Norwegian v. Canada (Minister of Environment), 2005 FC 374

Date: 20050315

Docket: T-1686-04

Citation: 2005 FC 374

BETWEEN:

                                                 GRAND CHIEF HERB NORWEGIAN,

                                                     the DEH CHO FIRST NATIONS,

                                                      LLIIDLI KOE FIRST NATION,

                                           FORT SIMPSON METIS NATION LOCAL 59,

                                                       PEHDZEH KI FIRST NATION,

                                                 T'THEK'EHDELI KI FIRST NATION,

                                                      KA'A'GEE TU FIRST NATION,

                                                           SAMBE K'E DENE BAND

                                                                                                                                            Applicants

                                                                           and

                                                HER MAJESTY THE QUEEN IN RIGHT

                                                   OF CANADA as represented by the

                                                  MINISTER OF ENVIRONMENT, the

                                                  ATTORNEY GENERAL OF CANADA

                                     IMPERIAL OIL RESOURCES VENTURES LIMITED,

                                              THE INUVIALUIT REGIONAL COUNCIL,

                                                  THE INUVIALUIT GAME COUNCIL,

                                         THE SAHTU SECRETARIAT INCORPORATED,

                                                   and GWICH'IN TRIBAL COUNCIL

                                                                                                                                         Respondents

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]                These reasons arise out of a motion for a broad range of documents from a tribunal, pursuant to Federal Court Rule 317, the tribunal making the decision at issue being the Minister of the Environment. The documents sought bear on a decision to establish a Joint Review Panel to undertake an environmental impact assessment in connection with a proposed MacKenzie Valley gas pipeline (the "pipeline"). Some 40% of the proposed pipeline would run through the traditional territory of the Applicants, who make up the Deh Cho First Nations.

[2]                The motion is of interest for while the decision under review was made 3 August 2004, the decision has roots in events going perhaps back to about 2000, involving various drafts of agreements, agreements, frameworks by which to proceed and a cooperation plan, culminating in the decision under review. The basic reason for this judicial review proceeding is the view of the Deh Cho First Nations that not only were they not properly consulted, but also they were discriminated against, but that is for another day. I will now turn to some less contentious relevant background.

SOME RELEVANT BACKGROUND

[3]                The MacKenzie Gas Pipeline Project involves, among other things, a natural gas field in the MacKenzie Delta region. This proceeding involves a decision as to the assessment of the environmental impact of the pipeline, running from the MacKenzie Delta, along the MacKenzie River, to the Alberta border, where it will connect with an existing south bound natural gas pipeline system, overall a very substantial project.

[4]                Given the number of environmental assessment regimes applicable in the Northwest Territories the various regulatory agencies and assessment authorities have worked, since about 2000, to harmonize the multiple assessments required into one overall assessment. This harmonization process resulted in a June 2002 Cooperation Plan for the Environmental Impact Assessment and Regulatory Review of the Northern Gas Pipeline Project Through the Northwest Territories (the "Cooperation Plan"). The Cooperation Plan was not in itself a decision, but an outline of how the parties, some 15 entities, would coordinate their response to any future proposal to build a MacKenzie Valley pipeline. There followed a Regulators' Agreement, for coordination of the regulatory review of the MacKenzie Gas Project of 22 April 2004, a Joint Review Panel Agreement of 3 August 2004, and Joint Review Panel Terms of Reference of August 2004. Interspersed among these various documents were drafts of an Agreement for an Environmental Impact Review of the MacKenzie Gas Project, draft number 1 in September 2002, number 2 in December 2003, number 3 in July 2004 and a final version 18 August 2004, accompanied by the final terms of reference for the environmental impact statement for the MacKenzie Gas Project.

[5]                As I have already indicated the Minister of the Environment established the Joint Review Panel, by a decision of 3 August 2004. However the Applicants say they were excluded from the formal part of all of this, although there was a good deal of correspondence between the Grand Chief, from time to time, of the Deh Cho First Nations, on the one hand and the Minister of the Environment and his officials, on the other hand, with the Deh Cho First Nations only becoming aware that the agreement, the subject of this review, on 18 August 2004, when it was released to the public.

[6]                The Deh Cho First Nations, who historically are said to have occupied a territory in the southwestern part of the Northwest Territories, comprising some 210,000 square kilometres of land and water, take exception to the Minister's decision, pursuant to section 40(2) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, to establish the Joint Review Panel to assess the impact of the MacKenzie Gas Project from an environmental point of view. They seek, in addition to injunctive relief, to have the decision to appoint the Joint Review Panel set aside; declaratory relief dealing with alleged failure to meet fiduciary and constitutional duties on the part of the Minister; equal treatment under the law as a jurisdiction pursuant to section 40 of the Canadian Environmental Assessment Act; consideration of and a declaration bearing on the exclusion of the Deh Cho First Nations from the Joint Review Panel; and a declaration as to whether a Joint Review Panel agreement violates their rights under section 15 of the Charter and section 35 of the Constitution.

