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Indigenous - Duty to Consult (4). Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of a JR respecting a project "to tap oil and gas reserves far under the ocean floor and transport them to market".
Here, Stratas JA, makes observations that "will be of practical assistance to parties in future environmental assessments and Indigenous consultation processes" regarding the discretionary nature of JR, the rule of law and the equitable doctrine of 'clean hands':[50] At the end of the August 2020 session and in a follow-up email, the Agency offered to have further discussions with MTI to discuss the environmental impact statement. But MTI did not request any additional meetings with the Agency to discuss the marine transshipment issue.
[51] Based on this, Equinor says this Court should exercise its discretion to dismiss the appeal. It says that remedies on judicial review are always discretionary and the Court has the discretion to dismiss any application for judicial review for this sort of delay or lack of responsiveness.
[52] The Federal Court did not agree with Equinor. The Federal Court found that the appellants raised the issue before the Agency finalized the scope of the Project, and that was good enough. Whether the issue was raised in a meaningful, truly responsive way is open to question.
[53] In this Court, Equinor says that the Federal Court erred on this. At best, it says, the issues were raised late and, to some extent, in a general, fleeting way without supporting submissions. Equinor stresses that the purpose of the environmental assessment process under the Act is to allow for a meaningful assessment of environmental concerns and Indigenous concerns, but also to ensure that assessments are efficient and timely. In its memorandum and in oral argument, Equinor suggests that delay or lack of responsiveness in raising and pressing an issue can be a ground for the Court to dismiss an application for judicial review, in whole or in part, depending on the issue.
[54] What legal basis does Equinor assert for this? Equinor says that relief on judicial review is discretionary. In particular, it relies on this Court’s comments in Makivik Corporation v. Canada (Attorney General), 2021 FCA 184, [2022] 1 F.C.R. 311. At paragraph 60, this Court said that "“remedies on judicial review…are discretionary”" and "“[t]he categories of cases in which courts may exercise the discretion not to undertake judicial review are not closed”".
[55] Supporting this are the wide words of the Supreme Court in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713. There, the Supreme Court (at para. 37) states briefly and in passing that "“even if [an] applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief”".
[56] There is no doubt that relief on judicial review is discretionary. But that alone leaves out much of the story.
[57] Makivik Corporation and Strickland — and many other cases for that matter — do not stand for the proposition that the Court can deny a party relief just because the Court is unhappy, offended or annoyed with a party’s conduct. The Court’s discretion is not that open-ended.
[58] Nor could it be. If it were, then the results of cases would depend on the sensibilities of a judge, or, as the English jurist and scholar John Seiden once memorably put it back in the seventeenth century, relief would depend on "“the length of the Chancellor’s foot,”" a very "“uncertain measure”" indeed: John Seiden, Table-Talk: Being the Discourses of John Selden, Esq. (ed. Richard Milward, 1689); see also Lord Denning, Landmarks in the Law (London: Butterworths, 1984). That would be the rule of whim, not the rule of law.
[59] Under the rule of law — a concept enshrined in the preamble to the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, above) — judges must exercise discretions on stable legal standards, not idiosyncratic personal whims, feelings or vibes.
[60] In accordance with the rule of law, stable categories and rules have developed over time and regulate the reviewing court’s discretion to withhold relief in a judicial review. While the categories of judicial discretion are not ossified and can develop in response to modern considerations (for recent examples, see, e.g., Benison v. Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 and Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55), equitable doctrines themselves do have operative rules and limits, and the Court obeys them.
[61] Equinor’s submission appears to invoke the equitable "“clean hands”" doctrine: a party that has engaged in misconduct is not entitled to relief. But that doctrine does have a threshold: only truly reprehensible conduct of a certain sort qualifies: see, e.g., Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2006 FCA 14. For example, a party seeking to set aside an administrative decision for unreasonableness may be caught by the doctrine if, in the prosecution or defence of the administrative proceedings, it has conducted itself immorally, fraudulently or beyond the pale in something connected with the judicial review. As Thanabalasingham instructs us, this is a high threshold, one far from met in this case.
[62] However, there is some merit to Equinor’s submission that the appellants’ delay in raising certain issues disqualifies them from advancing issues that should have been raised earlier, not for reasons founded in equity, but for other reasons.
[63] Judicial review of an administrative decision is shaped by the standards set out in the legislation, here the Act, that governs and shapes the administrative decision. Absent a constitutional concern, the Act, properly interpreted, is the law of the land. The Act binds and applies to everyone, including all participants in the administrative process—and reviewing courts too.
[64] Here, the purpose of the Act matters. As judges, we do not determine the purpose of legislation by adopting what we would like to see in it. We cannot use our own view of the Act’s purposes by "“[creating] an unexpressed exception to clear language”": Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 at para. 23; Hunt v. Canada, 2026 FCA 88 at para. 13; and see also M. Mancini, "“The Purpose Error in the Modern Approach to Statutory Interpretation”" (2022), 59 Alta. L. Rev. 919 at p. 927, which the Supreme Court relied upon in the seminal case of Québec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316. . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of a JR respecting a project "to tap oil and gas reserves far under the ocean floor and transport them to market".
