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ARTICLE · 12 FEBRUARY 2020

Trans Mountain Pipeline Approval Upheld Using New Standard Of Review Principles

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On February 4, 2020, the Federal Court of Appeal in Coldwater Indian Band et al. v. Attorney General of Canada et al.1 considered whether to uphold the Order in Council approving the Trans Mountain Expansion Project.

CanadaGovernment, Public Sector
Thomas Isaac
Thomas Isaac
Arend Hoekstra
Arend Hoekstra
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On February 4, 2020, the Federal Court of Appeal in Coldwater Indian Band et al. v. Attorney General of Canada et al.1 considered whether to uphold the Order in Council approving the Trans Mountain Expansion Project (Project) against claims that Canada had failed to appropriately consult and accommodate Indigenous concerns.

In upholding the authorization, the Court applied new principles from the Supreme Court of Canada (SCC) for reviewing regulatory and Crown decisions, including decisions relating to the Crown's duty to consult. These principles, set out in a trilogy of SCC decisions released in December 2019, emphasize that deference must be given to Crown decision makers, who are to be evaluated on a standard of reasonableness. In particular, deference is owed to the decision maker where the Crown decision does not suffer from errors in reasoning or logical deficiencies, and where there is "a chain of reasoning progressing from a reasonable view of the evidence

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