[7]                The Respondents have produced a number of documents surrounding the 3 August 2004 decision, including a memorandum to the Minister of 28 July 2004 and various so-called talking points and speaking points used by Ministers involved. However none of this material is in the form of a summary, or report, or recommendations to the Minister on which the Minister might base the 3 August 2004 decision to establish the Joint Review Panel.

[8]                While the Applicants do have a substantial assortment of documents they seek the paperwork leading up to and behind the 3 August 2004 decision on the basis that what occurred was an ongoing process in which both the Minister and those representing the Minister took part, giving rise to issues and evidence which must have been in the Minister's mind when he made the decision: this is in contrast to the more usual situation in which there is either a set of well defined investigation material, or summarized material before the Minister, for the Minister to consider in making a decision. In the present situation the Applicants say that the ongoing material generated by the Minister and those who assist him should be produced, as material on which the Minister made his decision. Here I would note that the Applicants do not seek all of the material which was generated over the past five years, but only such drafts, minutes, notes of meetings, briefing notes, drafts of agreements, drafts of correspondence and documents in the possession of the Minister, including the Minister's copies of correspondence received and draft and final news releases: the Applicants do not seek to have the Minister approach others for documents, nor would the Minister, either at law or under what is proposed by the Applicants, need to prepare any new material.

[9]                The Respondents say that what is requested goes beyond what is usually thought of as a tribunal record and amounts not only to a fishing expedition, but also to full discovery of documents. I do not take seriously the suggestion that the Applicants should have commenced an action, rather than a judicial review proceeding, or could convert the present judicial review proceeding to an action and then pursue full discovery of documents, for that is not what anyone wants or needs: what is required is a summary proceeding leading to an expeditious outcome, not protracted litigation which might take years to resolve. However I also take notice of the position of the Applicants, which is quite proper, that modern judicial review may be very complex, dealing with significant questions with broad scope, but that even in such circumstances, including as in the present instance where there has been a prolonged process leading to a decision, the judicial review process is still more expeditious than proceeding by way of an action.

CONSIDERATION

[10]            In a judicial review proceeding Federal Court Rule 317(1) provides and limits the production of documents from a tribunal to "... material relevant to an application that is in the possession of the tribunal whose order is a subject of the application ...", such material not being in the possession of the party making the request. For the most part the case law which has developed, bearing on the production of documents by a tribunal, limits production to documents which were before the tribunal when it made the decision in question. This is the general overall rule, but is subject to some limited exceptions, to which I will refer in due course.

[11]            In the present instance there were submissions to the effect that the test, on the plain reading of Rule 317, is merely whether documents are relevant. However, as I pointed out in Pauktuutit Inuit Women's Association v. Canada (2003) 229 F.T.R. 25 at 27, what is relevant, in the context of Rule 317, must be viewed in the light of the purpose of judicial review, which is not an appeal process:

In essence, judicial review is just that, a review of a tribunal's decision which is based on the evidence which the tribunal had before it: to allow in additional material would not only be irrelevant, but also would transform a judicial review process into an appeal process. (Toft v. Attorney General of Canada, an unreported 18 July 2001 decision in file T-264-01, 2001 FCT 808)

This passage has its roots in a brief unreported 18 May 1994 decision of Mr. Justice Nadon, as he then was, in Asafov v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 713 (T.D.), IMM-7425-93. Mr. Justice Nadon made essentially the same point, after reviewing most of the relevant cases, in 1185740 Ontario Ltd. v. Minister of National Revenue (1998) 150 F.T.R. 60 at 66, in the result requiring production of only those documents that were before the Minister of National Revenue when he made the decision at issue. This was upheld by the Federal Court of Appeal (1999) 247 N.R. 287, at 289:

In Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), this court held that only documents which were actually before the Human Rights Commission in making its decision had to be produced. Other documents relied upon by the investigator did not have to be produced inthe absence of evidence that the investigator had inaccurately summarized them. To much the same effect is the decision of this court in Terminaux Portuaires du Québec Inc. v. Conseil Canadien des relations du travail (1993), 164 N.R. 60; 17 Admin. L.R. (2d) 16 (F.C.A.). I accept and follow these decisions.

