilled, the Court quashed Cabinet’s approval of the expansion project. The Court also suggested that the Crown appoint a representative, with the confidence of Cabinet, who would be able to discuss in principle the required accommodation measures.

The Court in Tseil-Waututh was clear that changes to the consultation process would be necessary, however, it did not explain the exact procedures that could be implemented to adequately fulfill the duty to consult. We know it is very unlikely that Ministers will engage directly with First Nations given their busy schedules and the restrictions placed on them by the principle of Cabinet confidence. The Crown has employed former Justice of the Supreme Court of Canada, Frank Iacobucci to help create and oversee the new consultation process. It is unclear what process he will recommend. Since the Tseil-Waututh ruling, the Governor in Council has directed the National Energy Board to start a reconsideration process. This process will attempt to produce a report which will remedy several issues such as the impact of marine shipping on local wildlife. After this National Energy Board [NEB] reconsideration process the government of Canada will engage in a new Phase III consultation process where they will attempt to fulfill their duty to consult as required by the honour of the Crown.

This paper will analyze the potential impact of the Court’s recommendation for a new Cabinet representative who can engage in meaningful two-way dialogue with First Nations groups. To achieve this goal, this paper will first look at the proposed expansion and the procedures used by the NEB and GIC to approve this expansion. Also, the original Phase III consultation process will be analyzed as will the Court’s decision for why this consultation fell well short of the mark required by Canadian jurisprudence. Finally, potential issues with this new representative will be identified and discussed. Problems such as the restrictions that Cabinet immunity legislation places on Ministers who attempt to dialogue directly with First Nations groups. Also, procedural fairness problems with this type of representative will be addressed. Ultimately this paper will argue that the implementation of such a representative would not be easy but is overdue. Canada requires increased certainty when it comes to natural resource projects, and more importantly, First Nations require better protection of Aboriginal Rights in the pursuit of meaningful reconciliation. While difficult to implement, a representative with the confidence of Cabinet is a realistic method by which to improve the consultation process and achieve these necessary goals.

II – Trans Mountain Expansion Project

A – Background

The Trans Mountain Pipeline was first built in 1953 and currently delivers 300,000 barrels of crude and refined oil per day (Ontario, Natural Resources Canada, Trans Mountain Expansion Project (Ottawa: Natural Resources Canada, 2017) <> accessed 13 November 2018 [NRCAN Report]). On December 16th, 2013, Trans Mountain submitted an application to the National Energy Board [NEB] for the Trans Mountain Expansion project [The Project], this included twinning the existing 1147 km of pipeline system which would increase the pipeline’s capacity from 300,000 barrels per day to 890,000 barrels per day (Ontario, National Energy Board, Project Background & the Hearing Process (Ottawa: National Energy Board, 2018) <> accessed 13 November 2018 [NEB Project Background]). The Project is bound by subsection 30(1) of the National Energy Board Act, RSC, c. N-7 which says that no company may operate an interprovincial or international pipeline in Canada unless the NEB has issued a certificate of public convenience and necessity [CPCN].

To grant a CPCN the NEB must be directed to do so by the Governor in Council [GIC], also referred to as Cabinet. This means that the GIC is the ultimate decision-making body in this process, and to make its decision, the GIC is required, in part, to consult with the affect First Nations groups. The duty to consult is grounded in the honour of the Crown and the protection provided for “existing aboriginal and treaty rights” in subsection 35(1) of the Constitution Act, 1982. Through this process, government officials consulted with 117 potentially affected Indigenous groups (NRCAN Report). On August 12th, 2013 the NEB wrote to the identified Indigenous groups to advise that Trans Mountain had filed for an expansion of their pipeline (Tsleil-Waututh at 73). To carry out its duty to consult the Crown would rely on the NEB’s report process followed by its own direct consultation. The goal of the direct consultation was to fill in the gaps left by the NEB’s process and this direct consultation would be referred to as Phase III.

On May 19th, 2016 the NEB issued a report recommending that the GIC approve the Project. This recommendation was based on the NEB’s findings that the Project is in Canada’s public interest, and that if certain environmental protection procedures are put in place the Project is not likely to cause significant adverse environmental effects.

