Date: 20160906

Docket: A-386-14

Citation: 2016 FCA 219

CORAM:

GAUTHIER J.A. WEBB J.A. GLEASON J.A.

 

BETWEEN:

TSLEIL-WAUTUTH NATION

Appellant

And

NATIONAL ENERGY BOARD,

TRANS MOUNTAIN PIPELINE ULC, and

ATTORNEY GENERAL OF CANADA

Respondents

Heard at Vancouver, British Columbia, on October 27, 2015 and January 22, 2016.

Last written submissions filed June 17, 2016.

Judgment delivered at Ottawa, Ontario, on September 6, 2016.

REASONS FOR JUDGMENT BY:	GAUTHIER J.A. GLEASON J.A.
CONCURRED IN BY:	WEBB J.A.

 

Date: 20160906

Docket: A-386-14

Citation: 2016 FCA 219

CORAM:

GAUTHIER J.A. WEBB J.A. GLEASON J.A.

 

BETWEEN:

TSLEIL-WAUTUTH NATION

Appellant

And

NATIONAL ENERGY BOARD,

TRANS MOUNTAIN PIPELINE ULC, and

ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR JUDGMENT

GAUTHIER and GLEASON JJ.A.

[1]               The Tsleil-Waututh Nation (TWN) appeals from three interlocutory decisions of the National Energy Board (NEB) made pursuant to subsection 22(1) of the National Energy Board Act, R.S.C., 1985, c. N-7 (NEBA).

I.                   Overview

[2]               These three decisions were made in the context of the NEB’s review of an application filed by Trans Mountain Pipeline ULC (TM) for the construction of a project which, broadly speaking, consists of:

i)               An extension of its existing TM pipeline system, which will include completing a twinning of the existing pipeline in Alberta and British Columbia with about 987 km of new buried pipeline as well as the reactivation of 193 km of existing pipeline;

ii)             New and modified facilities including such installations as several pump stations; and

iii)           Tanks and additional tanker loading facilities at the existing Westridge Marine Terminal (WMT) in British Columbia;

(together, the Project).

[3]               The stated purpose of the Project is to enable Canadian producers to export oil (light and crude oil including diluted bitumen) from the WMT to foreign markets. Among other things, the Project, if completed, will result in increased marine shipping activities, particularly in the Burrard Inlet, raising the number of tanker calls from 5 per month to 34 per month, depending on market conditions.

[4]               The Tsleil-Waututh are also known as the people of the Burrard Inlet. Their traditions and way of life are largely centered on the Inlet. About 500 Tsleil-Waututh live in the TWN primary community (Indian Reserve #3) on the North Shore of Eastern Burrard Inlet, only a few kilometres from the WMT.

[5]               It is not disputed that the Crown owes the TWN a duty to consult in respect of the Project within the meaning of Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. Indeed, it appears on the basis of its Preliminary Depth of Consultation assessment that the Crown concluded that the TWN was entitled to a high level of consultation in respect of the Project (Affidavit of Mark Youden dated January 21, 2016, Exhibit A, page 9).

[6]               The NEBA requires that companies apply for a certificate of public convenience and necessity (CPCN) before constructing or operating an inter-provincial pipeline, such as that involved in the Project. To this end, the NEB must, within the strict and short timeline set out in the NEBA, provide a report to the Minister of Natural Resources (Minister) for consideration by the Governor in Council (GIC). The NEB’s report must include a recommendation as to whether a CPCN should be issued to enable a project to proceed (subsection 52(1) of the NEBA).

[7]               In addition, as the Project involves the construction of more than 40 kilometres of pipeline other than offshore pipelines, it is a “designated project” as defined in section 2 of the Canadian Environmental Assessment Act, 2012 (S.C. 2012, c. 19, s. 52) (CEAA 2012) and section 46 of the Regulations Designating Physical Activities, SOR/2012-147. Pursuant to subsection 52(3) of the NEBA, the NEB was therefore required to conduct an environmental assessment (EA) of the Project pursuant to the CEAA 2012. The NEB’s report submitted to the Minister under the NEBA must therefore also include the conclusions drawn from its assessment under the CEAA 2012 and its recommendations based on the factors set out in sections 5 and 19 of the CEAA 2012 (subsection 52(3) of NEBA; subsections 29(1) and 31(1) of CEAA 2012).

[8]               The decisions under appeal (collectively, the Decisions) are all dated April 2, 2014. While the parties describe them somewhat differently in their respective original memoranda, the Decisions may be described as follows:

i)               A determination that TM’s Project application is sufficiently complete to proceed to an assessment and a public hearing under the NEBA (Completeness Decision) (Appeal Book, Volume 1 at pages 16-18);

ii)             A confirmation that the Project is a “designated project” that ought to be assessed under the CEAA 2012, and setting out the list of factors and scope of factors to be considered for the purpose of the EA (CEAA 2012 Decision) (Appeal Book, Volume 1 at pages 300-303); and

iii)           An order detailing the steps and deadlines for the application assessment process, including the public hearing process (Hearing Order) (Appeal Book, Volume 1 at pages 31-49).

[9]               On April 2, 2014, the NEB also ruled on 2118 applications filed by persons seeking participatory rights and granted intervener status to 400 applicants. This included the TWN (one of 73 Aboriginal Groups granted intervener status), various federal government departments, as well as other governmental authorities such as the City of Burnaby. This last decision is not on appeal before us.

[10]           As can be seen from their mere descriptions, the Decisions were issued very early on in the application review process undertaken by the NEB. TM filed its Project application on December 16, 2013, a little over three months before the Decisions were issued.

[11]           It is not disputed that the TWN has had the opportunity to use the NEB process to seek information from TM and various federal agencies involved. The TWN has also been able to file considerable evidence, including the final report of its own environmental assessment and its own expert reports. It has also had the opportunity to present traditional oral evidence and to make written and oral submissions in respect of all issues identified by the NEB, including the impact of the increased marine shipping that would result from the exportation of greater quantities of oil from the WMT once the Project was completed and Canadian producers used the new facilities.

[12]           There is no evidence before us that the TWN filed any motion, or raised with the NEB, either orally or in writing at any time before April 2, 2014, any of the arguments it raises before us.

[13]           As nobody sought a stay of the NEB proceedings, on May 20, 2016, and as scheduled in its last hearing order, the NEB issued its final 533-page report (the Report). The Report includes the NEB’s recommendation that the GIC approve the Project, subject to 157 conditions listed therein. The NEB found the Project to be in Canada’s public interest despite significant impacts of increased marine shipping resulting from the future exportation of oil from the WMT which could not wholly be mitigated.

[14]           It is public knowledge that a three member panel has started another round of consultation on the Report. That round must be completed before the GIC makes its decision as to whether or not the NEB should issue a CPCN to TM or whether the NEB should be required to reconsider some issues under section 54 of the NEBA. It is expected that the GIC decision will be made sometime towards the end of December 2016.

[15]           It also appears from the public record of this Court that, since May 20, 2016, at least seven applications for judicial review challenging the Report have been filed.

[16]           This Court also very recently issued its decision in Gitxaala Nation v. Canada, 2016 FCA 187 [Northern Gateway], which, for the first time, deals extensively with the new statutory regime applicable to applications for a CPCN like the one filed for the Project. In Northern Gateway (at paragraphs 120 – 123), this Court indicated that the GIC is the only decision-maker tasked with approving an application for a project similar to the one before us.

