Event23 June 2016Action

Federal Court of Appeal quashes the Northern Gateway approval for inadequate consultation with First Nations

In Gitxaala Nation v. Canada (2016 FCA 187), a 2-1 majority quashed the 2014 Order in Council and the National Energy Board's certificates because Canada had not adequately consulted affected First Nations, and sent the decision back to cabinet.

Date

23 June 2016

Kind

Court ruling

Where

Canada

Evidence

Action: Something was done: a law switched on, a tariff imposed, money committed. How evidence is weighed

Who

Haisla Nation (subject); Nadleh Whut'en (subject); Nak'azdli Whut'en (subject)

Sources

• Federal Court of Appeal, “Gitxaala Nation v. Canada, 2016 FCA 187” (external site), 23 June 2016. source record

Projects

• Northern Gateway pipelines (Enbridge)

Claims that rest on this event

• SupportsMechanism

  Consultation gives First Nations no veto. Courts send approvals back for more consultation but rarely end projects: Trans Mountain's approval was quashed in 2018, granted again in 2019, and the pipeline was built. A nation that objects usually ends with an agreement or with an approval over its objection, so a nation that opposes and later signs reveals nothing about its motive. Provinces and towns holding the same lever end the same way.

  The Federal Court of Appeal quashed Northern Gateway's approval in 2016 and sent it back to cabinet; the government, not the court, ended the project months later.

• ContextMechanism

  In the record so far, resource projects facing organized First Nations, Métis or Inuit opposition reached construction about as often as those without it (approved: 4 of 7 vs 1 of 2; under review: 2 of 4 vs 2 of 8); tiny, selected samples.

  Northern Gateway, an opposed approved project, had its approval quashed on First Nations' challenges: one of the three opposed approved projects that did not reach construction.

• SupportsOutcome

  Canada's build-out was not obvious in advance. The US Energy Secretary said new Canadian pipelines were hard to build and did not expect the oil trade to change; conservative US analysts expected only a Conservative government to unleash oil and gas; and after Northern Gateway and Energy East fell through, 'Canada won't build' was a reasonable default. Some analysts foresaw Canada selling elsewhere, but in the US public record we found no one who predicted it would build fast and keep supplying the US. It is a surprising result that needs explaining.

  Northern Gateway's approval was quashed by the Federal Court of Appeal.