Press Release and Legal Backgrounder: FIRST NATIONS LAUNCH FIGHT OF TMX PROJECT APPROVAL TO SUPREME COURT OF CANADA
Vancouver (Musqueam, Squamish and Tsleil-Waututh Territory) – The Squamish Nation, Tsleil-Waututh Nation, the Ts’elxwéyeqw Tribes and Coldwater Indian Band announce they are seeking leave for appeal to the Supreme Court of Canada. These four First Nations have fought and challenged the Trans Mountain Expansion (TMX) Project through every Federal court. They now intend to seek a challenge at the Supreme Court of Canada.
While some court processes are paused due to the Covid-10 pandemic, deadlines for seeking leave to appeal at the Supreme Court of Canada remain in effect.
The four First Nations initiated their appeals of the Federal Court of Appeal’s February 4, 2020 decision—known as Coldwater et al. vs. Canada—to the Supreme Court of Canada. The First Nations are challenging the adequacy of Indigenous consultation leading up to the second approval of the oil pipeline project.
“The Supreme Court of Canada needs to deal with the Federal Court of Appeal’s decision that essentially lets the government be the judge and jury of its own consultation efforts. We need the opportunity to address the flawed consultation and engagement conducted by the Federal government, given the strength of rights and title of the Squamish People to Burrard Inlet and Vancouver. Indigenous peoples have a constitutional right to meaningful consultation and the courts must scrutinize that process. This flawed decision cannot stand, and we must challenge it, not just for us but for any future project that may be challenged by First Nations,” said Khelsilem, Squamish Nation Spokesperson and Councillor
“The issues are now bigger than just a pipeline and tanker traffic. The Coldwater case is a major setback for reconciliation and consultation in Canada because if it is left unchallenged, it would water down the consultation standard to be no more than a procedural hurdle.” said Tsleil-Waututh Chief Leah George-Wilson, also a lawyer at Miller Titerle.
The four nations have filed applications seeking leave to appeal the decision. If the Supreme Court of Canada decides that the legal issues raised are of national importance, they will grant leave and hear the cases.
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Legal Backgrounder for TMX Supreme Court of Canada Application for leave
On April 6, 2020 four First Nations (Squamish Nation, Tsleil-Waututh Nation, Ts’elxwéyeqw Tribes 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”).
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.
Grounds for Appeal
In the Coldwater decision, the FCA relied heavily on Vavilov to inform its analysis of the adequacy of consultation, and in doing so, 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.
There is no set timeline for the SCC to decide on the leave application. The court took about four months to decide on the leave applications filed in November 2019.
If the applications are successful, the SCC would hear legal arguments on the issues set out above. If those appeals are successful, the SCC could quash the approval or send it back to the FCA for re-determination.
 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65