B – Governor in Council’s Decision

Following this report, the GIC engaged in its Phase III consultation process and used the Major Projects Management Office [MPMO] of Natural Resources Canada to act as their representatives. These representatives engaged with First Nations groups, took notes, and passed along information to the GIC. The work of the representatives from the MPMO culminated in the “Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project”. In this report were summaries of the individual consultation efforts carried out with each First Nations group (Ontario, Natural Resources Canada, Crown Consultations and Accommodation Report (Ottawa: Natural Resources Canada, 2016) [Crown Consultation Report]). The purpose of this report was to document the consultation what had taken place on behalf of the Government of Canada.

This document was then given to the GIC who ruled, in the November 29th, 2016 OIC, that they were “satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated” (Ottawa, Governor in Council, Order in Council OC-001-064 (Ottawa: Canadian Gazzette, 2016)). This OIC had the effect of directing the NEB to issue a CPCN, approving the construction and operation of the Project (NEB Project Background). Following this decision, a number of First Nations groups sought judicial review of the GIC’s decision claiming, in part, that the Crown had not fulfilled its duty to consult. On August 30th, 2018, Justice Dawson of the Federal Court of Appeal quashed the Order in Council, citing deficiencies in the NEB’s report and a failure on behalf of the Crown to meaningfully engage with First Nations groups as is required by the duty to consult (Tseil-Waututh at 768).

C – New Events After the Judicial Review

Since this ruling, the NEB has started a reconsideration process to address many of the deficiencies which caused the Order in Council to be quashed. The Government has directed the NEB to complete the reconsideration process and issue its resulting report no later than February 22nd, 2019 (Ontario, National Energy Board, Reconsideration (Ottawa: National Energy Board, 2018) <> accessed 13 November 2018 [NEB Reconsideration]. This reconsideration report by the NEB will directly address the impact of marine shipping on the coastal environment. After this report is complete, the Government of Canada will carry out a second attempt at the Phase III direct consultation with affected First Nations groups. It is clear from the Court’s direction that this consultation process will have to change to allow two-way meaningful dialogue.

The Court suggested the use of a representative with the confidence of Cabinet, however, this is something easier said than done. In an October 3rd, 2018 news release, Natural Resources Canada explained that “after carefully reviewing the Federal Court of Appeal’s judgement the Government has decided to move forward by engaging in a specific and focused dialogue with Indigenous groups” (Ontario, Natural Resources Canada, Government Announces Part II of Path Forward on the Trans Mountain Expansion Project (Ottawa, Natural Resources Canada, 2018) [Path Forward]. This language of “specific and focused” is taken directly from paragraph 772 of the decision where the Court says “the concerns of the Indigenous applicants, communicated to Canada, are specific and focussed. This means that the dialogue Canada must engage in can also be specific and focused” (Tseil-Waututh).

Although the October 3rd news release decided to explicitly explain that the government intends to follow this advice of the court, the news release did not mention whether they will be following the Court’s advice to select a representative with the confidence of Cabinet. This may imply that the government is not planning to follow the suggestion of the Court. However, it is more likely that given the complexity of the issues surrounding such a representative, the government was not willing to commit to any changes in procedure until further analysis of potential problems is complete. As of the time of writing the government has not released any details regarding how the new Phase III consultation process will be structured.

III – Tseil-Waututh Nation v Canada Decision

A – Judicial Review of the Consultation Process

As previously mentioned, after the GIC issued the Order in Council directing the NEB to issue the CPCN, many First Nations groups filled judicial reviews of this administrative decision. The multiple applications for judicial review were consolidated into one case which took the name of the largest applicant, the Tseil-Waututh Nation. Many issues were raised in this 776 paragraph long written decision by Justice Dawson, but the most important issue for this paper is whether the GIC erred by concluding that the Indigenous applicants were adequately consulted and, if necessary, accommodated.

The Court determined that the consultation process was unilaterally imposed by the Crown despite some First Nations addressing concerns that they “had not been involved in the design of the consultation process” (Tseil-Waututh at 111). The consultation process was primarily carried out by the Major Projects Management Office of Natural Resources Canada (ibid at 116) who were tasked with meeting with First Nations groups, hearing their concerns, summarizing these concerns, and providing a report to Cabinet. The Court held that the Crowns “consultation process was unacceptably flawed and fell short of the standard prescribed by the jurisprudence of the Supreme Court” (ibis at 557).