[17]           For a number of reasons, the hearing of the appeal before us occurred in stages and the matter was not taken under reserve until mid-June 2016. The manner in which this case proceeded was unusual. First, the parties sought and were afforded the opportunity to file additional memoranda when, during the course of the first hearing, the TWN changed its position as to the role of the NEB in respect of the Crown’s duty to consult, an issue at the core of its appeal. According to the TWN, this change in position was necessary because of recent case law of this Court such as Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, 474 N.R. 96 (August 17, 2015) [Clyde River] and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, [2016] 3 F.C.R. 96 (October 20, 2015) the latter of which deals with the impact of the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 [Carrier Sekani]. However, the TWN could not explain why it was not possible for it to give prior notice of this significant change of position before the hearing. Such prior notice could have avoided the delay that resulted from such a change.

[18]           Secondly, by notice of motion filed the day before the second hearing scheduled on January 22, 2016, the Attorney General of Canada (AG) sought a three-month adjournment so it could reconsider its position as part of the newly elected government’s overall review of its position on Aboriginal law matters. The AG’s request was supported by the TWN, even though it was known by the parties that the NEB would issue its Report in May 2016 and that an adjournment would most likely prevent this Court from deciding this matter prior to the issuance of the Report. The motion for adjournment, although poorly timed, was granted by this Court (with costs to be dealt with at a later stage) so as to afford the requested opportunity to foster reconciliation between First Nations and the Crown. To minimize the inconvenience and waste of resources that flowed from the adjournment, the Court, on consent, completed the hearing of all issues on January 22, 2016, with the exception of those related to the AG’s position on the TWN’s duty to consult arguments and any subsequent reply by the TWN on this issue.

[19]           On April 11, 2016, the TWN wrote to the Court to advise that TWN and federal government representatives had met twice and that it was agreed by the parties that the appeal should be decided on the basis of the materials filed and submissions made.

[20]           However, the Report was issued on the heels of this correspondence. Because the Report contained information of likely relevance to some of the issues before us, the parties were given an opportunity to comment on its potential impact. They took up the offer to do so, and filed submissions on the impact of the Report on this appeal, with the last of their submissions being filed on June 17, 2016.

[21]           For the reasons that follow, we are of the view that this appeal should be dismissed. This conclusion is without prejudice to the TWN’s right to raise all the issues it raised before us (with the exception of the allegation that the Decisions were final and that the NEB breached section 18 of CEAA 2012 before April 2, 2014) in subsequent proceedings that it might deem necessary to institute to contest the ultimate decision of the GIC in respect of the Project.

[22]           All the provisions of the NEBA and the CEAA 2012 referred to herein are reproduced in Annex 1 of these Reasons.

II.                Issues

[23]           When drafting reasons, one usually summarizes the relevant facts before enumerating the issues to be decided by the court. However, in this particular case, we find it useful to summarize the issues put to us before turning to an overview of the relevant factual context of the case. Setting things out in this order will help understand why the parties presented as relevant a number of facts that both pre-date and post-date April 2, 2014, i.e., the date of the Decisions under review.

[24]           The TWN raises four issues before us. They can be set out as follows:

i)        Does the NEB, when acting as a responsible authority under the CEAA 2012, have the authority and obligation to discharge the Crown’s duty to consult? We note that this involves the interpretation of the relevant statutory framework to confirm whether the CEAA 2012 delegated any procedural obligations in respect of the Crown’s duty to consult to the NEB. If so, did the Crown, through the NEB, breach its duty to consult prior to the issuance of the Decisions? If not, and in the alternative, is the NEB still required under the NEBA or CEAA 2012 to assess the adequacy of consultation prior to issuing the Decisions, such that it erred in law by failing to determine whether the Crown had breached its duty to consult prior to making the Decisions?

ii)             Did the NEB breach its legal obligation to offer to consult and collaborate with the TWN as a “jurisdiction” within the meaning of section 18 of the CEAA 2012 prior to making the Decisions?

iii)           Did the NEB breach its duty of fairness to the TWN as an intervener by failing to obtain its comments in respect of all the issues raised in the Decisions?

iv)           Did the NEB err in law by failing to include marine shipping activities that will likely result from the export of oil from WMT in the designated project description so as to widen the scope of factors to be examined under the CEAA 2012 (as opposed to under the NEBA)?

[25]           The AG and TM also raised, as preliminary issues, that the Court should refuse to deal with these questions at this stage because the TWN failed to put them directly to the NEB and it would thus be inappropriate for this Court to address them for the first time on appeal. They also submitted that it would be premature to comment on the adequacy of the Crown’s consultation in a vacuum at the inception stage of the NEB process, knowing that the TWN has had the ability to voice all its Project-related concerns to the NEB and to utilize the NEB process to obtain information from the Crown and TM.

[26]           Lastly, the parties do not agree as to whether the issue relating to the inclusion of marine shipping activities as part of the designated project is a question of law (pure or extricable) or a question of mixed fact and law (see, for example, TM’s Memorandum of Fact and Law dated January 22, 2015 at para. 59). This is obviously important, considering the limits of our Court’s jurisdiction pursuant to section 22 of the NEBA, which provides for the review of questions of law or jurisdiction only. On this issue, the TWN argues that this Court is bound to deal with all questions before it since leave to appeal was granted on July 10, 2014 and the matter has thus been decided (res judicata).

[27]           Although the NEB was a party to the proceedings, it made it clear that it would not take any position on any of the issues as it was engaged in the public hearing process when the parties appeared before us. It was agreed that its role would be limited to providing factual information about the process so far as deemed appropriate by the Court.

[28]           Finally, the Court must deal with the costs of the appeal, of two motions (one for the above-discussed adjournment, the other to add materials to the record) and the costs related to the TWN’s change of position during the first hearing.

III.             Chronology of Events as Described by the Parties

[29]           The first issues to be examined are the preliminary ones regarding the appropriateness of this Court’s considering this appeal at this stage based on the record before the Court. For reasons detailed below, we are of the view that the appeal should be dismissed based on our determination of the preliminary issues, without prejudice to the rights of the TWN to again raise these issues (other than the alleged finality of the Decisions and that the NEB breached section 18 of CEAA 2012 before April 2, 2014), if it wishes, at the appropriate time. This conclusion is largely a factual one that requires appreciation of the way in which matters transpired before the NEB as well as the overall context.

[30]           The following chronology helps understand the extent to which each party sought to engage the others, but not all the reasons why they may, by contrast, have refrained from doing so. The chronology also highlights the ambiguities of this case as well as the fact that this Court has not had the benefit of a complete picture of the parties’ discussions and interactions regarding the extent of Aboriginal consultation undertaken to date relating to the Project. This picture remains incomplete despite the parties’ filing of some evidence on facts that occurred both before and after the Decisions were issued. The chronology may nonetheless offer a helpful aide to any eventual decision-maker that might be called upon to determine whether the Crown satisfactorily discharged its duty to consult in this case.

[31]           From the outset, we note that the Court does not have complete details of when TM’s activities relating to the Project started. Although there is some reference to a tolling application in some correspondence, it is unclear how this relates to the matter before us. However, it appears from the Affidavit of Maximilian Nock dated May 21, 2014 that TM initiated attempts to consult with the TWN regarding the Project in the fall of 2011 (Appeal Book, Volume 3, Tab 6). It also appears from the record that the TWN has been represented by experienced legal counsel since the early days of the Project application, as a number of letters exchanged by the parties were copied to the TWN’s counsel throughout the NEB proceedings.

[32]           The portion of the log recording TM’s attempts to communicate and meet with the TWN before us covers the period from the fall of 2011 up until September 30, 2013. During that time, there were at least 102 entries of calls and correspondence between the two parties. Indeed, there were probably more communications as some correspondence between the President of TM and the TWN is not recorded in the log. However, it appears that these numerous attempts by TM did not result in any meeting or in any TWN participation in any study or discussion organised by TM because the TWN refused to do so. This refusal is somewhat surprising considering that, according to the TWN’s own environmental Stewardship Policy, proponents were encouraged to contact the TWN as early as possible in respect of any project that may have an impact on the First Nation. The following exchange of correspondence sheds some light on why this is so.

