Federal Court Judgments

Federal Court
Ottawa, Ontario
S.E. Roussel J.
Heard: July 10, 2019.
Judgment: January 28, 2020.
Amended judgment: February 4, 2020.
Docket: IMM-6376-18

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[2020] F.C.J. No. 116 [2020] A.C.F. no 116 2020 FC 154

Between Shelina Sarker, Smm Ohi and Samia Kabir, Applicants, and The Minister of Citizenship and
Immigration, Respondent

(24 paras.)

Counsel

Laila Demirdache, for the Applicants.

Kelly Keenan, for the Respondent.

JUDGMENT AND REASONS

S.E. ROUSSEL J.
 I.Overview

1  The Applicants, Ms. Shelina Sarker and her two (2) children, Ohi and Samia, are citizens of Bangladesh. They seek judicial
review of a decision by a Senior Immigration Officer [Officer] dated November 30, 2018, denying their application for
permanent residence based on humanitarian and compassionate [H&C] considerations.

2  The Applicants entered Canada as visitors in December 2014. They filed a claim for refugee protection on January 13, 2015,
alleging a fear of persecution based on the Principal Applicant's sexual orientation. In March 2015, the Refugee Protection
Division [RPD] denied their claim for protection, after finding that the Principal Applicant was not credible with respect to a
number of issues. In October 2015, the Refugee Appeal Division [RAD] confirmed the RPD's determination and dismissed the
Applicants' appeal.

3  In March 2016, the Principal Applicant submitted an application for permanent residence based on H&C considerations for
herself and her children. The application was refused in May 2016. Three (3) months later, the Applicants obtained temporary
residence permits and have remained in Canada since.

4  In July 2017, the Applicants submitted a second application for permanent residence based on H&C considerations. In support
of their application, they relied on three (3) factors: (1) the hardship they would encounter if forced to return to Bangladesh; (2)
the best interests of the children; and (3) their establishment in Canada.

5  On November 30, 2018, the Officer refused their H&C application, finding that there was insufficient supporting evidence
concerning the Principal Applicant's perceived sexual orientation and the associated risk-related hardships in Bangladesh. The
Officer also found that while the Applicants had demonstrated some degree of establishment in Canada, the duration of their stay
and their establishment in Canada were not so substantial that they could not return to Bangladesh and re-establish themselves.
Finally, the Officer determined that the Principal Applicant had not demonstrated that the general consequences of relocating and
resettling back in Bangladesh would be "counter" to the best interests of the children. The Officer concluded that a positive
exemption on H&C considerations was not warranted.

6  The Applicants now seek judicial review of the Officer's decision. They submit that the Officer: (1) erred in assessing the best
interests of the children; (2) erred in assessing the evidence in support of the H&C application; and (3) made veiled credibility
findings.

 II.Analysis

7  This application was argued prior to the Supreme Court of Canada's recent decisions in Canada (Minister of Citizenship and
Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. Therefore, the
parties addressed the applicable standard of review under the framework of Dunsmuir v New Brunswick, 2008 SCC 9. Since the
Applicants had argued that the correctness standard applied to the issue of whether the Officer applied the wrong test for
determining the best interests of the children, I issued a direction on December 30, 2019 inviting the parties to make additional
submissions on the appropriate standard of review and the application of that standard to the present case.

8  The parties submit that the applicable standard of review for all of the issues is now reasonableness. I agree. None of the
situations identified in Vavilov for departing from the presumptive standard of reasonableness apply here (Vavilov at paras 10,
16-17).