The major flaw was that the Ministers who made the decision were required to do more than receive and understand the concerns of the First Nations. They were required to engage in a meaningful two-way dialogue. The representatives from the Major Project Management Office were restricted in their ability to engage in this dialogue. These representatives were limited to “listening and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers” (ibid at 558). An example of a typical exchange between First Nations and the representatives was laid out verbatim in the decision. The Tsleil-Wauth representative commented that he “did not want consultations and a report of concerns to [the Governor in Council]: that has occurred and does not work” (ibid at 581). The federal representative responded saying “it was sufficient to convey information to the [Governor in Council] depending on how it’s done” (ibid).

The Court disagreed with the federal representative and held that meaningful dialogue is a prerequisite for reasonable consultation, and meaningful dialogue cannot occur when information is merely summarized and passed forward to decision makers. Meaningful dialogue required someone representing Canada empowered to do more than take notes - “someone able to respond meaningfully to the applicants' concerns” (ibid at 599).

B – Recommendation of a Representative

The Court was clear that the Crown failed its duty to consult with First Nations groups during its execution of the direct consultation which occurred in Phase III. This was not a new position for the Court to take. In 2016 the Federal Court of Appeal ruled in Gitxaala Nation v Canada, 2016 FCA 187 at 265 [Gitxaala] that consultation fell well short of the mark and the Crown did not engage in a two-way exchange of dialogue. This decisions in Gitxaala would mean that the Northern Gateway Project would not proceed. This case was frequently cited in Tsleil-Waututh, and the Court seemed to feel that the message in Gitxaala was not received by the Crown. The Court, perhaps in an effort to help guide the Crown’s new consultation process, said that the process was missing “someone representing Canada who could engage interactively. Someone with the confidence of Cabinet who could 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” (Tseil-Waututh at 759).

This practical advice, however, raises more questions than answers. This guidance from the Court will require an entire reworking of the Crown consultation process and will carry with it entirely new problems. This representative will have to be able to understand the concerns of the First Nations people and the constraints that Cabinet is working under. Furthermore, this representative will have to be vested with the necessary authority from the Governor in Council to respond to First Nation’s concerns in a substantive manner with the possibility of accommodation. This is made difficult given the opaque manner in which Cabinet operates as a consequence of Cabinet immunity. Furthermore, if this representative becomes a staple of consultation in new projects, this kind of direct two-way dialogue could raise procedural fairness concerns for proponents, who do not know the case to meet before them. These issues will be discussed in greater depth later in the paper.

IV – The Duty to Consult Framework

A – Overview of Principles

Before, analysis of the potential problems of this representative and how he or she may operate, it is useful to analyze the legal principles of the duty to consult. The federal Crown’s fiduciary relationship with First Nations can sometimes result in enforceable obligations to consult before exercising its discretionary control over First Nations’ independent legal interests (Guerin v R, (1984) 2 SCR 335 [Guerin]). The duty to consult is grounded in the honour of the Crown and the protections provided by subsection 35(1) of the Constitution Act, 1982. As explained in Haida Nation v British Columbia (Minister of Forests), (2004) 3 SCR 511 [Haida] at 32, the Crown’s duty of “honourable dealing toward Aboriginal peoples… arises in turn from the Crown’s assertion of sovereignty over Aboriginal people and de facto control of land and resources that were formerly in control of that people.”

The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. (Haida at 35).  The duty is on the Indigenous claimant to show “a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights” (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 42 [Rio Tinto]). Consultation aims to avoid or minimize the damage that a specific project may have on asserted or proven rights. The trigger for consultation (“might adversely affect”) is low, but consultation is flexible because of the variable content of the duty once triggered. The obligations that accompany a consultation process operate on a spectrum and will vary depending on the strength of the aboriginal right and the risk of non-compensable damage Haida at 43. In the case of the Project, the Crown was operating at the deep end of the spectrum, this means that the Aboriginal groups may be entitled to make submissions for consideration, participate in the decision-making process, and provide written reasons to decision-makers, however, this list is not exhaustive (Haida).

What is stressed in Haida is that the process requires a balancing of interests and a commitment from all parties to a meaningful process of consultation (at 62). Consultation, therefore, is not simply to allow First Nations to vent their frustrations about a proposed project. The Crown must be prepared to accommodate the affected First Nation group and enter consultation with an open mind. One final point. The duty to consult does not operate in conflict with the public interest. Often the discussion of whether to approve a major project is framed as the interests of the First Nations group on one side, and the economic interests of the settler society on the other. The Court in Clyde River (Hamlet) v Petroleum Geo-Services Inc (2017) 1 SCR 1069 [Clyde River] at 40 explains that “a project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest.” With this understanding of the legal principles which ground the duty to consult, it is possible to analyze how a representative may fulfill this duty.

