Media Release and Legal Backgrounder: First Nations “extremely disappointed” by Supreme Court of Canada’s refusal to hear TMX appeal, but vow to keep fighting
July 2, 2020 – Vancouver (Musqueam, Squamish and Tsleil-Waututh Territory)
– The Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band have been denied leave to appeal by the Supreme Court of Canada. These three First Nations have fought and challenged the Trans Mountain Expansion (TMX) Project twice at the Federal Court of Appeal.
“We are extremely disappointed by today’s decision by the Supreme Court of Canada,” said Chief Leah George-Wilson. “This case is about more than a risky pipeline and tanker project; it is a major setback for reconciliation. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.”
Although today’s decision marks the end of the road for this legal challenge, First Nations have vowed to explore all legal options to protect their rights, land, water and climate.
“To say we are disappointed in this decision is an understatement,” said Syeta’ xtn (Chris Lewis), Squamish Nation Spokesperson and Councillor. “Indigenous peoples have a constitutional right to meaningful consultation and accommodation, and the courts must scrutinize that process. The Federal Court of Appeal’s decision to let the federal government be the judge and jury of its own consultation efforts was flawed in so many ways, and we are shocked to learn that the Supreme Court of Canada has failed to recognize that. Though this particular challenge is now over, we will continue to exercise all available options to hold the government to a higher standard, both for this project and for future projects in our territories.”
“We’re not deterred and are exploring all legal options. What I can tell you today is that this not the end of the story,” said Chief George-Wilson.
The Tsleil-Waututh Nation and Squamish Nation first began legal action in 2014 against the Trans Mountain pipeline and tanker project. Since the Nations’ 2018 win at the Federal Court of Appeal, they have continued to work to protect their lands and waters. Today’s decision does not change that mandate.
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Legal Backgrounder for TMX Supreme Court of Canada Application for Leave
On April 6, 2020 three First Nations (Squamish Nation, Tsleil-Waututh Nation and Coldwater Band) filed applications with the Supreme Court of Canada (SCC) seeking leave to appeal the February 4, 2020 Federal Court of Appeal (FCA) decision Coldwater First Nation v. Canada 2020 FCA 34 (“Coldwater decision”). Today, the Supreme Court of Canada released their leave decision [granting or denying leave]
On August 30, 2018, the FCA quashed the original approval in the Tsleil-Waututh v. Canada decision. Rather than appeal that decision, the federal government sent the project back to the National Energy Board to reconsider marine shipping impacts. The federal government also conducted a further round of Indigenous consultation prior to re-approving the project on June 18, 2019.
On July 9th, 2019 eight First Nations, three environmental organizations, and a group of youth filed applications for leave to appeal the June 18, 2019 re-approval at the FCA.
On September 4th, 2019, the FCA granted leave to six First Nations, but limited the grounds of appeal to the adequacy of Indigenous consultation that happened between August 30th, 2018 and June 18, 2019. All other grounds were excluded from the appeal, and two First Nations, as well as the environmental groups and youth were denied leave to appeal.
On November 5, 2019, two First Nations (Squamish and Tsleil-Waututh) as well as the environmental groups and youth sought leave to appeal the FCA’s September 4th leave decision to the Supreme Court of Canada. On March 5, 2020 the SCC denied leave, declining to hear these appeals.
The FCA held oral hearings for the consultation cases from December 16-18, 2019. On December 19, 2019, the SCC released the Vavilov decision, an administrative law case that clarified the standard of review that Canadian courts should use when reviewing decisions. The FCA invited parties to make additional submissions on the impact of Vavilov to the Coldwater case.
On February 4, 2020 the FCA released the Coldwater decision, upholding the re- approval of TMX.
On April 6th, Tsleil-Waututh Nation, Squamish Nation and Coldwater Indian Band applied to the SCC to hear their appeal of Coldwater.
On July 2nd, the Supreme Court denied to hear the appeals.
Grounds for Appeal
In the Coldwater decision, the FCA relied heavily on a recent case called Vavilov to inform its analysis of the adequacy of consultation. In doing so, the FCA may have changed the nature of consultation cases moving forward.
Specifically, in Coldwater the court departed from past practice of reviewing the evidentiary record to determine the adequacy of consultation, following Vavilov: The existence and depth of the duty to consult are not in issue. All parties agree that the duty was one of deep consultation. The fundamental issue to be decided is whether taking this into account, the Governor in Council could reasonably conclude that the flaws identified in TWN 2018 were adequately remedied by the renewed consultation process. This is a narrow issue primarily based on the Governor in Council’s evaluation of the adequacy of the consultation that took place during the second consultation process, an assessment that is fact- intensive and that calls for deference.
Instead of looking at what happened during consultation to determine whether it was meaningful and upheld the honour of the Crown (the test for meaningful consultation), the FCA limited their review to the reasonableness of Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. The court held that Cabinet’s decision, including the outcome reached and justification for it, was reasonable, relying on Cabinet’s own decision document and accompanying explanatory note.
One major issue that the parties are asking the SCC to answer is whether the FCA correctly applied Vavilov in Coldwater.
The Vavilov trilogy of cases arose from decisions by the Registrar of Citizenship, and the Canadian Radio-telecommunication and Television Commission. It follows an administrative law principle that confers deference to the technical specialization and expertise of administrative decision makers.
The applicants in Coldwater argue that federal Cabinet does not have the same kind of technical specialization or expertise about the adequacy of consultation that deserves the same degree of deference. Further, because the Canadian government also owns the TMX project, Cabinet’s assessment of the adequacy of their own consultation should not invite the level of deference conferred to decision makers in Vavilov.
The applicants also argue that consultation has constitutional elements, as it flows from section 35 of the constitution, and therefore Vavilov should not apply.
Put another way, the impact of Coldwater is to weaken the constitutional duty to consult to a procedural duty to provide reasons. The applicants are asking the Supreme Court of Canada to weigh in on this important question, among others.
Additional issues raised include the adequacy of accommodation measures that rely on future studies of baseline conditions, and the failure to consider and mitigate the impacts on drinking water.
The SCC’s denial of leave to appeal marks the end of the road for this particular legal challenge. First Nations have vowed to explore all legal options to protect their rights, land, water and climate.
 Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65