9  In conducting a reasonableness review, the focus of the reviewing court must be on the decision actually made by the decision
maker, including both the decision maker's reasoning process and the outcome (Vavilov at para 83). The elements of a reasonable
decision were summarized by Justice Rowe in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67:


o [31] A reasonable decision is "one that is based on an internally coherent and rational
chain of analysis and that is justified in relation to the facts and law that constrain the
decision maker" (Vavilov, at para. 85). Accordingly, when conducting reasonableness
review "[a] reviewing court must begin its inquiry into the reasonableness of a
decision by examining the reasons provided with 'respectful attention' and seeking to
understand the reasoning process followed by the decision maker to arrive at [the]
conclusion" (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should
be read holistically and contextually in order to understand "the basis on which a
decision was made" (Vavilov, at para. 97, citing Newfoundland Nurses).

o [32] A reviewing court should consider whether the decision as a whole is reasonable:
"what is reasonable in a given situation will always depend on the constraints imposed
by the legal and factual context of the particular decision under review" (Vavilov, at
para. 90). The reviewing court must ask "whether the decision bears the hallmarks of
reasonableness -- justification, transparency and intelligibility -- and whether it is
justified in relation to the relevant factual and legal constraints that bear on the
decision" (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper
Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).

o [33] Under reasonableness review, "[t]he burden is on the party challenging the
decision to show that it is unreasonable" (Vavilov, at para. 100). The challenging party
must satisfy the court "that any shortcomings or flaws relied on . . . are sufficiently
central or significant to render the decision unreasonable" (Vavilov, at para. 100). [...]

o [34] The analysis that follows is directed first to the internal coherence of the reasons,
and then to the justification of the decision in light of the relevant facts and law.
However, as Vavilov emphasizes, courts need not structure their analysis through these
two lenses or in this order (para. 101). As Vavilov states, at para. 106, the framework
is not intended as an invariable "checklist for conducting reasonableness review". [...]
10  Applying this framework to the case at hand, I find that the decision of the Officer fails to exhibit the requisite degree of
justification, intelligibility and transparency and is therefore unreasonable.

11  While the concept of sufficiency of evidence is an issue that will attract much deference on the part of the reviewing court
(Vavilov at para 125), findings of insufficiency must be explained (Magonza v Canada (Citizenship and Immigration), 2019 FC
14 at para 35). Here, several of the Officer's findings are articulated in terms of "insufficiency of objective evidence" without
considering the evidence on the record or offering a rationale for making the finding.

12  One such example is where the Officer finds that the Applicant has provided "insufficient objective evidence" to support her
statement that her siblings have disowned her and sold the property she inherited from her parents, that she was fired by her
employer and that she did not know how she would be able to provide for her children.

13  To support her application for permanent residence, the Principal Applicant produced an affidavit from an individual named
Jamal Din Sumon. He states in his affidavit that he is a professor at a college in Bangladesh and a family friend. He claims that
he has known the Principal Applicant and her siblings approximately twenty (20) years. Mr. Sumon also states that the Principal
Applicant's brother and sister sold the joint property she inherited from her father and that he had spoken to one of the new
owners. Notwithstanding this information, the Officer finds that "insufficient objective evidence" was provided to support the
statement that the Principal Applicant's siblings sold the property. While it was open to the Officer to assess the evidence
adduced by the Applicants, there is no coherent and rational analysis in the reasons demonstrating how the Officer came to this
conclusion and why Mr. Sumon's evidence is insufficient or lacks objectivity. Mr. Sumon is not a party to these proceedings, he
is not a member of the Principal Applicant's family and he has also spoken to one of the owners.

14  I also note the Officer's finding that Mr. Sumon's affidavit holds little probative value to support the Principal Applicant's
claim that she has suffered significant losses with respect to her family. Mr. Sumon states in his affidavit that the Principal
Applicant's brother and sisters disowned her after her house was vandalized by people "annoyed" by her sexual orientation.
Again, the Officer fails to provide a coherent and rational explanation for discounting this evidence.

15  I recognize that the reasons must be read holistically and that judicial review is not a treasure hunt for errors. That being said,
I find that the Officer's findings on these two (2) points are sufficiently central to the decision to render it unreasonable. They are
part of the foundation upon which the Officer relies to determine: (1) that the Applicants would not suffer undue hardship in re-
establishing themselves in Bangladesh; and (2) that it would not be contrary to the children's best interests for them to return to
Bangladesh. Particularly, in assessing the best interests of the children, the Officer relies on the Principal Applicant's relationship
with her family in Bangladesh to find that the children will have the support of their mother and "extended family" (the children's
four (4) aunts) in Bangladesh should they leave Canada. If the Principal Applicant is estranged from her siblings, as indicated in
the affidavits of Mr. Sumon and the Principal Applicant, the Officer's finding that the Principal Applicant's children can rely on
the support of the Principal Applicant's extended family cannot be justified on the facts of the record. Moreover, the loss of her
home in Bangladesh can significantly impact the Principal Applicant's re-establishment in Bangladesh.

