Coldwater Indian Band v. Canada

The Federal Court of Appeal released a decision on November 25, 2014 in Coldwater Indian Band v. Canada (Indian Affairs and Northern Development), allowing a cross-appeal to set aside a Federal Court decision and dismiss an application for judicial review. 

This application arises out of a request from Kinder Morgan Canada Inc. to the Minister of Indian Affairs and Northern Development to consent to an assignment of two easements for oil pipelines that would be partially located on the Coldwater Indian Band's reserve lands. Before the Minister could decide on Kinder Morgan's request, Coldwater commenced a judicial review application in which it sought an order prohibiting the Minister from consenting to the assignment and declaring that the Minister was legally bound to follow its instructions with respect to the request for consent to the easement assignments. 

A judge from the Federal Court ruled that the Minister did not have an absolute duty to refuse to consent to the assignments upon being advised that Coldwater did not agree to them. However, he held that the Minister needed to re-examine whether Coldwater's consent was required in the circumstances, particularly with respect to the second of the two easements, and whether it was in both Coldwater and the public's interest not to consent. The Federal Court further held that the Minister should consider whether the second easement has expired due to non-use, and, if so, whether Kinder Morgan needed to re-negotiate with Coldwater for more favourable terms if it required that second easement or a new easement for another pipeline. 

The Federal Court of Appeal, on the other hand, held that Coldwater's judicial review application was premature and there was no basis for either the Federal Court or the Federal Court of Appeal to interfere with the administrative process through which the Minister was required to decide whether or not he should consent to the two assignments being sought by Kinder Morgan. The Court of Appeal held that it was not appropriate for the courts to interfere with an ongoing administrative process until all adequate remedial recourses within that administrative process had been exhausted, unless there were "exceptional circumstances". In this case, the Court of Appeal found no exceptional circumstances and noted that it was possible for the Minister to provide the remedy sought by Coldwater in not providing the assignments.