B – Frank Iacobucci’s Possible Design

Creating a new consultation system with a representative who may be able to take this kind of approach will be difficult and complex. It is unclear exactly how Cabinet could empower their representatives to facilitate the kind of meaningful two-way dialogue that the Court has said is required. In an October 3rd news release the government explained that “there is no relationship more important to the Government of Canada than the one with Indigenous peoples.” (Path Forward). This statement shows that the Crown is alive to the fact that the Court in Tseil-Waututh criticized the lack of meaningful engagement with First Nation’s groups. The news release goes on to explain that the Honourable Frank Iacobucci has been appointed as a Federal Representative to oversee the consultation process (ibid). Iacobucci’s role will “design the process and will then oversee it to ensure that Indigenous consultations are meaningful and comply with the judgement of the Federal Court of Appeal” (ibid). This news release does not explain whether or not the recommendation of the Court for a representative with the confidence of Cabinet will be taken. It is likely that at the time of writing the process simply hasn’t been developed yet. It is a complex issue, and the implementation of such a representative is easier said than done. It is still worthwhile, however, to analyze how such a representative may be implemented.

Justice Iacobucci has written at length on the Crown’s duty to consult. It is useful to analyze his previous writings to understand how this new consultation framework may be developed. Iacobucci wrote a report, published on his law firm’s website, which outlined the role of free, prior, and informed consent as guiding principles towards a new relationship with Indigenous people’s in Canada (Ontario, Tory’s LLP, Free, Prior and Informed Consent in Canada (Toronto: Tory’s LLP, 2016) <> accessed 27 November 2018 [FPI Consent]). While the paper is primarily an analysis of the principles of the United Nations Declaration on the Rights of Indigenous Peoples, it is useful as it sets forward proposals toward a new relationship to facilitate reconciliation.

Iacobucci states that “in designing an approach… it may be beneficial for project proponents and Indigenous peoples to approach each other with a relationship of a partnership in mind” (ibid at 81). The report goes on to define this partnership model as an interaction where parties come together to address each other’s unique interests and aim to form an outcome to their mutual benefit. It would be a mischaracterization to say that this report is recommending the use of a representative to achieve meaningful two-way dialogue, however, this report does understand the need for collaboration, good-faith, and ongoing interaction between parties to achieve the duty to consult. This bolsters the argument that the advice of the Court will be taken seriously and a representative with the confidence of Cabinet will take shape in some form. This report does not specifically address any role a representative may play in the consultation process, but it does show that Iacobucci is cognisant of the fact that an important goal of consultation is to achieve reconciliation. To achieve this reconciliation “government should play a useful role in determining the appropriate form of consultation in the context of helping parties align their incentives so that all significant interests can be met” (ibid at 115). While this language is somewhat vague, it shows that Iacobucci seems favour building a structure which allows the Crown help all parties come together and interact in a manner far beyond simply taking notes. However, while consultation through the use of a representative may be desired, it may be made difficult due to the legal implications of Cabinet confidence.

V – Cabinet Confidence Implications

A – Origins and Legislation

Cabinet confidence, also referred to as Cabinet immunity, finds its origins in English common law. Cabinet confidence originated as a means for good governance and protected the private views of Ministers during collective decision making (Yan Campagnolo, “The History, Law and Practice of Cabinet Immunity in Canada” (2017) 47:2 Revue Generale de Droit 238 [Cabinet Immunity] at 241). The common law principle of cabinet immunity has been codified in Canada under two statutes. The first is section 39 the Canadian Evidence Act, RSC 1985, c C-5 [Evidence Act], and the second is section 69 of the Access to Information Act, RSC 1985, c A-1 [ATIA]. The scope of documents protected by each of these statutes is identical, the difference is the situations in which they apply. Section 39 of the Evidence Act applies when a litigant is seeking access to government information to use in a judicial or quasi-judicial forum. Section 69 of the ATIA applies when any member of the general public is seeking access to government-held records for any other reason.