16  Another example where the Officer relies on the argument of "insufficient objective evidence" concerns the affidavit of
Catherine Eleanor Lowther. The Officer gives little probative value to her affidavit because she has provided insufficient
objective evidence: (1) "regarding her expertise on determining the veracity of the Applicant's story"; (2) "to establish [her]
credentials as an expert in the country conditions in Bangladesh"; and (3) "to support [her] statements regarding her contact with
people in Bangladesh".

17  Ms. Lowther states in her affidavit that she is the wife of the former Canadian Ambassador to Bangladesh. Her husband held
this position from 2008 to 2011, and she accompanied him during his posting in Bangladesh. During this time, she taught English
to Bangladeshi staff at the Aga Khan Foundation. One of her students was the Principal Applicant's former husband. It was
through the husband that she met the Principal Applicant and her children. Based on her experience in Bangladesh, Ms. Lowther
states in her affidavit that "it is easy for a girl to be assaulted" in school and that when a young girl is raped, she is blamed for the
violence and considered to have brought shame on the family. She adds that she dealt with this issue in one of the most
prestigious schools in Dhaka when she worked with some female students setting up an animal welfare club. Through these girls,
she found out a number of them had been subjected to harassment and some had been sexually assaulted. The girls she spoke to
refused to report these incidents for fear of the reaction from family, teachers or their friends. She also states that some of the
Canadian-funded projects in Bangladesh supported women who had been subjected to acid attacks, forced into slavery or who
had lost their family and community support because of the shame brought to them as a result of being raped. Ms. Lowther
indicates that she met some survivors and their relatives and that most never bothered to go to the police.

18  In my view, it was unreasonable for the Officer to discount Ms. Lowther's affidavit on the grounds that she was not an expert
in country conditions and that her affidavit was based on personal opinion. Even if her affidavit contained statements of opinion,
these statements were nevertheless based on Ms. Lowther's personal experiences while in Bangladesh. In addition, there was
objective documentary evidence in the record supporting her statements regarding the treatment encountered by women in
Bangladesh.

19  I also find that the Officer has failed to provide a rationale for finding that there is insufficient objective evidence to support
Ms. Lowther's statements regarding her contact with people in Bangladesh. It is not apparent, on the face of the record, how this
finding can be reconciled with the Officer's statement accepting that Ms. Lowther "maintains contact with regular people in
Bangladesh". I would also mention that the Officer inaccurately quoted Ms. Lowther's statement. She states that she is "still in
regular contact with several people in Bangladesh".

20  A review of the Officer's reasons regarding the best interests of the children also demonstrates that certain findings are not
reasonably justified in relation to the evidence on the record.

21  For instance, in assessing the best interests of the children, the Officer acknowledges that if the children are removed from
Canada, returning them to Bangladesh would be detrimental to their education since both the public and private systems are too
expensive for the Principal Applicant. However, the Officer finds that "insufficient objective evidence" was provided to establish
that the Principal Applicant's daughter would be prohibited from pursuing higher education in Bangladesh if she so desired. In
coming to this finding, the Officer repeatedly relies on the fact that the Principal Applicant was able to attend several years of
schooling, including several years of post-secondary studies. In reviewing the Officer's reasons, however, there is no indication
that the Officer considered that the circumstances of the Principal Applicant's daughter would be different from those of the
Principal Applicant when she studied in Bangladesh. The Principal Applicant would be returning to Bangladesh as a single
woman with no male protection, her siblings had disowned her and her family property had been sold.