Here the court considers the adequacy of indigenous consultation respecting an offshore oil and gas project:C. Indigenous consultation
[32] The Federal Court correctly identified the standard of review on this issue: correctness on the existence and scope of the Crown’s duty to consult with MTI, reasonableness on the factual determinations upon which the Agency based its depth of consultation assessment (which the Minister adopted), and reasonableness regarding whether the consultation process was sufficient to meet the Crown’s duty to consult: see, e.g., Coldwater First Nation (2020) at paras. 24-27.
[33] The Agency gave MTI a full right to make submissions on this issue.
[34] The Agency found there was only a low likelihood of interaction between the Project and the salmon. While the communities represented by MTI have a right to fish for a moderate livelihood flowing from treaties and an Aboriginal right to fish for food, social and ceremonial purposes, and while some salmon might migrate from spawning rivers in New Brunswick to the area of the Project, the routine activities of the Project were far from the traditional territory and communities of MTI (640-2000 kilometers away), MTI had no treaty rights in the Project area, and the predicted impact to Atlantic salmon, and, thus, to MTI’s fishing rights, was minimal. This distinguishes this case from Clyde River v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 and Tsleil-Waututh Nation.
[35] The Federal Court agreed with the Minister’s view, which was the same as the Agency’s view. The Crown’s duty to consult existed but was low. In making these findings, the Federal Court made no reversible error. Based on the low level of potential impacts and the low likelihood of these impacts affecting MTI’s communities, the depth of consultation was low. In this regard, the Agency, the Minister, and the Federal Court were right to ignore "“mere speculative impacts”": Rio Tinto Alcan Inc. v. Carrier Dekani Tribunal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at para. 46; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. 2017 SCC 41, [2017] 1 S.C.R. 1099 at paras. 2 and 41.
[36] As mentioned, on the question of whether the duty is fulfilled, the standard of review is reasonableness. In a situation where, as here, the question is a factually suffused question involving issues such as the migration patterns of Atlantic salmon over tens of thousands of square kilometers, the Agency’s decision is relatively unconstrained. See generally Manitoba Metis Federation Inc. v. Brian Pallister et al., 2021 MBCA 47; Coldwater First Nation (2020); Gitxaala Nation; Tsleil-Waututh Nation.
[37] Before the Federal Court, MTI submitted that the Agency did not take its concerns seriously and, for that reason, the report should be viewed as fundamentally deficient. In other words, in this case the Indigenous consultation fell impermissibly below standard.
[38] The Federal Court rejected that submission. The Federal Court did not commit reversible error in doing so. Although the duty to consult was at the low end of the spectrum, the Agency’s process resembled a deeper process, in part as seen by the Agency’s recommendation of extensive accommodation measures, which the Minister incorporated into Project conditions. In all, the Agency gave MTI four comment periods to raise its concerns and funding to make submissions. It also held information and engagement sessions with MTI and Equinor to discuss the Project and its impacts.
[39] The Agency also considered a 2018 Indigenous Knowledge Study and a technical review provided by MTI and put the information from those sources to Equinor, required that Equinor give it information on this, received information, and considered all of it. In the end, MTI was not, and is still not, satisfied by Equinor’s reaction to the Indigenous knowledge, but it cannot be said that the Agency failed to take it into account in its assessment. Indeed, as mentioned, the Agency recommended extensive accommodation measures that became Project conditions.
[40] At the end of its process, the Agency found as a factual matter that the consultations had been procedurally and substantively adequate.
[41] The Agency also addressed MTI’s concerns in responses it provided to the appellants during the process and also in its report. The Agency released its report in draft for comment and received comments. In part in response to these comments, it recommended conditions—best characterized as conditions, accommodations and mitigation measures—to mitigate potential impacts to interests and treaty rights. Some of these were in response to concerns, albeit remote, that a major subsea release of oil could take place. In its best scientific view on the facts, the Agency found that the measures would serve to minimize or avoid impacts on Aboriginal or treaty rights.
[42] The conditions the Agency proposed included the continued incorporation of Indigenous knowledge in follow-up plans and monitoring plans, ongoing research on Atlantic salmon, follow-up programs, continued engagement with Indigenous groups and annual public reporting, and monitoring and spill response programs requiring Indigenous engagement.
[43] Much of the basis for the Agency’s conclusions appears in the factual record before it. The Agency found that the only way the Project could impact MTI’s interests was through the effects on species important to MTI, such as the Atlantic salmon, that might travel through the Project area and later be harvested. On the evidence before it, the Agency found that for routine Project operations, effects on the salmon would be low. On the evidence, the Agency also found that the risk of a major spill, which the Agency did note would have profound effects, was very low. These are factual and evidentiary-based findings that sustain the Agency’s conclusions, the Minister’s assessment of the Agency’s report, and the Minister’s conclusion on the consultation issue.