This general rule, in effect, precludes full and complete discovery of all documents that may in the Minister's possession. However in the same paragraph Mr. Justice of Appeal Sexton points out one of the several exceptions to the rule, an instance in which there has been an inaccurate summation of underlying material by an investigator issuing a report relied upon by the tribunal. In Canadian Broadcasting Corporation v. Paul (2001) 274 N.R. 47 Mr. Justice of Appeal Strayer, while emphasizing that a tribunal is entitled to rely upon summaries from investigators and indeed the judge involved in judicial review is obliged to have only the record that was before the tribunal, observed that there may be special allegations extending the production of relevant documents, for example allegations bearing on procedure or jurisdiction (see page 66). Similarly in Ontario Association of Architectural Technologists (2002) 291 N.R. 61 Justice of Appeal Evans observed, at page 69, that while judicial review was "... normally conducted on the basis of the material before the administrative decision-maker.", "... affidavit evidence is admitted on issues of procedural fairness and jurisdiction.". These references to procedure and procedural fairness as a means of extending the production of documents could be relevant in the present instance, and logically lead to the Friends of the West Country case, to which I will shortly return.

[12]            Mr. Justice von Finckenstein took a slightly different approach to an extended view of what must be produced on judicial review in Khadr v. Canada, an unreported 28 January 2005 decision, 2005 FC 135. There the applicants, who wished to have consular and diplomatic services extended to Mr. Khadr, a teenager who had then been detained some three years at Guantanamo Bay, sought production of all communications and representations made with regard to a number of specific areas. At issue thus became whether, in the case of an ongoing proceeding, the applicants were entitled to all documents that had been before the Minister up to the day of the hearing. Mr. Justice von Finckenstein began with a reference to the Court of Appeal decision in Pathak v. Canadian Human Rights Tribunal [1995] 2 F.C. 455 at 460:

A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.

Mr. Justice von Finckenstein then observed that the record indicated that there had been discussions as to consular visits, conditions of detention, requirements of due legal process and legal detentions. These were issues that the Minister considered when he wrote various letters and therefore material bearing on those issues was relevant, as being part of the record which was before the Minister and thus produceable under Rule 318.

[13]            All of the exceptions to the general rule, that it is the material which was before the tribunal that is produceable, while fairly narrow, are recognized as existing exceptions, including procedural matters. This leads to Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (1997) 130 F.T.R. 206. In that decision, which has been distinguished in many instances, by limiting it to specific facts, but never over-ruled, Mr. Justice Muldoon relied upon the fact that the Minister had a supervisory function with respect to the assessment at issue, there being no distinct investigation stage, on the one hand and separate decision making stage, on the other hand. Thus, without the distinct two-stage process, Mr. Justice Muldoon permitted a departure from the general law limiting production to what was specifically before the Minister at the time the decision was made. Certainly Friends of the West Country involved legislation which provided no distinct investigation and decision making stages, with the Minister, or other responsible authorities, taking a supervisory role over the whole of the investigation and not exercising the role of a mere passive recipient of a report or recommendations: see Friends of the West Country at page 215. While the present situation does not include a statutory requirement that the Minister take a direct supervisory role in the investigation, on the affidavit evidence before me that appears to have been in fact what occurred, with the present Minister and his predecessor, together with their assistants, taking a direct supervisory role, culminating in the 13 August 2004 decision made by the Minister. In the present situation it is proper that the Applicants have additional material, that is all produceable relevant material produced by or which may have been before the Minister up to the day that the decision was in fact made. This may go back four or five years in order to include material leading to the June 2002 Cooperation Plan. However this should not be looked upon as an impossibly onerous task. Having established that material leading up to the 3 August 2004 decision must be produced, that production is circumscribed by the fact that the Applicants have acknowledged and listed, in a 13 October 2004 affidavit of Grand Chief Herb Norwegian, a large number of documents which they presently have in their possession. This leaves the question of relevance.

[14]            In Pathak v. Canadian Human Rights Commission (supra) at 460 Justice of Appeal Pratt defined a relevant document as one which may affect the decision and therefore relevance must be tested in relation to the grounds of review in the originating document and supporting affidavit, the passage being set out earlier in these reasons. Mr. Justice Hugessen took a similar approach in Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997) 80 C.P.R. (3d) 550 at 555, noting that a document may be formally relevant, in the case of an action, on the basis of issues defined in the pleadings, "... but in an application for judicial review, where there are no pleadings (a notice of motion itself being required to set out only the legal as opposed to the factual grounds for seeking review), the issues are defined by the affidavits which are filed by the parties." (p. 555). He went on to couple formal relevance with legal relevance, an issue on cross-examination. In Merck Frosst Mr. Justice Hugessen would test formal relevance on the basis of affidavits filed "by the parties": in the present instance we have only affidavit material filed by the Applicants. Mr. Justice Hugessen was upheld by the Court of Appeal (2000) 3 C.P.R. (4^th) 286.

[15]            I am satisfied that the material requested by the Applicants falls within the ambit of and is relevant in the light of the 13 October 2004 affidavit of Grand Chief Herb Norwegian.

