Feb 19, 2020

Application of the Vavilov Framework in Coldwater v. Canada (Attorney General), 2020 FCA 34

Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34 (CanLII)

Introduction

The Federal Court of Appeal in Coldwater v. Canada (Attorney General), 2020 FCA 34 (Coldwater 2020) dismissed the challenges to the Trans Mountain Pipeline Expansion Project (Project) approval. The judgement was issued after the recent overhaul of Canadian administrative law by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 (Vavilov 2019). This summary of the decision is a cursory look at how the Federal Court of Appeal applied the Vavilov framework in reaching its decision to dismiss the challenges to the 2019 approval of the Trans Mountain Pipeline Expansion Project by the Governor in Council.

Background

The Governor in Council originally approved the Project in 2016. The existing pipeline was built in 1953. It is about 1150 Kilometers long and moves petroleum products from Edmonton, Alberta to the marketing terminals located in British Columbia and Washington State. The proposed expansion essentially involves twining of the existing pipeline which would triple its current capacity to move petroleum products to the marketing terminals. The Project carries implications for the environment and for indigenous peoples.

A number of First Nations including Tsleil-Waututh Nation successfully challenged the 2016 approval in the Federal Court of Appeal (Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153), (TWN 2018). The Court found that the National Energy Board (NEB), now the Canada Energy Regulator (CER), unjustifiably excluded marine shipping from the scope of the Project which resulted in unacceptable deficiencies in its report and recommendation. The Governor in Council then relied on this deficient report when assessing the Project’s environmental effects and the overall public interest. Furthermore, Canada failed to adequately discharge its constitutionally mandated duty to consult with indigenous peoples as it “failed to engage, dialogue meaningfully and grapple with the real concerns of the indigenous applicants so as to explore possible accommodation of those concerns” (TWN 2018, para. 6). The Court remitted the matter back to the Governor in Council to address the deficiencies and for redetermination.

The Governor in Council approved the Project again in 2019 after the deficiencies identified in TWN 2018 were addressed. Coldwater Indian Band along with three other Applicants sought judicial review of the second approval of the Project on the basis of the Crown’s alleged continued failure to fulfil the duty to consult. The Court applying the Vavilov framework concluded that there is no basis for interfering with the Governor in Council’s second approval of the Project and dismissed the application with costs to the Respondents.

The Court’s Decision – Application of the Vavilov Framework

A) Selecting the Standard of Review

The Court notes that “the fundamental issue to be decided is whether the Governor in Council could reasonably conclude that the flaws identified in TWN 2018 were adequately remedied by the renewed consultation process” (Coldwater 2020 para. 16) or the “reparative consultation”. The issue entails an assessment that is fact intensive and that calls for deference (para. 16). The Court concluded that, pursuant to Vavilov 2019, the presumptive reasonableness standard applies in this case as this was a statutory judicial review not a statutory appeal, which, post Vavilov, would have attracted the appellate standard of review. Furthermore, the existence or the scope of the duty to consult is not in issue, which would attract the correctness standard of review. The issue of the Governor in Council’s evaluation of the adequacy of the reparative consultation does not fall under any of the exceptions to the presumptive reasonableness standard articulated in Vavilov 2019.

B) Applying the Reasonableness Standard of Review

In conducting reasonableness review, the Court points out that it ought not to form its own view about the adequacy of the consultation “as a basis for upholding or overturning the Governor in Council’s decision” as doing so would amount to “disguised correctness” review (para. 28). Rather, it ought to focus on the reasonableness of the decision made by the Governor in Council. In this case, this entails asking the question “whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review” (para. 29).

Acceptability and defensibility

Post-Vavilov, whether a decision is acceptable and defensible depends on:

a) its internal coherence and rational chain of analysis (Vavilov 2019, para. 85). In other words, cogency of the reasons offered and the analysis undertaken in light of the evidentiary record before the decision maker; and

b) its justification “in relation to the facts and law that constrain the decision maker” (Vavilov 2019, para. 85). In other words, the decision maker’s attention and adherence to any factual and legal contextual factors that constrain and define the space within which the decision maker must act.

With respect to cogency of the reasons and analysis in this case, the Court finds that the reasons offered by the Governor in Council are “more than sufficient in providing justification for the decision” (para. 63) and “do not suffer from errors in reasoning or logical deficiencies” (para. 66).

With respect to the contextual factors affecting reasonableness review, the reparative or remedial nature of the consultation conducted by the NEB was a contextual factor in this case. The court finds that the Governor in Council was entitled to only assess the reparative consultation undertaken by the NEB, but this assessment did not amount to rubber stamping of the original approval of the Project by the Governor in Council in 2016. In making the present decision, the Governor in Council “did not consider itself constrained by its prior decision” (para. 67) as it considered new accommodation measures and initiatives that would “avoid or mitigate the effects on indigenous interests” and implemented amendments to the NEB conditions proposed in its recommendation (paras. 72, 73).

The Court noted that the empowering legislation (National Energy Board Act R.S.C., 1985, c. N-7 (the NEB Act) now repealed and replaced with Canadian Energy Regulator Act S.C. 2019, c. 28, s. 10), the law concerning the duty to consult, the importance of the matter, and the relevance of post-approval consultation are the other contextual factors affecting reasonableness review in this case.

The empowering legislation, the NEB Act, is permissive of a broader space within which the Governor in Council may act. Under section 54 of the NEB Act the Governor in Council is the only body empowered to determine whether the Project should be approved. Under section 55, challenges to an approval can only be brought by way of judicial review as opposed to statutory appeal. This interpretation of the empowering legislation leads the Court to afford deference to the Governor in Council when reviewing its decision.

The law concerning the duty to consult does not impose a standard of perfection on the Crown or its delegates. Demanding such a standard would amount to the Applicants’ veto over the Project in this case (para. 54). Any consultation conducted pursuant to the duty to consult must be “reasonable” and “meaningful”, which essentially means that the consultation is not at odds with the honour of the Crown and serves to advance reconciliation between the Crown and the indigenous peoples with respect to the interests at stake (para. 43). There were about 129 indigenous groups invited to participate in the consultation process and in the end more than 120 either support the Project or do not oppose it (para. 78). This broad consensus is indicative of the fact that the consultation undertaken is consistent with the objectives of reconciliation and the honour of the Crown (para. 78).

With respect to the importance of the matter, the constitutional underpinning of the duty to consult affects the “extent and quality” of the reasons (para. 62). The Court finds that the reasons provided by the Governor in Council were “more than sufficient” in this regard.

At the time of the decision to approve the Project, the Governor in Council was entitled to take into account the likelihood of post-approval consultation in respect of the Project as a factual matter since consultation is an ongoing process consistent with the honour of the Crown (para. 60,61).

The Governor in Council’s reasons and explanations were cogent in light of the evidentiary record and reflect the Governor in Council’s adherence to and appreciation of the above identified contextual factors affecting reasonableness review. Therefore, the decision of the Governor in Council approving the Project was reasonable.

The Court’s Response to the Applicants’ Submissions

It is worth mentioning that the Court did not receive any submissions from the Applicants “with a view to establishing the unreasonableness of the decision” (para. 82). The Applicants, however, chose to focus on the merits of the decision and made extensive submissions in that regard (paras. 80, 81). The Court in response to the Applicant’s submissions concluded that “even if we were reviewing the Governor in Council’s decision on the basis of a more stringent standard, i.e. correctness, we would still not be persuaded that interference with the Governor in Council’s decision is warranted” (para. 85).

The Applicants have 60 days from the date of the decision to seek leave of the Supreme Court to appeal the decision.