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ARTICLE · 18 MARCH 2020

Applying The Reasonableness Standard To Indigenous Consultation Requirements

Miller Thomson
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Assessing the implications of Coldwater v. Trans Mountain on major resource project approvals in Canada

CanadaGovernment, Public Sector
Megan Young
Megan Young
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Assessing the implications of Coldwater v. Trans Mountain on major resource project approvals in Canada

On February 4, 2020, the Federal Court of Appeal released its decision in Coldwater v. Trans Mountain, 2020 FCA 34 ("Coldwater"), considering legal challenges to the federal Cabinet's second approval of the Trans Mountain Expansion Project (the "Project"). The Court found that the Cabinet's decision to approve the Project and, in particular, its determination that Canada fulfilled its duty to consult Indigenous peoples in relation to the Project, was reasonable in light of the outcome reached on the facts and law, and the justification offered by the Governor in Council.1

In reaching this conclusion, the Court relied heavily on the recent Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ("Vavilov") to inform its analysis on the reasonableness of Cabinet's decision to approve the Project. The Court

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