Canada’s statutory immunity for a class of information known as “confidences of the Queen’s Privy council for Canada” is nearly absolute and goes far beyond the scope originally granted un the common law (Cabinet Immunity at 245). Under this immunity, courts cannot even inspect the document to determine if they warrant the protection, let alone order their production (ibid). In the words of section 39 “if a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court… by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, the disclosure of the information shall be refused without examination or hearing of the information by the court (Evidence Act).

The justification for this protection is that it is essential for good government. This legislation allows those tasked with making government decisions to be free to openly and candidly discuss all aspects of the problems they deal with. These decision makers are permitted to express their views without fear that what they say will later be subject to public scrutiny. If Ministers did not have this protection there is fear that they might censor their ideas and would be unable to engage in difficulty policy-making decisions with the same candor and openness. It was put forward in Babcock v Canada (AG), 2002 SCC 57 [Babcock] at paragraph 18 that “the process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.” Also, It is important to note that once a document has already been disclosed, section 39 and 69 no longer apply (Babcock at 26).

While section 39 and 69 of the respective acts permits a Clerk or Minister to certify information as confidential, it does not directly restrain voluntary disclosure of confidential information. However, if a Clerk or Minister choose to release some information and not others then the immunity claim can be challenged on the grounds that the Crown is operating in bad faith, either trying to thwart public inquiry or gain a tactical advantage in litigation (Cabinet Immunity at 303). If it can be shown from the evidence that the exercise of Cabinet confidence was used in such a manner, then the immunity may be set aside as an unauthorized exercise of executive power (Babcock at 25). This would mean that the documents would lose their immunity and would be disclosed to the public.

Cabinet confidence is an important protection for Ministers that allows them to engage in candid debates about contentious policy decisions without the concern that their statements will be made public and hurt their future careers in politics. Given the principle’s importance, legislators have codified and strengthened the common law principle of Cabinet immunity and made the immunity for selected documents nearly absolute. There are, however, narrow methods by which to remove this protection. The first is if a claimant can show that the documents have already been disclosed and the second is if it can be shown that the Crown is acting in bad faith or for a tactical advantage in litigation. These two exceptions may have a meaningful impact on how a representative may operate and how their two-way dialogue may be limited.

B – Implications on Major Project Approval Process

As previously mentioned, members of Cabinet are the decision makers of whether to grant a CPCN to a major project such as the Trans Mountain pipeline. This decision is made by funneling information from technical experts, economists, first nations groups, members of the general public, and more into documents which are presented to Cabinet. Ministers do not often engage in debates with people outside Cabinet as to whether to approve a project. This is a desirable position of Ministers to be in when making difficult policy decisions where they know that not all stakeholders can possibly be made happy. The use of a representative that would act as more than a note taker has the potential to open Cabinet up to more criticism than they currently face.

If a representative acts with the confidence of Cabinet and is prepared to discuss accommodation measures, even just in principle, then the opaque screen of Cabinet’s decision making is lowered. The GIC seems to currently be at an impasse where on the one hand, the courts are demanding that two-way meaningful dialogue occurs, and on the other, the GIC wishes to maintain the secrecy of difficult policy-making decisions. If the GIC implements the use of such a representative, it may open them up to a sort of indirect cross-examination as First Nations groups are able to directly ask questions with the expectation of an answer which indirectly represents the views of Cabinet. If First Nations groups are able to access information or documents through this representative which conveys the opinions of Cabinet, then are these documents now disclosed, and may available to the general public.

It is a difficult line to walk, whereas Ministers become more accountable for the reasons for their decision making, they may become more guarded in their arguments. Furthermore, it is likely to assume that there is no single opinion which represents the GIC. Cabinet is made up of many ministers with many different views. How are these diverse opinions going to be distilled down to one representative? Moreover, in issues as technical as the Trans Mountain expansion project, it is likely impossible that a representative can be briefed to know all the possible opinions of Cabinet for all potential issues that may arise during a consultation discussion. This may mean that the representative will have to repeatedly return to Cabinet for guidance, as new issues arise. This has the possibility of greatly increasing the time it takes to consult, and the cost for all parties involved.

