Athabasca Chipewyan First Nation v. Canada

Judicial review - Duty to consult - Canadian Environmental Assessment Act, 2012 - Designated project - Migratory birds

The Federal Court of Canada released a decision on December 9, 2014 in Athabasca Chipewyan First Nation v. Canada (Minister of the Environment), dismissing an application for judicial review of the federal government's approval of the Jackpine Mine Expansion Project in the Athabasca region of Alberta.

The project at issue in this application was a proposed expansion of an existing open pit bitumen mine within the traditional territory of the Athabasca Chipewyan First Nation (ACFN). ACFN began consulting with the Crown and the proponent, Shell Canada Limited, in relation to this project in 2007, seeking an outright rejection of the project or at least appropriate accommodations to address its adverse effects on their rights. The Crown invited ACFN to express its concerns to the joint review panel that would oversee the environmental assessment that was required for the project, in addition to the Minister's approval. On December 6, 2013, the Minister decided the project was justified, subject to a list of conditions for the proponent to fulfill. ACFN challenged this decision on the basis that the Crown had breached its duty to consult and accommodate ACFN in deciding whether to approve the project and the conditions to impose on it.

The project triggered both federal and provincial regulatory processes and the two jurisdictions decided to integrate these processes through the creation of an independent joint review panel that would conduct the environmental assessment through hearings, consultations with Indigenous nations, and the examination of data. The panel would then deliver its rationale, conclusions and recommendations for the project in a report to the Minister, who in turn would make the final decision on whether or not to approve the project. The Federal Court noted that ACFN, supported by funding from the Crown, had participated in pre-hearing consultation with the Crown and proponent, and had participated extensively in the hearings themselves, "filing hundreds of pages of submissions, examining and cross-examining lay and expert witnesses, and making final submissions".

In July 2013, the panel released a 405 page report that detailed the evidence presented by the Crown, the proponent and ACFN, among others, concluding that the project offered significant economic benefits and should not be delayed. The report also concluded that the project was likely to cause significant environmental effects (some being irreversible and inadequately mitigated) for the landscape, flora, fauna and Indigenous peoples, and the cumulative effects of this project, among others in the region, would likely result in significant harm to Aboriginal rights and the environment. The panel issued 88 recommendations for the project's implementation. Following the release of this report, the Crown engaged in what it called "Phase IV" consultations with ACFN, with the ACFN presenting both substantive and procedural concerns about the project and the consultation process in relation to its approval. By December 5, 2013, the Governor in Council had decided that the project's likely adverse environmental effects were "justified in the circumstances" and gave no reasons for this decision. The Crown also asserted privilege over records that might shed light on these reasons. The following day the Minister issued his official approval through the decision statement required under the Canadian Environmental Assessment Act, 2012 (CEAA, 2012), which came into effect during the environmental assessment process for this project.

The Court found that the Crown owed ACFN "deep consultation" in relation to this project as it would destroy a large part of ACFN's traditional lands and might also "impinge upon the maintenance of their culture and way of life", and some of the harm to ACFN's interests is "potentially irreversible or has not been mitigated through means of proven efficacy". Yet the Court found that ACFN were afforded an opportunity for consultation and were funded in order to participate in the six-year long environmental assessment process, "filing more than 6000 pages of submissions, marshalling witnesses, and speaking at dozens of meetings". The Crown also sought to identify outstanding issues of concern to ACFN during its Phase IV consultations, and took measures to accommodate them.

In terms of whether the Crown had met its duty to consult ACFN, the Court made several important findings, including that: (i) the Crown was willing to alter the original proposal for the project and did make numerous changes that addressed many of ACFN's concerns, some of which came in the form of conditions binding on the proponent; (ii) the consultation process covered the entire six years of the environmental assessment rather than just the Phase IV consultations and was not "rushed"; (iii) the consultation process continues as the Crown and the proponent must continue to consult ACFN on some of the project's conditions, and the Province must also consult ACFN on matters within its jurisdiction before the project proceeds; (iv) the record did not reveal a lack of transparency from the Crown and the Minister properly asserted privilege under the Canada Evidence Act over the reasons for the decisions challenged in this application; (v) there was no basis on which to draw an adverse inference from the Crown's privilege claim and the Crown did not have to justify its decisions on the project with reasons; and (vi) ACFN was consulted on cumulative adverse effects of the project and many of the conditions proposed by the panel addressed these concerns.

The Court held that the federal Crown accommodated ACFN's concerns by imposing a long list of conditions that were binding on the proponent and the Court expressed the view that the duty to accommodate did not require the Crown to impose all the conditions recommended by the panel. The Court also noted that several of the project's conditions fell within the exclusive jurisdiction of the Province, which would still be subject to Province-ACFN consultations, and the federal Crown offered to cooperate on these matters. The Court went on to explicitly reject seven specific accommodation measures that ACFN argued Canada ought to have imposed, holding that "[t]he duty to accommodate does not guarantee Aboriginal groups everything they wish to obtain" and "Aboriginal groups must be flexible when discussing options for accommodation".