[16]            The descriptions of the documents which the Applicants seek come close to an overly general request, but do not cross the line by seeking wholesale production. Rather, the documents are requested in relation to various specific steps or phases in the process leading to the 3 August 2004 decision to establish the Joint Review Panel. The descriptions have the certainty necessary so that the Respondents are not left guessing as to what is desired.

[17]            Counsel for the Respondents looks upon the task of assembling all of the documents requested by the Applicants as daunting. However, in Quebec Ports Terminals v. Canada (1993) 17 Admin. L.R. (2d) 16 the Court of Appeal points out at page 21 that such a request is limited both to material in the possession of the tribunal, and to material which already exists when the request is made: the tribunal is not obliged to prepare anything which it does not already have. In Quebec Ports Mr. Justice Décary went on to note, at page 22, that the tribunal need not produce anything which the party requesting the material ought to have in its own material. As a further limitation the Court of Appeal, in Trans Quebec & Maritimes Pipeline v. National Energy Board [1984] 2 F.C. 432 at 442 makes it clear that production of documents by a tribunal is not an opportunity for a fishing expedition and thus production under the rules governing judicial review stops short of the full discovery which would enable the other side to make demand for the whole of the tribunal's file so that it might be searched for grounds for an application. For this reason production is limited, as pointed out in Pathak, to what is relevant under the originating notice of motion and the affidavit in support, or taking the view of Mr. Justice Hugessen, Merck Frosst Canada Inc. (supra), to the issues defined by the affidavits filed by the parties. By this measure there may be a considerable number of documents, but that is a necessary result of a situation in which there is not an investigative phase, followed by a decision making phase, but rather where the Minister and the Minister's assistants supervise the procedure leading to the decision. Here I accept the view of counsel for the Applicants that judicial review, in a modern setting, may involve significant questions of broad scope and that being the case there is no limit on the size of the record, which is governed by the affidavit material. Nor is the production requested too broad. The production requested, set out in the notice of application, is fairly specific. The Applicants request documents in existence at each step taken by the Minister and his representatives leading to the final step, the decision in August of 2004, being only those relevant documents which the Applicants have not declared in their extensive affidavit material.

[18]            To require the Minister or his representatives to approach other entities involved, thus producing documents not already in the files of the Minister and his representatives, goes beyond the scope of Rule 317. Rule 317 requires production of material in the possession of the tribunal, in this instance the Minister and those who represent him. Documents in the possession of others need either be sought nor produced.

[19]            The schedule for the production of the Minister's documents is to be dealt with as a case management matter. Costs of the motion to the Applicants which, if not agreed, to be dealt with in writing. I thank counsel for their on point and manageable submissions in the face of a large amount of material.

(Sgd.) "John A. Hargrave"

    Prothonotary

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1686-04

STYLE OF CAUSE: GRAND CHIEF HERB NORWEGIAN ET AL v. HER MAJESTY THE QUEEN ET AL

PLACE OF HEARING:                                 VANCOUVER, BC

DATE OF HEARING:                                   MARCH 11, 2005

REASONS FOR ORDER : MR. JOHN A. HARGRAVE, PROTHONOTARY

DATED:                     MARCH 15, 2005

APPEARANCES:

Mr. Gregory J. McDade, Q.C.,

Ms. Michelle Ellison                                           FOR APPLICANTS

Mr. Kirk N. Lambrecht, Q.C.,                                      FOR RESPONDENT - HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF CANADA

Mrs. Mary Comeau                                           FOR RESPONDENT - IMPERIAL OIL RESOURCES VENTURE LTD.

Mr. Brian Crane           (by telephone)                 FOR RESPONDENT - THE SAHTU SECRETARIAT INCORPORATED AND GWICH'IN TRIBAL COUNCIL

Mr. Darin Hannaford    (by telephone)                 FOR RESPONDENT - INUVIALUIT REGIONAL COUNCIL AND INUVIALUIT GAME COUNCIL

SOLICITORS OF RECORD:

Ratcliff & Company

Vancouver, BC                                                 FOR APPLICANTS

John H. Simms, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT- HER MAJESTY THE QUEEN AND ATTORNEY GENERAL OF CANADA

Macleod Dixon LLP

Calgary, Alberta                                                FOR RESPONDENT - IMPERIAL OIL RESOURCES VENTURES LTD.

Gowlings, LaFleur, Henderson

Ottawa Ontario                                                 FOR RESPONDENT - THE SAHTU SECRETARIAT INCORPORATED AND GWICH'IN TRIBAL COUNCIL

Miller Thompson

Edmonton, Alberta                                            FOR RESPONDENT - INUVIALUIT REGIONAL COUNCIL AND INUVIALUIT GAME COUNCIL