In a previous blog post (The Crown’s Duty to Consult First Nations) I criticized the August 30, 2018 Federal Court of Appeal (FCA) decision quashing the Cabinet’s approval of the Trans Mountain Pipeline expansion. Since then there have been new hearings by the National Energy Board and new consultations with First Nations, resulting in a new Cabinet approval on June 18, 2019. That new approval was challenged again in the FCA.
On February 4, 2020 the FCA issued its decision (Coldwater Indian Band). The FCA upheld the Cabinet’s decision as being reasonable, including the Cabinet’s finding that the consultations with the opposed First Nations had been proper.
Two Panels, Two Attitudes
There are some interesting differences between the 2018 FCA decision and this one. The heroes and villains have changed places. In reading this panel’s thorough and detailed legal analysis I was struck by what I read between the lines. The critical tone of this panel in describing the posturing in the submissions of some of the First Nations is a sharp contrast to the critical tone of the 2018 panel in describing the Crown’s consulting staff.