Tsleil-Waututh Nation v. Canada (Attorney General): Clarifying the (F)Laws in Canada’s Pipeline Approval Process

Abstract

On 30 August 2018, the Federal Court of Appeal released its decision in Tsleil-Waututh Nation v. Canada (Attorney General). This was the primary legal challenge to Kinder Morgan’s certificate of public convenience and necessity for its Trans Mountain Expansion Project. The Federal Court of Appeal quashed the CPCN on two grounds. First, the Court held that the National Energy Board’s decision to exclude the increased marine traffic associated with the project from the environmental assessment (EA) conducted pursuant to the Canadian Environmental Assessment Act, 2012 was unreasonable. Second, the Court ruled that Canada failed to fulfill its consultation and accommodation duties with respect to Indigenous peoples. This article considers both of these grounds. Part II sets out the relevant project details and regulatory regime. Part III sets out and discusses the Court of Appeal’s approach to (a) the issue of marine traffic, (b) the reviewability of EAs generally (i.e. the ability to challenge such reports in Court), and (c) the duty to consult and accommodate. In our view, the Court’s approach to marine traffic and the duty to consult appear to be on solid doctrinal footing. More problematic is the Court’s approach to the reviewability of EAs generally. In Part IV, we comment on the decision’s reception and distortion by various groups to make claims that the decision simply does not substantiate.

Keywords: Aboriginal Law, Indigenous Law, Environmental Law, Energy Law, Pipelines, Environmental Assessment

JEL Classification: K23, K32