22  Finally, I also note the Officer's finding that the children have the option of staying in Canada with their father and that the
choice ultimately rests with the family. The evidence on the record does not support this finding. While their father has a valid
employment authorization to work in Canada until 2020, the children are subject to removal like their mother. In fact, their
request for a deferral of removal was refused by an Enforcement Officer, as they were scheduled to be removed from Canada
with their mother in August 2016. The decision that the children remain in Canada does not lie with the family. It belongs to the
immigration authorities. To the extent the Officer's assessment of the best interests of the children is based on this erroneous
assumption, it is unreasonable. This assessment may have carried significant weight in the Officer's overall assessment of the best
interests of the children and in the balance of all H&C considerations. It is not open to me to make that determination or to
substitute my own justification for the outcome (Vavilov at para 96).

23  For all of these reasons, I find that the decision is unreasonable and must be set aside.

24  No questions of general importance were proposed for certification and I agree that none arise.

JUDGMENT in IMM-6376-18

THIS COURT'S JUDGMENT is that:

o 1.The application for judicial review is allowed;



 2.The decision is set aside and the matter is remitted back to a different
Immigration Officer for redetermination;

o 3.No question of general importance is certified.

S.E. ROUSSEL J.

Aborignals rights and Standard of analysis

Coldwater Indian Band v. Canada (Attorney General), [2020]

F.C.J. No. 149
Copy Citation
Federal Court Judgments
Federal Court of Appeal
Vancouver, British Columbia
M. Noël C.J. and J.D.D. Pelletier and J.B. Laskin JJ.A.
Heard : December 16-18, 2019.
Judgment : February 4, 2020.
Dockets: A-324-19 (lead file), A-325-19, A-326-19, A-327-19

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[2020] F.C.J. No. 149 [2020] A.C.F. no 149 2020 FCA 34 2020 CAF 34 30 C.E.L.R. (4th) 217 444 D.L.R. |
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(4th) 298 2020 CarswellNat 215

Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and Aitchelitz, Skowkale, Shxwha:Y
Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose, Applicants, and Attorney General
of Canada, Trans Mountain Pipeline ULC and Trans Mountain Corporation, Respondents, and Attorney
General of Alberta, Attorney General of Saskatchewan and Canadian Energy Regulator, Interveners

(255 paras.)

Case Summary

Aboriginal law — Aboriginal lands — Duties of the Crown — Fair dealing and reconciliation — Consultation and
accommodation — Applications by four Indigenous Bands for judicial review of an Order in Council approving the
Trans Mountain Pipeline Expansion Project on re-consideration decision dismissed — First Order in Council approving
project set aside due to impermissibly under-inclusive nature of environmental assessment that formed part of basis for
the approval and Crown's failure to fulfil its duty to consult with Indigenous peoples — Applications for judicial review
restricted to duty to consult issues — Governor in Council could reasonably conclude that flaws identified in prior order
were adequately remedied by the renewed consultation process.

Applications by four Indigenous Bands for judicial review of an Order in Council approving the Trans Mountain Pipeline
Expansion Project on a re-consideration decision. The first Order in Council approving the project had been set aside due to the
impermissibly under-inclusive nature of the environmental assessment that formed part of the basis for the approval and the
Crown's failure to fulfill its duty to consult with Indigenous peoples. In ordering the re-consideration, the Court did not require
that the consultation process begin anew but required focused consultation to address the shortcomings it identified. The
Governor in Council considered that the consultation efforts made after the re-consideration order adequately remedied the
identified flaws. The applications for judicial review were restricted to the duty to consult issues. The applicants alleged that the
renewed consultation in which they were each involved did not adequately address the shortcomings identified in the prior court
order.
HELD: Applications dismissed.