[33]           As early as October 31, 2011, the TWN declined an offer to meet with the President of TM, indicating that it had decided to oppose the Project. It is worth reproducing a portion of this letter:

Tsleil-Waututh will no longer participate bilaterally with you in any processes that may be styled at some point as “consultation” in respect of this proposed project. We will rely on our network of relationships with governments and regulators and our own efforts to keep ourselves informed and to participate in making the public and the stakeholders aware of the risks associated with the Kinder Morgan and Trans Mountain pipeline extension proposal.

(Reference to Kinder Morgan in any documents will be treated hereinafter as a reference to TM, given that Kinder Morgan is the parent company of TM.)

[34]           Despite this, TM continued its efforts to engage with the TWN throughout the period covered by the log, as well as after, since there is evidence of communication of information from TM to the TWN later on.

[35]           Of note is a letter from TM to the TWN dated March 21, 2012, requesting, among other things, when and how to trigger the TWN Stewardship Policy to begin consultation with the community (Appeal Book, Volume 4, Tab 6S). This is relevant in that this is the same policy that will be referred to later on in the discussion with respect to the TWN’s desire to be recognized as a “jurisdiction” pursuant to section 18 of the CEAA 2012.

[36]           Sometime in August 2012, TM sent a cheque in the amount of $250.00 to initiate the Stewardship Policy application process of the TWN (See TWN letter of December 12, 2012 below).

[37]           In a letter to TM dated December 12, 2012, the TWN returned TM’s $250 fee (Appeal Book, Volume 4, Tab 6T). In the letter returning the cheque, the TWN advised TM that the obligation to consult and to accommodate is the duty of the Crown unless there is an express delegation of procedural or operational obligations. In its view, there was no such delegation and such obligation could not be contracted or implicitly delegated to a third party. The TWN then explained that it viewed the NEB process as problematic, viz:

…The National Energy Board alleges that they cannot maintain quasi-judicial objectivity and engage with First Nations in a bilateral process of consultation. In their July 2008 publication “Consideration of Aboriginal Concerns in National Energy Board Decisions”, they state that they rely upon project proponents to carry out the Crown’s responsibility to share information, identify impacts and propose mitigation. This policy is totally inconsistent with what we understand is the obligation of the Crown and Crown agencies…

[38]           The TWN confirmed that it had appealed to the Minister to establish an appropriate government to government consultation process and that without such a process it would not engage the Stewardship Policy for the proposed Project. Again, it reiterated the message conveyed in its previous letter of October 31, 2011 that it would not participate bilaterally with TM in any processes that may be styled as “consultation” and would “continue to seek a commitment from the Crown to either amend the NEB process or establish an appropriate government to government consultation process with [it] as in parallel process to the NEB to achieve meaningful and substantive consultation with respect to the potential adverse effects associated with the … pipeline expansion proposal” (Appeal Book, Volume 4, Tab 6T).

[39]           The aforementioned appeal to the Minister refers to a letter from the TWN to the Minister dated November 5, 2012 (Appeal Book, Volume 2, Tab 4J). In this letter, the TWN complained about the fact that the NEB had not granted it intervener status in respect of a tolling application related to the Project and filed in February, 2011. After reiterating its view that the Crown could not delegate its responsibility for consultation to a project proponent and referring to the July 2008 publication from the NEB, the TWN noted that it could not be relegated to the status of stakeholder as opposed to a self-governing entity holding constitutionally protected rights and titles. The TWN added that if, as alleged, the NEB “cannot engage First Nations on a government to government basis and maintain its quasi-judicial objectivity, then it is incumbent upon [either the NEB or the Minister] to establish a parallel process that will ensure that direct input from First Nations is considered throughout the NEB decision-making process”.

[40]           In his reply dated January 18, 2013, the Minister indicated that the NEB “is an independent and arms-length quasi-judicial regulator” and that it would thus be inappropriate for him to intervene with respect to its decision not to grant intervener status in relation to the tolling application (Appeal Book, Volume 2, Tab 4K). That said, the Minister strongly encouraged the TWN to participate in any opportunity to discuss the project with TM, which had launched a broad-based engagement process. As for the Crown’s duty to consult, the Minister stated that the Crown would rely, to the extent possible, on the NEB’s review of the TWN’s application in fulfilling any Crown duty to consult Aboriginal groups. Having noted that under the NEBA, the NEB is required to consider any issues and concerns raised by Aboriginal groups, the Minister noted that “the Crown would monitor the adequacy or sufficiency of Aboriginal consultation efforts throughout the [NEB]’s process” and “urge[d] [the TWN] to participate in any eventual facilities review process by providing information and by bringing concerns or unresolved issues to the attention of [TM] and the [NEB]”. Finally, the Minister noted that the NEB cannot engage in one-on-one discussions outside of its process, but that the NEB had taken steps to ensure that evidence of the impact that the proposed Project could have would be in hand, as it expects companies to engage in consultations as early as possible when planning a project.

[41]           There is no evidence that any of this correspondence between the TWN and the Minister was provided to the NEB at any relevant time. At this stage, it is important to note that all correspondence received or sent by the NEB was posted on its website, for the knowledge of all parties concerned.

[42]           On or about May 26-27, 2013, TM submitted a project description to the NEB for the proposed Project. On July 26, 2013, TWN representatives advised TM that the TWN would oppose the Project.

[43]           On July 29, 2013, the NEB released a “List of Issues” that it would consider in the context of the public hearings concerning the anticipated project under the NEBA (Appeal Book, Volume 2, Tab 5A). This list included “the potential environmental and socio-economic effects of marine shipping activities that would result from the proposed Project, including the potential effects of accidents or malfunctions that may occur”. On August 8, 2013, TM transmitted the said list to the TWN (Appeal Book, Volume 2, Tab 6P).

[44]           On August 12, 2013, the NEB wrote to the TWN in order to provide it with a summary of the proposed Project, a map of the proposed pipeline itinerary, information about participant funding, its process and where to find the details of TM’s consultation program, its outcome and proposed mitigation measures. The NEB also offered to respond to any question about its process by phone or at a meeting in the First Nation community. Appended to the NEB letter was a separate letter from Natural Resources Canada (NRCan) providing information about the Crown consultation process. It advised Aboriginal communities concerned that the review process would be managed through the Government Major Project Management Office (MPMO) initiative. Among other things, it encouraged Aboriginal groups to communicate any Project-related concerns to TM and to subsequently convey any unresolved concerns to the NEB, either orally or in writing, in the context of the public hearing process. Again, it was noted that the Crown would rely on the NEB public hearing process, to the extent possible, to fulfill any duty to consult owed to Aboriginal groups for the proposed Project. It ended by advising that any question as to the overall Crown approach to consultation should be referred to the MPMO while questions pertaining to the NEB process should be directed to the staff of the NEB.

[45]           It is apparent from the Report that the MPMO and the NEB staff held several meetings with First Nations who expressed an interest. There is little evidence about these meetings; nor is there any evidence that the TWN ever contacted the MPMO or the NEB staff before April 2, 2014 to ask any question about the consultation process of the Crown or about the NEB process under either the NEBA or CEAA 2012.