Finally, the act of a representative speaking on behalf of Cabinet could raise arguments that Cabinet is volunteering to disclose immunity protected documents in a way that may benefit them in litigation. Currently, the practice of Cabinet is largely to disclose no document that is protected by immunity thereby avoiding any claims that it is acting in bad faith. This representative, however, may require the release of some documents to First Nations groups in order to facilitate the meaningful two-way discussions that the courts demand. The release of some documents may give credence to a claim from either a proponent or a First Nations group, that Cabinet is acting in bad faith and therefore related documents should lose immunity.

This is speculative, however, it is not unrealistic. The case Babcock deals with a trade dispute of lawyers working for the Department of Justice who are seeking access to documents that had been certified as protected under section 39(1) of the Evidence Act but had previously been disclosed. The court held in Babcock that “the documents certified but disclosed are no longer protected and may be used in the litigation” (at 63). In a decision as contentious as the pipeline expansion, it is not unrealistic for Ministers to expect legal action from every possible angle, and the possibility, no matter how remote, of Cabinet immunity being broken could impact the nature of debate within Cabinet. The implementation of a representative is still possible, but it will have to be done with caution as to prevent the stifling of Ministerial debates.

VI – Procedural Fairness Considerations

A – Knowing the Case to Meet

Another major issue with the implementation of such a representative is the effect it may have on the procedural fairness of the entire administrative decision of whether to approve the proposal. When deciding whether or not to issue the CPNC the GIC is operating as an administrative decision-maker (Tseil-Waututh at 204) and is bound by the common law principles of procedural fairness. The most relevant common law principle to the appointment of a representative with the confidence of cabinet is the audi alteram partem rule, or “knowing the case to be met” (Guy Regimbald, Canadian Administrative Law, 1st ed (Markham: LexisNexis, 2008) at 254 [Administrative Law]).

This rule sets out the fundamental requirement that in order for a process to be procedurally fair, a person must know the case being made against them (ibid). This means that such a person must be provided with sufficient information to provide them with a reasonable opportunity to answer the case before the decision maker renders its decision. Tied into the right to know the case to be met, is the right to notice. Notice provides the opportunity to prepare the case adequately (Supermarches Jean Labrecque Inc. v Flamand, [1987] 2 SCR 219 at 233). The scope of the requirement to give notice will be shaped by the circumstances of a particular case. The importance of the decision to the individual is important when determining the level of notice required. Also, “notice requirements will be diminished where a decision is highly discretionary and based on policy considerations, rather than on facts” (Administrative Law at 257). This is important, since a decision by the GIC of whether to approve a major project is a polycentric policy decision that carries reduced notice requirements. Like other breaches of procedural fairness in administrative law, a failure to provide sufficient notice may result in the decision being void (ibid).

B – Implications of a Cabinet Representative

The implication of this principle on the consultation process in the context of major project approval could be significant. If a representative with the confidence of cabinet meets with First Nations groups in private, it may be argued by a proponent that their right to know the case to meet have been breached. The Court in Tseil-Waututh recommended that the representative be able to discuss required accommodation measures, possible flaws in the Board’s process, findings, and recommendations for how possible flaws could be remedied (at 759). These are far reaching powers that cover a broad scope of important aspects of a major project approval process. No doubt, the Court was interested in a representative being established that would be able to meaningfully engage with important issues with First Nations groups. The result of this is that important parts of the project approval process are being discussed without the presence of the proponent.

It is important to note that for the Trans Mountain pipeline expansion, this point may be moot. The pipeline was nationalized in August 2018 in when the federal government purchased the pipeline from Kinder Morgan for $4.5 billion (Ontario, Department of Finance, Backgrounder: Details of Agreement for the Completion of the Trans Mountain Expansion Project (Ottawa: Department of Finance, 2018) [Details of Agreement]. This means that the proponent of the project is the Canadian government. An analysis of how procedural fairness requirements operate when the decision maker is also the proponent is interesting, but outside the scope of this paper. What is important, however, is that it is not “the intention of the Government of Canada to be a long-term owner of this project” (ibid) and therefore, a private party may be the proponent by the time the new Phase III consultation occurs. Nevertheless, even if the pipeline is not sold in time for the new consultation, this type of representative may become a staple of future major project consultation processes, and therefore, the procedural fairness concerns are worthy of analysis.