The Governor in Council could reasonably conclude that the flaws identified in the prior order were adequately remedied by the
renewed consultation process. This Court had no role in deciding whether the project should be approved or not and should not
second-guess the outcome based on its own view of the matter. It was up to the Governor in Council to assess the facts in order to
determine the adequacy of consultation. Post-approval consultation was both relevant and important. The certainty of further
consultations and the certainty of the terms on which they would be conducted were factual elements that the Governor in
Council was entitled to take into account when making its decision. The Governor in Council's decision was reasonable. The
Governor in Council's key justifications for deciding as it did were fully supported by evidence in the record. The evidentiary
record showed a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them,
engaging in two-way communication, and considering and sometimes agreeing to accommodations, all consistent with the
concepts of reconciliation and the honour of the Crown. The applicants' detailed submissions failed because they raised matters
that could have been raised in the earlier judicial review application but were not and, accordingly, the applicants were estopped
from raising them now, they raised matters that were raised before this Court in the earlier application and were dealt with by this
Court, they raised matters outside of the scope of the issues the Leave Order permitted to be raised, they had no merit on their
own terms, what was said to be unaddressed had in fact been adequately addressed by Canada, or they, alone or in combination
with other matters, did not take away from the overall reasonableness of the Governor in Council's decision that the duty to
consult had been adequately met and that, overall, the Project was in the public interest.

The bias argument, having been excluded at the leave stage, is not properly before us. However, we
believe it useful to nevertheless confirm that based on the record before us, there is no evidence that
the Governor in Council's decision was reached by reason of Canada's ownership interest rather than
the Governor in Council's genuine belief that the Project was in the public interest. While the
assessment that was ultimately made may benefit the Crown as owner of the Project, nothing
suggests that the Governor in Council was not guided by the public interest throughout.

 II.The standard of review

o
 A. General considerations

24  After the hearing in this matter, the Supreme Court released its decision in Canada (Minister of
Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], concerning the standard of review that governs
in matters such as this. This Court called for further submissions in writing from the parties
concerning Vavilov. We have received their submissions and have considered them.

25  All are agreed that Vavilov does not bring a material change to the standard of review in this
litigation. However, Vavilov does bring together and clarify a number of principles in a useful way.

26  This is a statutory judicial review, not a statutory appeal. In such circumstances, there is a
presumption that the standard of review is reasonableness (Vavilov, paras. 23-32), and none of the
exceptions to reasonableness review identified in Vavilov apply.

27  In Vavilov, the Supreme Court held that questions as to "the scope of Aboriginal and treaty rights
under s. 35 of the Constitution Act, 1982 [...] require a final and determinate answer from the courts" and,
thus, must be reviewed for correctness (Vavilov, para. 55). But, as mentioned, the scope of the duty to
consult under section 35 is not in issue before us. Thus, reasonableness is the standard of review (see
also TWN 2018, paras. 225-226). That said, we are dealing with a constitutional duty of high
significance to Indigenous peoples and indeed the country as a whole. This is part of the context that
informs the conduct of the reasonableness review.
28  In conducting this review, it is critical that we refrain from forming our own view about the
adequacy of consultation as a basis for upholding or overturning the Governor in Council's decision. In
many ways, that is what the applicants invite us to do. But this would amount to what has now been
recognized as disguised correctness review, an impermissible approach (Vavilov, para. 83) :


o It follows that the focus of reasonableness review must be on the decision actually
made by the decision maker, including both the decision maker's reasoning process
and the outcome. The role of courts in these circumstances is to review, and they are,
at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a
court applying the reasonableness standard does not ask what decision it would have
made in place of that of the administrative decision maker, attempt to ascertain the
"range" of possible conclusions that would have been open to the decision maker,
conduct a de novo analysis or seek to determine the "correct" solution to the problem.
The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA
117, 472 N.R. 171, that, "as reviewing judges, we do not make our own yardstick and
then use that yardstick to measure what the administrator did" : at para. 28; see
also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether
the decision made by the administrative decision maker -- including both the rationale
for the decision and the outcome to which it led -- was unreasonable.

29  Rather, our focus must be on the reasonableness of the Governor in Council's decision, including
the outcome reached and the justification for it. The issue is not whether the Governor in Council
could have or should have come to a different conclusion or whether the consultation process could
have been longer or better. The question to be answered is whether the decision approving the Project
and the justification offered are acceptable and defensible in light of the governing legislation, the
evidence before the Court and the circumstances that bear upon a reasonableness review.