[46]           On September 10, 2013, the NEB wrote to TM to provide it with additional filing requirements relating to the potential environmental and socio-economic effects of increased marine shipping, reiterating that although the increased marine shipping to and from the WMT was not part of the proposed Project, the NEB had determined, as indicated in its List of Issues, that the potential environmental and socio-economic effect of those marine shipping activities were relevant to the NEB’s consideration of the application under the NEBA.

[47]           It is worth mentioning that, according to the NEB Filing Manual, all proponents of projects that involve an assessment by the NEB under the NEBA are required to start an in-depth consultation process much earlier than the filing of their application. In their consultation, proponents are required to consult with all federal, provincial, municipal and Aboriginal authorities as well as any other stakeholders and members of the public that may have concerns about the project. It is also to be noted that in its Filing Manual, the NEB states that all proponents must address all the issues set out in section 19 of CEAA 2012, regardless of whether or not the project is a “designated project” under that statute.

[48]           On December 16, 2013, TM filed its application for the Project’s CPCN. Only parts of this application, which covers more than 15,000 pages, have been filed in the record before us. On December 20, 2013, the NEB updated the webpage on the Canadian Environmental Assessment Registry internet site (CEARIS) to indicate that the NEB had been designated as the responsible authority charged with conducting the EA of the designated project. The update also included a description of the Project as well as a section dealing with consultation and cooperation with other jurisdictions. It indicated that pursuant to section 18 of the CEAA 2012, a responsible authority must offer to consult and cooperate with respect to the EA of the designated project with any jurisdiction referred to in paragraphs (c) to (h) of the definition of “jurisdiction” in subsection 2(1) of the CEAA 2012, if that jurisdiction has powers, duties and functions in relation to the assessment of environmental effects of the designated project. More importantly, the NEB noted that should any stakeholder be of the opinion that it is such a jurisdiction and wish to be consulted under section 18, it should contact the NEB as soon as possible – and at the latest by January 31, 2014 – describing how it met the definition and outlining its relevant environmental assessment powers, duties and functions.

[49]           On December 31, 2013 and after acknowledging receipt of the application, the NEB directed TM to solicit applications from stakeholders desiring to participate in the public hearing (Appeal Book, Volume 3, Tab 6D). The NEB directed TM not to solicit such applications before January 15 or after January 29. TM provided the TWN with such a notification on January 15, 2014.

[50]           On January 31, 2014, the TWN wrote to the NEB stating that, in its opinion, it was a “jurisdiction” within the meaning of section 18 of CEAA 2012 and wished to be consulted. It noted, however, that such consultation and cooperation would not replace or supersede the Crown duty to consult directly with the TWN. As a basis for its opinion, the TWN referred to the following three documents which were not attached to its letter:

        i.            The TWN’s 2009 Stewardship Policy, which provides for TWN assessment of proposed projects in a defined consultation area. The Project is said to be located squarely within the consultation area (Appeal Book, Volume 4, Tab 7A);

      ii.            The Framework Agreement on First Nation Land Management with the Government of Canada to which the TWN is a 2005 signatory, which confirms the TWN’s legal power to develop and implement an environmental assessment process (Appeal Book, Volume 2, Tab 4G); and

    iii.            The 2007 TWN Land Code adopted pursuant to the Framework Agreement on First Nation Land Management (Appeal Book, Volume 2, Tab 4H).

The TWN letter did not indicate whether these documents were publicly available.

[51]           On February 12, 2014, the TWN also filed an application to participate, requesting intervener status.

[52]           On March 4, 2014, the NEB wrote to the TWN seeking clarification as to its letter of January 31, 2014, and more particularly, clarification as to whether the TWN sought any consultation or cooperation in addition to the rights it would be granted as intervener (Appeal Book, Volume 2, Tab 4P). The NEB outlined in its letter how an intervener participates in the NEB hearing and how an intervener would be able to test the applicant’s evidence through questioning, filing of evidence and the provision of final arguments. It noted that if the TWN wished for more consultation, it would have to provide details of what it was envisioning and details about its own environmental assessment process, including anticipated timelines. In its letter, the NEB also noted that:

[it was] currently determining the completeness of the project application. If the application is found to be complete, the Board will issue a Hearing Order providing details on the hearing process. The Board will also determine the list of participants, including the method of participation for each (i.e., commenter or intervenor), in due course.

[53]           On March 5, 2014, the TWN wrote to the Minister (Appeal Book, Volume 2, Tab 4M) to explain why it felt that the Crown had a duty of consultation with respect to the Project and why the Crown’s position on consultation was legally deficient and failed to uphold the honour of the Crown. Among other things, it indicated that the duty included, in its view, consulting the TWN in designing the overall framework for consultation and environmental assessment of the Project, that is, upstream of the NEB role, and to accommodate its traditional laws and decision-making rights in doing so. The TWN added that this had not occurred to date. It noted that “the NEB cannot consult with TWN or delegate procedural aspects of the Crown’s duty to [TM] in relation to its facilities application because the NEBA does not empower the NEB to consult with Aboriginal peoples”. It noted that under the current statutory framework, the NEB could not design and implement a decision-making process which would accommodate the TWN’s governance rights and could not alter timelines which would accommodate decision-making in respect of TWN rights and interests. It further noted that, in its view, the timelines imposed by the NEBA and the CEAA 2012 did not provide sufficient time for the TWN to evaluate the Project and gather and provide traditional ecological knowledge and information as to its customs, practices and traditions nor was the time allowed sufficient to have a meaningful dialogue and participation. It added that the public hearing could not be a substitute for formal First Nations consultation. Direct engagement with First Nations, including with the TWN, was required.

[54]           It is important to mention that in its March 5, 2014 letter, the TWN acknowledged that the NEB was in the process of making decisions about the definition of the Project, the scope of factors that were to be assessed under the CEAA 2012 and other key environmental assessment issues in the absence of consultation with the TWN.

[55]           It is also worth noting that the TWN appears to have been opposed to the List of Issues issued in July, 2013, saying that the List excluded consideration of effects arising from upstream and downstream development, and that it was not consulted in this respect. It noted that this might prevent the NEB and subsequently the Crown from considering critical issues that would adversely impact the TWN’s rights and interests. Although a copy of this letter was sent to the Prime Minister of Canada and the Minister of Aboriginal Affairs and Northern Development Canada, the NEB was not apprised of these concerns by the TWN at any time relevant to this appeal.

[56]           On April 2, 2014, the NEB issued the Decisions.

[57]           On April 22, 2014, the TWN answered the NEB’s letter of March 4, 2014 that had requested details on what kind of consultation it would be expecting and sought details on the TWN’s own assessment process and timelines (Appeal Book, Volume 2, Tab 4Q). The April 22^nd letter did not provide any detail regarding the TWN’s Stewardship Policy or the other two documents referred to in its January 31, 2014 letter. Nor did the TWN provide any timeline in respect of its own process. In fact, it would have been difficult for it to have provided any such timeline, given that, as noted earlier, in December 2012, the TWN had decided not to engage its Stewardship Policy and had refused TM’s request to start a formal evaluation process. (However, see paragraph 59 below regarding a subsequent change in position of the TWN).

[58]           In its April 22^nd letter, the TWN took the position that the NEB process or decision could not act as a substitute or replacement for its own assessment of the Project or the decision that it would ultimately make under its own Stewardship Policy. As section 18 of CEAA 2012 applied regardless of the TWN’s role as an intervener, it took the position that the NEB’s questions as to the TWN’s expectations in respect of consultation should be deferred until the jurisdictional issues “have been fully canvassed”. It then noted that the NEB had made three important decisions on April 2, 2014 without consulting or cooperating with the TWN, and asked “the NEB to change course and reverse [its] priorities” which appeared to be responding to a specific application instead of advancing jurisdictional cooperation. It noted that the NEB’s approach raised concerns that “it will now be more difficult for the NEB to cooperate with TWN to ensure that both jurisdictions, to the extent possible, take a coordinated approach to their respective environmental assessments” (Appeal Book, Volume 2, Tab 4Q). It also asked the NEB for transparency regarding its duty under section 18 of CEAA 2012 by requesting that the NEB disclose whom it had been dealing with as a jurisdiction and how it proposed to coordinate its assessment process with that of other jurisdictions, including the TWN.

