Maureen Killoran, QC, Tommy Gelbman, Aditya M. Badami
Dec 17, 2014
On December 9, 2014, the Federal Court of Canada (Court) released its decision in Athabasca Chipewyan First Nation v. Minister of the Environment, Attorney General of Canada, and Shell Canada Limited 2014 FC 1185.
In this case, the Court evaluated the adequacy of Canada’s consultation with, and accommodation of, the Athabasca Chipewyan First Nation (ACFN) prior to issuing federal approvals under the Canadian Environmental Assessment Act 2012 (CEAA 2012) for the expansion of Shell Canada Limited’s (Shell) Jackpine oil sands mine (Project). In a fact-based analysis, the Court concluded that Canada had fulfilled its duty to consult ACFN, and the accommodation offered to ACFN was reasonable and adequate.
This decision – the first of its kind under the CEAA 2012 – affirmed the constitutionality of Canada’s Aboriginal consultation process in the context of a major natural resource development project requiring both federal and provincial authorization. It also affirmed that accommodation offered by one level of government must respect the constitutional division of powers.
In January 2007, Shell proposed to expand its existing Jackpine Mine, engaging both federal and provincial environmental assessments (EA) under the Canadian Environmental Assessment Act 1992 (since repealed by CEAA 2012) and Alberta’s Environmental Protection and Enhancement Act, RSA 2000, c E-12.
Canada and the Government of Alberta (Alberta) struck a Joint Review Panel (JRP) to conduct a single EA. ACFN participated extensively in the EA. During this time, Shell also engaged in comprehensive direct consultations with ACFN.
The end result of the six-year EA was a JRP Report that, among other things, issued 88 non-binding recommendations to Canada and Alberta in respect of the Project and regional land use management.
Following the release of the JRP Report, Canada engaged in a five-month consultation process with ACFN (among other Aboriginal groups) that included correspondence, written submissions, direct meetings and an opportunity for ACFN to comment on draft approval conditions.
Following this process, on December 5, 2013, the Governor in Council decided that the significant adverse environmental effects of the Project were “justified in the circumstances” under section 52 of CEAA 2012. The next day, the Minister of the Environment issued a Decision Statement under section 54 of CEAA 2012 that addressed some of ACFN’s concerns through the imposition of binding conditions on Shell. Alberta also engaged in a consultation process with ACFN, which had not concluded as of the time of Canada’s decisions under CEAA 2012.
The ACFN sought judicial review of Canada’s decisions claiming that both the Crown consultation (following the JRP Report) and the resulting accommodations were inadequate.
Applying well-established principles of Aboriginal law, the Court assessed the adequacy of Canada’s consultation and accommodation in light of ACFN’s specific grievances.
The Court rejected ACFN’s allegations that the consultation process was rushed and lacked transparency. To the contrary, it found that the time period was sufficient and that the Crown’s conduct was demonstrative of a fair and responsive process. Ultimately, the Court concluded that it could not see “… what more could be done to ensure meaningful consultation.” In its analysis, the Court considered the consultation that (i) preceded the decision at issue; (ii) took place during the period specifically impugned by ACFN; and (iii) would be required in future by Canada, Alberta and Shell.
The Court concluded that the accommodation offered to ACFN was reasonable. The accommodations included imposing binding conditions on Shell, and committing to certain actions, including direct cooperation with Alberta. The Court held, among other things, that (i) Canada’s accommodation cannot encroach on matters of provincial jurisdiction; and (ii) the Crown is not required to accommodate vague requests, specificity is required. After reviewing the extensive facts on the record, the Court concluded that “Canada’s accommodations, adequate in themselves, bear witness to the attentive, responsive consultation that Canada has afforded the ACFN throughout the process.”
By Maureen Killoran Q.C., Thomas D. Gelbman, Aditya M. Badami