30  There are many such circumstances. The Supreme Court emphasized in Vavilov that reasonableness
is a single standard that must account for context. In its words, "the particular context of a decision
constrains what will be reasonable for an administrative decision maker to decide in a given case"
(Vavilov, para. 89). Thus, reasonableness "takes its colour from the context" and "must be assessed in
the context of the particular type of decision-making involved and all relevant factors" (Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 59; Catalyst Paper Corp. v.
North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, para. 18 [Catalyst]; Wilson v. Atomic Energy of Canada
Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, para. 22). In other words, the circumstances, considerations
and factors in particular cases influence how courts go about assessing the acceptability and
defensibility of administrative decisions (Catalyst, para. 18; Doré v. Barreau du Québec, 2012 SCC
12, [2012] 1 S.C.R. 395, para. 54; Halifax (Regional Municipality) v. Nova Scotia (Human Rights
Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, para. 44).

31  In Vavilov, the Supreme Court emphasized that reasonableness review is to be conducted by

appreciating the decision, the reasons for it, and the context in which it was made. This requires us to
consider the reasons offered in justification of the decision in light of the evidentiary record.


o
 B. Factors that bear on reasonableness review

32  One factor affecting the reasonableness review has already been examined above : the comments
of this Court in TWN 2018 regarding what sort of work was required to address the shortcomings
through a brief and efficient consultation process. The Governor in Council was entitled to take this
assessment into account in determining whether the duty to consult was adequately met. But there
are other factors that affect the reasonableness review.


 o (1)Empowering legislation

33  One important factor to consider is the empowering legislation as set out in sections 54 and 55 of
the NEB Act (Vavilov, para. 108; Canada (Attorney General) v. Boogaard, 2015 FCA 150, 87 Admin. L.R. (5th)
175, para. 36). It sets permissible bounds for the Governor in Council's approval decision.

34  Under section 54, the Governor in Council is the only body empowered to determine whether the
Project should be approved or denied on any basis, including compliance with the duty to consult.
When regard is had to this provision, this Court has no role in deciding whether the Project should be
approved or not and should not second-guess the outcome based on its own view of the matter.

35  Under section 55, challenges to an approval can only be brought by way of judicial review (TWN
2018, paras. 170ff., leave to appeal to SCC refused, 38379 (2 May 2019); Gitxaala Nation v. Canada, 2016
FCA 187, [2016] 4 F.C.R. 418, paras. 92ff., 119ff., leave to appeal to SCC refused, [2017] 1 S.C.R.
xvi [Gitxaala Nation]). Reviewing courts are limited to a reviewing function and are not to pronounce on
the merits (see Raincoast No. 1, paras. 44, 50ff.; Ignace v. Canada (Attorney General), 2019 FCA 239, para.
36; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 259, paras. 13-15).

36  This is particularly so given the nature of the question before us. As mentioned above, the Governor
in Council decided that the duty to consult was adequately fulfilled, i.e., that there had been
meaningful two-way dialogue during the reparative consultation process. This is a fact-
intensive question of mixed fact and law that commands deference. Under section 54, it is up to the
Governor in Council to assess the facts in order to determine the adequacy of consultation. Our role is
restricted to testing the reasonableness of this assessment.


o

 (2)The law concerning the duty to consult

37  The law concerning the duty to consult constrains the Governor in Council under section 54 of
the NEB Act and affects this Court's review of the Governor in Council's decision (Vavilov, paras. 111-
114).

38  The practical requirements of the duty to consult have been compared to administrative
law standards of procedural fairness (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004]
3 S.C.R. 511, para. 41 [Haida Nation]; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3
S.C.R. 103, para. 46 [Beckman]). The cases on point emphasize that consultation need not be perfect
(Haida Nation, para. 62; TWN 2018, paras. 226, 508). It follows that the Governor in Council was entitled
to give the government actors leeway in assessing whether their efforts resulted in compliance with
the duty to consult.

39  The words of this Court in Gitxaala Nation are apposite here (para. 182) :


o In this case, the subjects on which consultation was required were numerous, complex
and dynamic, involving many parties. Sometimes in attempting to fulfil the duty there
can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil
the duty, there will be difficult judgment calls on which reasonable minds will differ.