[59]           On April 30, 2014, the TWN wrote to TM asking it to reapply for an evaluation under the TWN Stewardship Policy. It noted that its request to the Crown that it establish a government to government consultation process had remained unanswered (see its letter of December 12, 2012), and that, since then, TM’s formal application had been filed and the Project would result in an EA under CEAA 2012 (referring to CEARIS website). It mentioned that the TWN anticipated that its letter to the NEB would result in a further discussion on a cooperative approach to assess the Project (referring, presumably, its letter of January 31, 2014). The TWN added that it was “surprised and disappointed with the many things decided on April 2, 2014 without any discussion with TWN”. It stated that, nevertheless, the TWN had determined that it was appropriate to conduct a technical review of the Project and its potential impact on the TWN, and thus invited TM to refile its $250 fee, noting that the process would require complete cost recovery for all TWN activities associated with its assessment. The TWN also stated that, given the continued absence of Crown involvement and an agreed-upon TWN-Crown consultation process, the Stewardship Policy assessment would be carried out without any Crown consultation and that no aspect of any interaction between the TWN and TM, including the letter dated April 30, 2014, constituted a Crown engagement or consultation in respect of the Project.

[60]           On May 2, 2014, the TWN served and filed its application for leave to appeal the Decisions.

[61]           On May 15, 2014, the NEB replied to the TWN’s April 22, 2014 letter (Appeal Book, Volume 3, Tab 6K). It indicated that only one other First Nation had responded to its offer to consult and cooperate with respect to the EA of the Project as a jurisdiction within the meaning of section 18 of CEAA 2012. It referred the TWN to the correspondence with that First Nation available on the NEB’s online public registry. With respect to its general views on section 18, the NEB said:

The Board considers the purposes of section 18 to, among other things, enable improved effectiveness and efficiency of the [NEB] and any other applicable jurisdictions’ processes for assessing the environmental effects of a designated project. This could include, among other things, considering ways to avoid duplication between those assessments, coordinating process steps, facilitating information exchanges, and coordinating timing. As noted in section 4 of the CEAA 2012, this legislation is also intended to promote communication and cooperation with Aboriginal peoples regarding environmental assessments.

[62]           The NEB further mentioned that, in order to explore the opportunities for cooperation, the NEB needed information from potential jurisdictions about how they met the definition of jurisdiction and their intended environmental assessment process for the Project or how they intend to exercise their powers, duties and functions in that respect. Once the information was received, the NEB noted that there “are likely some opportunities that could be realized, although there are some constraints as well” because, for example, the NEB is required to complete its assessment of a designated project within certain time limits. The NEB noted that this was one of the considerations that it must take into account when determining the extent to which cooperation is practical. The NEB went on to say that:

“[t]he [NEB] must remain mindful of its quasi-judicial role, and cannot enter into cooperation arrangements that could conflict with that role” (Appeal Book, Volume 3, Tab 6K).

[63]           The NEB also dealt with a concern expressed by the TWN with respect to the oral questioning of First Nations’ traditional knowledge holders and referred to its Procedural Direction number 1. It noted that when it issued its Hearing Order and other correspondence on April 2, 2014, there had not yet been a response to its own letter and without details as to the TWN’s environmental assessment process or how it intended to exercise its powers, duties and functions, it was not possible for the NEB to consider opportunities for cooperation. The NEB reiterated the rights of an intervener in the process and mentioned the fact that the TWN had already asked written questions to TM through the NEB process.

[64]           Between the summer of 2014 and the summer of 2015, the TWN continued to correspond with the Minister to seek direct government to government consultation about the Project outside the NEB hearing process. The TWN also corresponded with the NEB regarding its status as a jurisdiction and how the two could collaborate. It also corresponded with the MPMO expressing its dissatisfaction with the consultation process of the Crown. Given that the issue of whether the NEB actually fulfilled all its obligations under section 18 after April 2, 2014 is not before us, we do not propose to go into the details of this correspondence to which the parties made little, if any, reference. Suffice it to say that after the TWN provided its documentation to the NEB and then its proposed timeline in November 2014, the NEB confirmed the TWN’s status as a “jurisdiction” on what it described as a broad interpretation of section 18 of CEAA 2012.

[65]           The TWN filed various information requests (IR), using the NEB process. Apart from sending an IR to TM in May 2014, it made an IR on June 21, 2014 to the “federal agencies”, including several pages of questions in respect of how the Crown had met its duty to consult to that point. The response to such an IR is not in the record before us. The MPMO also filed an IR asking the TWN various questions in relation to the concerns that the MPMO had identified as having been raised by the TWN to that point, asking what specific concerns remained to be addressed. Again, the response of the TWN is not before us.

[66]           On May 26, 2015, the TWN filed its technical assessment report, as well as its expert evidence before the NEB. The TWN concluded that it cannot accept any risk of a spill, even on a small scale, let alone a worse-case spill, and that it would thus not consent to the Project going ahead.

[67]           On May 27, 2015, as part of the evidence submitted by NRCan (MPMO), the NEB received the preliminary assessment of the rights of the First Nations involved in the Crown consultation process (see paragraph 5 above), as well as details of the consultation plan of the Crown (Supplemental Appeal Book, Volume 2, Tab 15, and Affidavit of Mark Youden dated January 21, 2016.) There is no evidence that the NEB was made aware of the result of this assessment or of the details of this consultation plan at any time prior to April 2, 2014.

[68]           It is worth reproducing the following passage of the May 27, 2015 submissions of NRCan in respect of the Crown consultation plan:

49. Information made available to the Crown throughout each phase of the consultation process will be consolidated into a Crown Consultation Report, which is separate and distinct from the NEB report to the GIC. The Crown Consultation Report will summarize the procedural aspects of consultations undertaken and the substantive issues raised by Aboriginal groups, as well as how these issues may be addressed in this process. Draft sections of the Crown Consultation Report will be shared with Aboriginal groups for review and comment before it is finalized and used to inform the GIC.

50. In addition to providing an opportunity to review and comment on the Crown Consultation Report, Aboriginal groups may have an opportunity to provide a submission outlining any outstanding concerns, issues or fundamental views in respect of the Project that would, along with the Crown Consultation Report, fully inform the Crown about Aboriginal views.

51. The results of the early engagement, NEB review process and post-hearing consultations are consolidated into an information package that supports GIC decision-making with respect to the Project.

(Page 1286, paragraphs 49 to 51 of the May 27, 2015 written evidence submission)

[69]           The above-mentioned documents namely, the consultation report and any submissions made by First Nations on this report, particularly those of the TWN, are not included in the record before us.

IV.             Analysis

A.                Preliminary Issues

[70]           The role of the courts when administrative decisions are challenged, be it by way of appeals or applications for judicial review, is the same. It is to first to “deal with any preliminary issues, determine the standard of review, use that standard of review to assess the administrative decisions to see if the court should interfere, and then, if we consider interference to be warranted, decide what remedy, if any, should be granted”: Northern Gateway at paragraphs 76-77 and Laïque Québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (Laïque Québécois).