If, in the future, a representative is established that discussed the previously mentioned aspects of the project without notifying the proponent it may result in a judicial review. If the GIC issues an OIC that denies the issuing of a certificate of public convenience and necessity, a proponent may be able to judicially review this order and claim that their procedural fairness right to notice has been breached. Of course, this problem may be avoided by simply providing the proponent with notice of all issues discussed and any accommodation measures that have been proposed. This would likely result in greatly increased costs to both the proponent and the GIC. The proponent would have to analyze and respond to the discussions between a representative and the many First Nations groups that were consulted, leading to increased expense and delay. The GIC, similarly, would have to hear and weigh submissions from First Nations groups and the proponent. While this would increase the complexity, cost, and time it will take to carry out consultation, it may be unavoidable. The old process of having representative note-takers compile a single report for the GIC’s review is clearly insufficient to meet the duty to consult and a longer, more complex process may simply have to become the norm.

C – Taseko Mines v Canada

The reality of the situation, however, may not be as grave as the previous situation sets out. A recent decision by the Federal Court of Appeal held that a proponent was owed no duty of procedural fairness when the GIC is making a decision of whether or not to approve a project Taseko Mines Limited V Canada (Environment), 2017 FC 2017 at 117 [Taseko]. In Taseko, the GIC determined that the significant adverse environmental effects of the proposed Gold-Copper Mine could not be justified and rejected Taseko’s proposed mine. Taseko brought a judicial review of the Minister’s decision, claiming that Cabinet had engaged with consultation with the Tsilhqot’in Nation and that procedural fairness required that it be made aware of the First Nation’s submissions. The Federal Court disagreed holding that Taseko was not entitled to review the submissions made during consultation saying “Taseko had no right to the materials it claims. These are a confidence of the Queen’s Privy Council pursuant to sections 39(2)(a) and 39(2)(c) of the Canadian Evidence Act” (Taseko at 120). This decision is currently being appealed, however, for now, there is little ground for a proponent to argue a procedural fairness violation when the GIC is making a decision. This means that if a representative with the confidence of Cabinet was appointed to engage in meaningful two-way dialogue with First Nations groups, it is likely that he or she would be able to operate within the current structure of the law without procedural fairness concerns.

VII – Conclusion

Canada’s consultation process for major project approval is clearly in need of restructuring. Federal courts have denied the previous two pipeline proposals due to very similar short-comings in the consultation process. These decisions have led to the cancellation of the Northern Gateway pipeline and a significant delay to the Trans Mountain expansion. Canada is a nation that is undeniably reliant on natural resource extraction for its economic prosperity, and cannot risk losing commercial investment due to uncertain consultation processes. At the same time, Canada is a nation with an unavoidable history of colonization and marginalization of First Nations peoples. Appropriate consultation is necessary if the laudable goals of reconciliation are to be realized. The importance of these two goals to Canadian society requires a serious look at the proposal of the Court in Tseil-Waututh.

This representative could, in theory, fulfill the consultation requirements by openly discussing potential flaws in the NEB’s report and addressing potential areas for accommodation. This representative would likely be able to operate without jeopardizing Cabinet confidence. As discussed, Courts have consistently upheld the principles of Cabinet immunity and Taseko affirms that consultation discussions are protected by section 39 of the Canada Evidence Act. Furthermore, this representative could likely engage with First Nations Groups without a proponent overturning an OIC on procedural fairness grounds. The GIC is given wide discretion when making its decisions and the current jurisprudence holds that proponents are owed, at most, a minimal duty of fairness.

As of the time of writing, it is unclear if the Crown will implement a representative as discussed in this paper. The appointment of the Honourable Frank Iacobucci is a promising development and shows that at the very least Canada is committed to seriously addressing the short-comings of the current consultation process. Iacobucci has extensive knowledge on the duty to consult and has written in support of building a partnership model of consultation where the goal of meaningful dialogue is achieved. There is substantial uncertainty as to how such a representative may be implemented. The ruling in Taseko could be overturned at appeal leading to increased procedural fairness requirements for proponents. Also, such a representative could lead to significantly more costly consultation processes which would take far longer to complete. Nevertheless, a restructuring of Canada’s consultation process is overdue. It is inappropriate for the GIC to rely on representative note-takers to fulfill their duty to consult. Canada requires increased certainty when it comes to natural resource development to allow continued economic growth. In addition, and more importantly, First Nations require more meaningful consultation to achieve the necessary goals of reconciliation and protection of Aboriginal Rights. While it would not be easy to implement, a representative with the confidence of Cabinet is a realistic method in which to achieve both these important goals.