[44] On this constellation of facts gleaned from the evidentiary record before it, the Federal Court held—and was legally right to hold—that the Crown’s duty to consult MTI lay at the low end of the spectrum given that MTI has no Aboriginal or treaty rights in the areas of the Project, the Project’s predicted impacts on migrating species of importance to MTI were minimal and so any Project impacts on MTI’s fishing rights were minimal. The appellants have not persuaded me that there is any reviewable error or error of law in these findings.
[45] Overall, based on the Agency’s report and its consideration of the matter, the Minister formed the view that the Agency considered MTI’s concerns and appropriately evaluated them. The Minister accepted all of the Agency’s recommended conditions and made them binding requirements. The Minister’s view is sustainable, indeed well-established, on this evidentiary record. The Agency’s work was far from an exercise in "“window-dressing, box-ticking and nice-sounding words”"; rather it was "“the hard work of taking on board [Indigenous] concerns [and] exploring possible solutions”". See Raincoast Conservation Foundation at para. 58. While not dispositive by itself, the suggested imposition of many demanding conditions on the Project does confirm that. . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of a JR respecting a project "to tap oil and gas reserves far under the ocean floor and transport them to market".
Here the court considered the Crown's duty to consult obligation:[16] On the issue of Indigenous consultation, at times during argument in this Court the appellants seemed to focus on alleged deficiencies in the Agency’s process and whether it could have been longer or better. That is not the correct question: Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, [2020] 3 F.C.R. 3 at para. 29 (Coldwater First Nation (2020)); Gitxaala Nation at paras. 182-184; Tsleil-Waututh Nation v. Canada (A.G.), 2018 FCA 153, [2019] 2 F.C.R. 3 at paras. 226, 508-509 and 762.
[17] Rather, as the Federal Court appreciated, the question in this Court focuses on the Minister’s decision, as assisted and informed by the Agency’s report, that the Crown had met its consultation obligations. This takes us into whether the Agency correctly identified the existence and scope of the Crown’s duty to consult, whether the Agency was reasonable when assessing the consultation, and whether, overall, the process was sufficient to meet the Crown’s duty to consult.
[18] In this examination, the process of consultation does not impose a duty on the Crown to reach agreement, need not be perfect, and can be addressed through ongoing and future processes: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para. 62; Coldwater First Nation (2020) at para. 189; Gitxaala Nation at paras. 179-182; Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89 at para. 49; Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216 at para. 37. Dissatisfaction, disappointment or disagreement with the outcome reached after consultation is not enough to trigger a breach: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 at para. 83; Bigstone at para. 70. The Indigenous right to be consulted and to have its interests meaningfully accommodated in certain circumstances is enormously important, with constitutional underpinnings, but Indigenous groups do not have a right to veto a project. . Saskatchewan (Environment) v. Métis Nation – Saskatchewan
In Saskatchewan (Environment) v. Métis Nation – Saskatchewan (SCC, 2025) the Supreme Court of Canada dismissed a provincially-brought JR seeking "a declaration that Saskatchewan breached its duty to consult by failing to consult MNS about the impact of the exploration permits with respect to title and commercial harvesting rights". The appeal relates to an interlocutory "motion to strike portions of MNS’s application, based on abuse of process", due to the existence of other proceedings involves the same matters.
The court considers the indigenous duty to consult, here while indigenous rights are still uncertain:[50] The duty to consult operates pending a final determination of claims (Haida, at para. 38; see also Rio Tinto, at para. 33). As such, any arguments that the duty to consult does not arise until after rights and title claims are resolved are inconsistent with this Court’s jurisprudence. The duty to consult serves “to provide protection to Aboriginal and treaty rights” while land and resource claims are ongoing, and to further “the goals of reconciliation between Aboriginal peoples and the Crown” (Rio Tinto, at para. 34, citing Haida). As this Court explained in Haida, at para. 27:The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. [51] At all stages, both sides must be governed by the duty of mutual good faith (Haida, at para. 42; Behn, at para. 42; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at para. 88). The Crown must possess “‘the intention of substantially addressing [Aboriginal] concerns’ as they are raised” (Haida, at para. 42, quoting Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168). On their end, Indigenous claimants “must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached” (para. 42).
[52] The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida, at para. 35; Desautel, at para. 72). In other words, three conditions must exist for the duty to consult to arise: (1) actual or constructive knowledge of the potential existence of the Aboriginal right or title; (2) contemplated Crown conduct; and (3) a potential adverse effect on the asserted right (Haida, at para. 35; Rio Tinto, at para. 51; Desautel, at para. 72).
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