[71]           We will thus proceed first with the preliminary issues described earlier at paragraphs 25 and 26 above. Broadly speaking, what the AG and TM posit is that it would be inappropriate for this Court to decide the questions raised by the TWN (see paragraph 24 above) that were not raised by it before the NEB, knowing that the TWN could have raised them and chose not to do so. Also to be considered is the fact that, in the subsequent process, the TWN was fully heard on issues related to its substantive concerns flowing from the impact and the risks associated with increased marine shipping. Further, before the GIC makes one of the decisions set out at sections 53 and 54 of the NEBA, the TWN will have the ability to address any concern as to whether the Crown’s duty to consult has been met, or whether the process set out in the NEBA and the CEAA 2012 has been followed (see also sections 30 and 31 of the CEAA 2012).

[72]           To deal with the preliminary issues, we will consider the statutory scheme, the relevant principles of administrative law, the nature of the Decisions and whether they were intended to be final in respect of any issue, and the particular circumstances of this case as it stands today.

1)        Statutory Framework and administrative law principles

[73]           The distinctive features and the uniqueness of the legislative framework which provide a complete code for the issuance of a CPCN have very recently been fully described in Northern Gateway at paragraphs 92 to 124. We adopt that description, and there is no need for us to repeat it here. What is important to recall is that the GIC is the only decision-maker in respect of the approval of an application for a CPCN.

[74]           We will however reproduce subsections 22(1) and (4) of the NEBA because the TWN’s proceedings were instituted pursuant to subsection 22(1) and subsection 22(4) was subsequently added when the legislator adopted the new statutory framework for the issuance of a CPCN:

[75]           It is only in 2012 that the legislator added subsection 22(4) to make it clear that for the purpose of this section, the report submitted by the NEB under sections 52 and 53 of the NEBA, or sections 29 and 30 of the CEAA 2012 does not constitute a decision or order of the Board. The same applies to any part of any such report.

[76]           CEAA 2012 does not contain a provision dealing with the review of decisions made thereunder.

[77]           Subsection 22(1) of the NEBA applies to a large number of decisions where the NEB is the final decision maker. These include interlocutory decisions such as a final ruling on an application to intervene or a final decision disposing of an application to approve an application under sections 44, 58 and 58.11 of the NEBA, for example. However, in our view, it does not apply to the Decisions made in this case, for the reasons that follow.

[78]           The legislator is presumed to know the general principles of administrative law that have been applied by the courts in their review of administrative decisions. The relevant principles here are at the very core of administrative law. First, whether the review is initiated by way of an appeal or a judicial review application, the Supreme Court of Canada made it clear that courts do not review decisions of administrative tribunals on the same standard of review as they review decisions of courts such as the Federal Court (Laïque Québécois). Second, except in exceptional cases, courts should not intervene prematurely in the administrative process set out by the legislator and the administrative tribunal (Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at paragraphs 30-33). Finally, courts do not generally deal with issues that could have been raised before the administrative tribunal but were not so raised (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011SCC 61at paragraph 23, [2011] 3 S.C.R. 654; Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, as per paragraphs 46, 47, 54, 55 and 57, [2015] 4 F.C.R. 75). A corollary to these principles is that decisions of administrative tribunals are generally assessed on the basis of the record that was before that decision-maker at the time it made its decision.

[79]           The Supreme Court of Canada has repeatedly explained that these general principles are meant to ensure that courts respect the legislator’s choice that certain questions be decided by expert tribunals or other expert administrative decision makers, and that when courts are called upon to intervene, they should have the benefit of that expertise as well as an appropriate record to do so.

[80]           That the record typically must be the one that was before the administrative decision-maker is no trivial matter. This ensures that courts will properly apply the standards of review. Indeed, it is important to underline that if the parties were able to add whatever evidence they thought relevant to argue new issues, the courts would in fact be simply substituting their own views for those of the administrative decision makers. This is inappropriate not only in respect of factual findings that should be left to be made by the administrative decision-maker, but also in respect of questions of law that call for an interpretation of the decision-maker’s home statute or a closely-related statute where the presumed standard of review is reasonableness. This standard entitles the decision-maker to deference and, in most cases, to a range of possible interpretations.

[81]           Naturally, as is almost always the case, these general principles bear some exceptions to ensure that courts can deal with special circumstances. For example, where there exists an issue of procedural fairness that could not have been raised before the decision-maker, the parties may adduce new evidence supporting their allegation in that respect. Additional evidence may also be allowed to put issues into context, when appropriate (Association of Universities and Colleges of Canada v. Canadian Copyright Licencing Agency (Access Copyright), 2012 FCA 22 at paragraphs 18-20, 428 N.R. 297; Connolly v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44; Delios v. Canada (Attorney General), 2015 FCA 117; Bernard v. Canada (Revenue Agency), 2015 FCA 263 at paragraphs 16-28, 479 N.R. 189).

[82]           In the present proceeding, it is evident that much of the evidence in the record before us was not before the NEB on April 2, 2014. Some of it was filed by consent and we allowed the filing of additional material to provide context for the arguments with respect to the alleged breach of procedural fairness as well as the assertion that it is not appropriate, at this stage, for the Court to deal with the issues raised by the TWN.

[83]           The NEBA provides that the NEB has the jurisdiction to decide all questions of fact or law, including constitutional questions such as those raised before us (section 12 of the NEBA and Forest Ethics at paragraph 49). In fact, it appears from Appendix 7 to the Report that the NEB did deal with constitutional questions in the course of its proceedings, such as the constitutionality of section 55.2 of the NEBA, a review of the List of Issues on the basis of an alleged infringement of section 7 of the Charter of Rights and Freedoms as well as issues of procedural fairness, such as the alleged bias of a panel member.

[84]           Moreover, the legislator expressly provided that, subject to two exceptions that are irrelevant here, the NEB has the power to vary and rescind any of its decisions or orders (subsection 21(1) of the NEBA).

[85]           We see nothing in the applicable legislative scheme that would enable us to conclude that the legislator intended to allow a review by way of an appeal under section 22 on a broader basis than what is usually permitted by the application of the general principles of administrative law referred to above.

2)        Application of the principles to the Decisions

[86]           In its various memoranda (see note 22 and paragraphs 28 to 30 of the TWN’s Supplemental Memorandum of Fact and Law dated June 9, 2016), the TWN submits that:

i)                   The Decisions are final in that they cement the parameters of the EA going forward,

ii)                 Because the Crown will not be able to correct its failing after the fact, decisions taken in breach of the Crown’s duty to consult must be challenged at the first opportunity before the EA is carried out,

iii)               The Decisions are all important as they are not simply recommendations but decisions of prescribed steps set out in the statutory scheme,

iv)               A refusal to review these Decisions on appeal at the earliest opportunity would deprive the TWN of an effective remedy and would be unfair. It would result in cost, inconvenience and delay.

                                  i.          The Hearing Order

[87]           The NEB is master of its own process and procedure. It is thus important to first examine the Hearing Order in which the NEB explains, at section 4.4, how to raise a question of procedure or substance that requires a Board decision. The NEB makes it crystal clear that this must be done by way of a motion pursuant to section 35 of the National Energy Board Rules of Practice and Procedures, 1995. One cannot thus simply remain silent or totally disregard the process set out by the NEB by raising questions of law in correspondence with the NEB (see letter of April 22, 2014 at paragraph 58 above). A simple review of Annex 7 of the Report (pages 505-506) confirms that the NEB decided hundreds of motions on the merits presented in accordance with the Hearing Order (Subsequent Hearing Orders). This fluid approach is well-adapted to a proceeding involving so many parties. It is evident that, in this proceeding, the NEB exercised its discretion to use its power under section 21 differently than what is described in its general guidelines (Fourth Supplementary Book of Authorities of the TWN, Tab 2) as the NEB determined that it was prepared to revisit determinations upon receipt of a motion.

