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Pull Together to Stop Enbridge Northern Gateway

ENBRIDGE

Gitxaala Nation v. Canada

Year: 2016

Court: Federal Court of Appeal

Citation: 2016 FCA 187

Location: BC

TAGS: Aboriginal Title; Duty to Consult; Mineral/Mining/Natural Resources; RAVEN

Projects are not likely to proceed if governments fail to meaningfully engage with rights and title holders.

Summary:

In June 2014, Cabinet approved the Northern Gateway Pipeline project. This project consisted of two 1,178 km pipelines from Alberta to Kitimat, a marine terminal, and oil tanker routes. Twenty-six Aboriginal equity partners supported the project, representing approximately 60% of the Aboriginal communities along the project route. However, the Gitxaala Nation, the Haisla Nation, the Gitga’at First Nation, the Kitasoo/Xai’Xais Band Council, the Heiltsuk Tribal Council, the Nadleh Whut’en and Nak’azdli Whut’en, and the Council of Haida Nation raised legal challenges to the approval. The Nations were joined by four NGOs and UNIFOR, and their legal challenges were consolidated and heard together by the Federal Court of Appeal (FCA). The FCA found that engagement with Indigenous groups was arbitrarily short and insufficient to provide for meaningful consultation. Canada did not engage with each of the Nations on an individual basis, and therefore failed to address their specific concerns. Accordingly, the FCA concluded that Canada had not fulfilled its constitutional duty to consult with and accommodate the Nations and failed to maintain the honour of the Crown. 

Why this Case Matters:

This case confirms the position that First Nations have been advancing all along: Aboriginal rights and title must be recognized and respected. Substantive, meaningful, and ongoing consultation with each affected First Nation is necessary during all phases of project approval. Projects will not proceed if the Crown fails to engage meaningfully with the rights and title holders. Additionally, the FCA indicated that when projects trigger “deep consultation,” Canada’s representatives in the consultation process must be empowered with the necessary information and decision-making authority.

This case stands in contrast with the West Moberly/Prophet River decisions respecting the Site C project.

Federal Court of Appeal Judgment:

https://www.canlii.org/en/ca/fca/doc/2016/2016fca187/2016fca187.html?autocompleteStr=2016%20FCA%20187&autocompletePos=1

Go Deeper:

http://www.mandellpinder.com/gitxaala-nation-v-canada-2016-fca-187-case-summary/

https://www.millerthomson.com/en/publications/communiques-and-updates/aboriginal-law-update/july-14-2016/case-comment-gitxaala-nation-v-canada-2016/

https://www.mltaikins.com/aboriginal/federal-court-appeal-overturns-northern-gateway-approval-gitxaala-nation-v-canada-2016-fca-187/

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