Vancouver (Musqueam, Squamish and Tsleil-Waututh Territory- The Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band – have been denied leave to appeal by the Supreme Court of Canada. “We are extremely disappointed by today’s decision by the Supreme Court of Canada,” said Chief Leah George-Wilson. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.” Although today’s decision marks the end of the road for this legal challenge, First Nations have vowed to explore all legal options to protect their rights, land, water and climate.

The impact of Coldwater First Nation v. Canada 2020 FCA 34 (“Coldwater decision”) of Feb. 4, 2020 is to weaken the constitutional duty to consult to “a procedural duty to provide reasons Instead of looking at what happened during consultation to determine whether it was meaningful and upheld the honour of the Crown (the test for meaningful consultation), the Federal Court of Appeal (FCA) limited their review to the reasonableness of Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. The court held that Cabinet’s decision, including the outcome reached and justification for it, was reasonable, relying on Cabinet’s own decision document and accompanying explanatory note.

Because the Canadian government also owns the TMX project, Cabinet’s assessment of the adequacy of their own consultation should not invite the level of deference conferred to decision makers in Vavilov.
http://nationtalk.ca/story/media-release-and-legal-backgrounder-first-nations-extremely-disappointed-by-supreme-court-of-canadas-refusal-to-hear-tmx-appeal-but-vow-to-keep-fighting