[88]           In light of this, it is difficult to conceive how the Hearing Order before us could be viewed as final and how its issuance without prior consultation of the myriads of potential interveners could constitute a breach of procedural fairness when it is clear that it was subject to amendment. Indeed, the Hearing Order was amended as early as April 24, 2014 after an intervener sought an extension of certain deadlines, and it has since then been substantially amended. In fact, in section 4.4 of the Hearing Order, the NEB refers to the possibility of seeking an extension by way of a motion as one example of how questions should be put to it. The NEB also granted an extension of one month to enable a First Nation that sought collaboration pursuant to section 18 of CEAA 2012 so that it could file its evaluation report outside of the filing deadlines imposed on other interveners by the version of the Hearing Order that was applicable at that time.

[89]           That said, even if the Hearing Order or any of the other Decisions for that matter were considered final and within the ambit of subsection 22 (1), the TWN has not established that they were made in breach of their procedural rights. The TWN also argued before us that the process adopted by the NEB was unfair because it did not provide it with an opportunity to be heard in respect of the issues addressed by the Hearing Order before the order was issued. However, the TWN failed to explain why the process chosen by the NEB (to make all requests by filing a motion), which clearly enabled the 400 interveners to seek changes to the Hearing Order (or any other Order made without the concerned party’s input for that matter), was not sufficient to meet the NEB’s duty to act fairly in the context of this massive and complex proceeding. If the TWN felt prejudiced by any part of the Hearing Order, it could have sought to have it changed. It appears it did not do so. In addition, there is no evidence that the Decisions had any impact on the ability of the TWN as an intervener to present all the evidence it thought relevant or to carry out its technical assessment of the Project in a satisfactory manner and to present that assessment to the NEB.

                                ii.          The Completeness Decision

[90]           With respect to the Completeness Decision, we first note that, in its reasons, the NEB expressly responded to the views expressed by those who actually raised concerns before April 2, 2014. There was no indication that the TWN could not have presented their views before April 2, 2014, as was done by the City of Burnaby and another First Nation. The TWN certainly was already of the view that there were problems as it expressed in its letter to the Minister dated March 5, 2014.

[91]           But more importantly, in its reasons (Appeal Book, Volume 1 at pages16-18), the NEB states that:

i)                   The completeness determination is really such an initial threshold question that the Board does not typically seek comments and makes its determination before deciding which participants it will hear from on a given application.

ii)                 The completeness determination, as an initial threshold question, does not preclude participants from expressing their views on and/or asking questions about what they consider to be deficiencies in the application through the hearing process.

iii)               The NEB takes a holistic approach to completeness and considers whether there are important issues missing from the application that would make participants unable to engage in a debate at the Public Hearing.

[92]           Here, the TWN refused to express its concerns to TM in accordance with the process set out in the NEB Filing Manual. That process seeks to ensure that an application such as that of TM would be as complete as possible when filed. In such circumstances, the TWN surely must be required to be proactive and diligent in voicing its concerns to the NEB, given that the deficiencies, if any, could be the direct result of its choice not to participate in the NEB process before the filing of the application.

[93]           An application does not need to contain every detail to be found complete enough to engage public debate through the hearing process. That is evidenced by the fact that the NEB, itself, sent a 95-page request for further details to TM on April 15, 2014, and shortly thereafter, the TWN issued its own IR to TM.

[94]           Our reading of Appendix 7 of the Report confirms that the NEB was open to vary its Completeness Decision if contested by way of a motion at any time before the final arguments started. But, it was not willing to forego the need to file a motion to do so. Once again, it appears that the TWN did not follow the process set out by the NEB to raise its concerns and thus did not avail itself of the opportunity to be heard.

                              iii.          The CEAA 2012 Decision

[95]           Turning now to the CEAA 2012 Decision, the NEB Filing Manual states that:

The NEB will review and assess the scope of the EA based on the evidence before it. Although elements of the project or the scope of factors to be considered may change over the course of a proceeding (e.g., as a result of public or Aboriginal input, or changes to the project), the application is usually the prime source of information and starting point for establishing what the Board will consider in the environmental assessment of a project.

[Our emphasis] (AG Book of Authorities Volume 1, Tab A-2, page 4A-20)

[96]           In this case, the CEAA 2012 Decision was varied when the Project was amended. Although no other motions were filed to seek any other changes, this does not mean that the NEB was not open to do so. In fact, very early on in the process (Ruling No. 25 dated July 23, 2014), the NEB did consider on its merits a motion made by several interveners seeking to expand the List of Issues published on July 29, 2013 so as to include “environmental and socio-economic effects associated with upstream and downstream activities”. This occurred even though the NEB had already expressly decided that it would not consider those specific issues. It is thus difficult to conclude that the TWN could not have presented to the NEB the issues raised before us in respect of the description of the designated project first advertised on CEARIS and later included in the CEAA 2012 Decision.

[97]           Furthermore, even if as argued by the TWN, the CEAA 2012 Decision was a decision within the meaning of subsection 22 (1), it appears unlikely that the description of the designated project in the CEAA 2012 Decision is the result of an error of law as opposed to the application of a rather clear definition in CEAA 2012 to the facts, i.e. to the Project. Leave was granted by this Court without any comment as to which question raised by the TWN was a question of law within the meaning of section 22. The test applicable to grant leave is not the same as that applicable by the panel hearing the matter, especially when its jurisdiction is involved. Moreover, the record before us contains much more detail than at the leave stages. Thus, res judicata simply does not apply.

[98]           As mentioned, the NEB included the impact of increased marine shipping in the List of Issues it made public in July 2013. It also included the cumulative effect such increased shipping may have as part of the factors to be reviewed under paragraph 19(1)(a) of CEAA 2012. If the TWN believed that there was a material difference between an assessment of the impact of increased marine shipping under the NEBA as opposed to under CEAA 2012, it ought to have raised the issue with the NEB as deciding that issue calls for an interpretation by this administrative tribunal of its home statute as well as a closely related statute. This is especially so where, as in this case, the argument is directed at what recommendations the NEB is empowered to make under each statute.

[99]           To summarize our views in respect of the Decisions, none were final. They did not cement the parameters of the assessment made by the NEB. Moreover, based on the evidence before us, it appears that the TWN chose not to avail itself of the opportunity to be heard to have the Decisions varied. Such failure would disentitle the TWN from arguing that the Completeness Decision and the CEAA 2012 Decision taint the Report and the NEB’s recommendations because they were not modified.

B.                 Section 18 of CEAA 2012

[100]       We now turn to what was presented as a distinct and separate issue from the constitutional issue of the Crown’s duty to consult - an alleged failure to make an offer to consult as per section 18 of CEAA 2012 prior to making the Decisions.

[101]       Contrary to what was argued, in our view, the NEB did offer to consult and collaborate pursuant to section 18 of the CEAA 2012 with any and all parties that might be “jurisdictions” on December 20, 2013, when it published its notice to that effect on CEARIS.

[102]       One of the purposes of the legislative scheme adopted in 2012 was to ensure the timely review of applications for a CPCN, whether or not they involve an EA under the CEAA 2012. While the TWN did not agree with the strict timelines in the legislation or that this legislative purpose is important, the NEB was nevertheless bound to pursue it and was required to deal with TM’s application expeditiously.

[103]       Prior to April 2, 2014, the TWN failed to provide the NEB with all the information the NEB reasonably required to determine the jurisdictional issue. It also failed to advise the NEB that it was expecting that no decisions would be made to advance the process set out in the NEBA without its status first being confirmed and a collaboration plan established.