(See also TWN 2018, paras. 509, 762; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA
212, 297 D.L.R. (4th) 722, para. 54 [Ahousaht First Nation]; Canada v. Long Plain First Nation, 2015 FCA
177, 388 D.L.R. (4th) 209, para. 133 [Long Plain First Nation]; Yellowknives Dene First Nation v. Canada
(Aboriginal Affairs and Northern Development), 2015 FCA 148, 474 N.R. 350, para. 56 [Yellowknives Dene First
Nation].)

40  For example, it has been said that to satisfy the duty, consultation must be "reasonable" (Haida
Nation, paras. 62-63, 68; Gitxaala Nation, paras. 8, 179, 182-185; TWN 2018, paras. 226, 508-
509; Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, para. 31 [Squamish First Nation]).
"Reasonable" consultation means Canada must show that it has considered and addressed the rights
claimed by Indigenous peoples in a meaningful way (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017
SCC 40, [2017] 1 S.C.R. 1069, para. 41 [Clyde River]; Squamish First Nation, para. 37; Haida Nation, para.
42). "Meaningful" is a standard that also appears in the case law (Gitxaala Nation, paras. 179, 181, 231-
234; TWN 2018, paras. 6, 494-501, 762; Haida Nation, paras. 10, 36, 42; Taku River Tlingit First Nation
v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, paras. 2, 29 [Taku
River]; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099,
paras. 32, 44 [Chippewas of the Thames]).

41  So what do the words "reasonable" and "meaningful" mean in this context? The case law is replete
with indicia, such as consultation being more than "blowing off steam" (Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 54 [Mikisew 2005]), the Crown
possessing a state of open-mindedness about accommodation (Gitxaala Nation, para. 233), the Crown
exercising "good faith" (Haida Nation, para. 41; Clyde River, paras. 23-24; Chippewas of the Thames, para.
44), the existence of two- way dialogue (Gitxaala Nation, para. 279), the process being more than "a
process for exchanging and discussing information" (TWN 2018, paras. 500-502), the conducting of
"dialogue [...] that leads to a demonstrably serious consideration of accommodation" (TWN 2018, para.
501) and the Crown "grappl[ing] with the real concerns of the Indigenous applicants so as to explore
possible accommodation of those concerns" (TWN 2018, para. 6). In cases like this where deep
consultation is required, the Supreme Court has suggested the following non- binding indicia (Chippewas
of the Thames, para. 47; Haida Nation, para. 44; Squamish First Nation, para. 36; see also Yellowknives Dene First
Nation, para. 66) :

o *the opportunity to make submissions for consideration;

o *formal participation in the decision-making process;



 *provision of written reasons to show that Indigenous concerns were

considered and to reveal the impact they had on the decision; and dispute
resolution procedures like mediation or administrative regimes with impartial
decision-makers.

42  Examples and indicia in the case law are nothing more than indicators. The Supreme Court, while
providing us with many of these indicia, has made it clear that what will satisfy the duty will vary from
case to case, depending on the circumstances (Haida Nation, para. 45). So where do we get guidance?

43  The Supreme Court has identified the concepts that animate the duty. In its view, the
"controlling question" as to what is "reasonable" or "meaningful" consultation is "what is required to
maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal
peoples with respect to the interests at stake" (Haida Nation, para. 45).

44  The Supreme Court's most recent discussion of the honour of the Crown appears in paragraphs 21
and 22 of the majority reasons in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC
40, [2018] 2 S.C.R. 765 [Mikisew 2018] :


o [The honour of the Crown] recognizes that the tension between the Crown's assertion
of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal
peoples creates a special relationship that requires that the Crown act honourably in
its dealings with Aboriginal peoples (Manitoba Metis, at para. 67; B. Slattery, "Aboriginal
Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 433, at p. 436).

o The underlying purpose of the honour of the Crown is to facilitate the reconciliation of
these interests (Manitoba Metis, at paras. 66-67). One way that it does so is by
promoting negotiation and the just settlement of Aboriginal claims as an alternative to
litigation and judicially imposed outcomes (Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24). This
endeavour of reconciliation is a first principle of Aboriginal law.