[104]       In the circumstances, it would be inappropriate for this Court to comment further on how collaboration under section 18 should generally function as it has yet to really be addressed by the NEB. This is especially so, considering that the only issue here is whether the NEB had to offer to consult and collaborate before making the Decisions. There is nothing in the record as to whether the other responsible authorities under CEAA 2012 have issued any guidelines in that respect. There is no doubt that having guidelines dealing with this point would be beneficial, although the exact nature of the collaboration will likely vary depending on the circumstances. That is not to say, however, that without them, one could unduly delay the process provided for in the legislative scheme.

C.                 The Crown’s Duty to Consult

[105]       As mentioned, the TWN did not raise this constitutional issue with the NEB before seeking the intervention of this Court. Again, there is no doubt that it could have done so by following the process adopted by the NEB in this matter (see paragraph 83 above). This is particularly troubling with respect to the allegation that NEB had the duty to consult under CEAA 2012 as it was not until mid-way through its argument before us that the TWN took the position that the duty applied to the NEB, itself. This is contrary to the position the TWN expressed in its correspondence with the Minister. That the NEB could not itself consult was used as justification for requesting a government to government process or the setting up of a parallel process outside of the NEB process.

[106]       In addition, in Forest Ethics (at paragraphs 46, 47, 54 and 55), this Court reiterated that it is particularly important not to bypass the administrative tribunal process when dealing with constitutional issues. The Court even expressed some doubt as to whether it had the discretion discussed in Alberta Teachers when constitutional questions are raised for the first time before a reviewing court.

[107]       In its submissions with respect to the preliminary issue, the TWN particularly focused on the need to raise a potential breach of the Crown’s duty to consult at the earliest opportunity to ensure that it can obtain an effective remedy, i.e. to quash the Decisions and send the matter back to the NEB for redetermination.

[108]       In this particular case, we see no good reason to exercise our discretion in favour of the TWN on that basis. It cannot be said that putting the issue before the NEB before proceeding under section 22 of the NEBA would have unduly delayed the matter. Indeed, how could one conclude that the way the TWN chose to proceed could ever have led to the only prompt solution, when it bypassed the more obvious route of asking the NEB to consider its issues? In fact, the route the TWN chose has caused significant delay. Moreover, the TWN did not conduct itself as if a decision in the present proceeding was urgent.

[109]       Also, even if there had been a breach of the duty to consult, is not clear what remedy would be appropriate. It appears that the TWN had the opportunity to fully express its views to the NEB in respect of all of its concerns, including the impact of increased marine shipping and the fact that it was not prepared to accept any risk of a spill. Furthermore, the consultation process is not yet completed. Issuing a declaration in these circumstances about the scope of the duty to consult in respect of interlocutory decisions could have no practical effect as any breach might well have been remedied by the subsequent process before the Board or may still be remedied through the consultation that is currently ongoing.

[110]       The TWN relied on several cases, including some from the British Columbia Court of Appeal, where courts have intervened as soon as a “scoping decision” was made where the tribunal did not consult with an impacted Aboriginal group before issuing the scoping decision. None of these cases involved the unique legislative framework applicable here. They are also not particularly relevant to the determination of the preliminary issues that arise here considering the fluid process adopted by the NEB to ensure that all questions raised by interveners could be dealt with promptly by way of a motion. We therefore do not find the cases cited by the TWN to be of assistance.

[111]       Further, considering that the NEB has issued the Report, the question of whether or not the Crown has fulfilled its duty to consult is an issue that will have to be assessed and decided by the GIC (Northern Gateway at paragraph 166).The GIC has the power to ask the NEB to reconsider certain issues if it feels that it is necessary to do so. It can also refuse to give its approval if it concludes that the Crown has not met its constitutional duty to consult. Those decisions are themselves subject to review by this Court in due course, as was done in Northern Gateway.

[112]       Finally, we underscore that the Court must be careful not to use its discretion in a manner that would effectively take the matter out of the hands of the GIC contrary to the clear intention of Parliament.

[113]       In light of the foregoing, we have not been persuaded that the Court should intervene at this stage. However, we believe that in the particular circumstances of this case, the Court should ensure that the TWN is not prejudiced by this dismissal as the dismissal is grounded in part on the basis that it would be premature for the Court to address the issues surrounding consultation when the consultation process is ongoing and the GIC has not yet decided if the Crown discharged its duty to consult with the TWN about the Project. Thus, we propose that the dismissal be without prejudice to the TWN’s right to raise the issues it raised before us (with the exception of issues pertaining to the alleged final nature of the Decisions and the NEB’s alleged breach of section 18 of CEAA 2012 before April 2, 2014) in any proceeding it might deem necessary to institute to contest the ultimate decision of the GIC.

V.                Costs

[114]       This leaves only the issue of costs. As there was no further hearing after the adjournment was granted, we are satisfied that no costs should be awarded on the AG’s motion which was supported by the TWN. The matter of the costs resulting from the failure of the TWN’s counsel to give proper notice that the TWN had changed its legal position on a core component of the case is more serious. We have not been persuaded that the TWN could not have given such notice before October 27, 2015. Its new argument was premised both on this Court’s decision in Clyde River, issued in August 2015, and the Supreme Court decision in Carrier Sekani. Respect for the process of this Court and of the rights of the other parties to respond is essential. The TWN did not even advise the Court at the beginning of the hearing of its fundamental change in position, a change which it ought to have known was serious. Because of the nature of the question at issue, all agreed that the Court should hear the TWN’s argument subject to the parties’ right to consider it properly and make further submissions. We thus propose to grant costs in respect of the change in position the amount of $500.00 plus the traveling costs of one counsel only (each) to the AG and TM, who were required to re-attend in Vancouver as a result of the change in position. With respect to the appeal per se, considering the result and all the circumstances, we propose that each party bear its own costs.

"Johanne Gauthier"

"Mary J.L. Gleason"

I agree

Wyman W. Webb J.A.

ANNEX

National Energy Board Act, R.S.C., 1985, c. N-7

Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEAL FROM FOUR DECISIONS OF THE NATIONAL ENERGY BOARD DATED APRIL 2, 2014. FILE NUMBER: OF-Fac-Oil-T260-2013-03 02

DOCKET:	A-386-14
STYLE OF CAUSE:	TSLEIL-WAUTUTH NATION v. NATIONAL ENERGY BOARD, TRANS MOUNTAIN PIPELINE ULC, and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Vancouver, British Columbia
DATES OF HEARING:		October 27, 2015 January 22, 2016 lAST WRITTEN SUBMISSIONS JUNE 17, 2016
REASONS FOR JUDGMENT BY:		GAUTHIER J.A. GLEASON J.A.
CONCURRED IN BY:		WEBB J.A.
DATED:		September 6, 2016

APPEARANCES:

Maxime Faille Scott A. Smith Peter Seaman	For The Appellant
Asad Chaudhary	For The Respondent National Energy Board
Maureen Killoran Thomas Gelbman	For The Respondent Trans Mountain Pipeline ULC
Peter M. Southey Sarah L. Bird Dayna S. Anderson	For The Respondent Attorney General Of Canada

SOLICITORS OF RECORD:

Gowling Lafleur Henderson LLP Toronto, Ontario	For The Appellant
National Energy Board Calgary, Alberta	For The Respondent National Energy Board
Osler Hoskin & Harcourt Calgary, Alberta	For The Respondent Trans Mountain Pipeline ULC
William F. Pentney Deputy Attorney General of Canada Toronto, Ontario	For The Respondent Attorney General Of Canada