Date:
20121119
Docket:
T-300-12
Citation:
2012 FC 1336
Ottawa, Ontario,
November 19, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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GITXAALA NATION
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Applicant
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and
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THE MINISTER OF TRANSPORT,
INFRASTRUCTURE, AND COMMUNITIES AND NORTHERN GATEWAY PIPELINES LIMITED
PARTNERSHIP
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application brought by the Gitxaala Nation seeking prerogative relief
against the Minister of Transport, Infrastructure and Communities (Minister)
and the Northern Gateway Pipelines Limited Partnership in connection with the
ongoing National Energy Board (NEB) regulatory review of the Northern Gateway
Pipeline Project (the Gateway Project). Gitxaala contends that the federal
Crown’s duty to consult has been breached because Gitxaala, an Indian
Band within the meaning of the Indian Act, RSC 1985,
c I-5,
was excluded from participating in a federal interdepartmental review of marine
safety factors relevant to the Gateway Project known as a TERMPOL Review or
TRP.
[2]
At
the time of the hearing of this matter in Vancouver, the work of the TRP
Committee had been completed and a report prepared. Gitxaala seeks an Order
quashing the TRP report and directing the Respondent Minister to reopen the
process to allow for a meaningful consultation. Gitxaala frames its
consultation concern in the following passages from its Notice of Application:
The proposed Gateway Project, and in particular its
shipping component, has the potential to adversely affect Gitxaala’s asserted
Section 35 Rights. As such, the Crown has a constitutional duty to consult with
Gitxaala prior to deciding whether to approve the Gateway Project.
Although Gitxaala is participating in the Joint
Review Panel process as an intervenor, this involvement does not fully
discharge the Crown’s consultation obligations towards Gitxaala in respect of
the Gateway Project. The Gateway TRP, and particularly the Report that it will
produce and distribute to the JRP and Responsible Authorities, is a critical
component of the Gateway Project review insofar as the shipping routes are
concerned. The work of the Gateway TRP will not be replicated by the Joint
Review Panel. The JRP and Transport Canada will rely on the Report in deciding
whether to approve the Gateway Project and if so, on what terms.
In order to ensure that consultation with Gitxaala
on the Gateway Project is meaningful and effective, the Crown must consult with
Gitxaala as part of the Gateway TRP and in the development of the Report.
Transport Canada’s exclusion of the Gitxaala Nation from the Gateway TRP to
date constitutes a breach of the Crown’s duty to consult.
[3]
The
Respondents contend that the process for consultation is underway within the
context of the ongoing work of a Joint Review Panel (JRP) established under the
terms of the Canadian Environmental Assessment Act, SC 1992,
c 37,
and as contemplated by an aboriginal consultation framework created after
discussions with First Nations affected by the Gateway Project. In the result,
the Respondents say that Gitxaala and all of the other First Nations affected
by the Gateway Project will have ample opportunity to be heard and accommodated
and it is premature for the Court to interfere at this relatively early stage
of the process.
The
Gateway Project
[4]
The
Northern Gateway Pipeline Limited Partnership (Gateway Partnership) proposes to
build and operate dual oil and condensate pipelines along a 1172 km corridor
running from Bruderheim, Alberta to Kitimat, British Columbia.
[5]
At
Kitimat the Gateway Partnership plans to construct a storage and marine
terminal for the export of oil and the import of condensate to and from marine
tankers. It is estimated that the cost of construction will exceed 5.5 billion
dollars.
[6]
Once
completed, the Gateway Partnership expects that the Gateway Project will
support the export of 30 million tonnes of crude oil and the import of 11
million tonnes of condensate requiring the annual transit of 250 oil tankers.
[7]
There
are two primary shipping routes into Kitimat. The southern intercoastal route
begins at the entrance to Caamano Sound and proceeds in a northerly direction
into Douglas Channel. The Northern intercoastal route enters Principe Channel
at the northern end of Banks Island and intersects the southern route on the
west side of Gil Island. The combined shipping route then proceeds north into
Douglas Channel, at the head of which lies the proposed Kitimat terminal.
The
Gitxaala Nation
[8]
There
is no doubt that the people of Gitxaala stand to be significantly affected if
the Gateway Project goes ahead. Their elected Chief, Elmer Moody, has provided
affidavit evidence describing their interests. That evidence stands
unchallenged.
[9]
The
Gitxaala Nation has 21 Indian Act reserves located throughout a large
archipelago southwest of Prince Rupert. Most of those reserves are immediately
adjacent to the proposed marine shipping routes that will service the western
terminus of the Gateway pipeline at Kitimat (see the map annexed to these Reasons).
[10]
Gitxaala’s
main residential reserve (Lach Klan) is located on Dolphin Island adjacent to the shipping route entrance at the northern end of Principe Channel.
According to Chief Moody, many of the other Gitxaala reserves are occupied at
least seasonally to facilitate the harvesting of a wide variety of marine
resources including halibut, cod, crab, abalone, salmon, seaweed, red snapper,
clams, cockles, sea cucumbers, herring, roe and a variety of marine birds, eggs
and mammals. In addition to providing sustenance, the ability to harvest and
share these traditional food sources is the foundation for many of Gitxaala’s
ancient governance and cultural practices.
[11]
Keith
Lewis is a member of Gitxaala who has lived most of his life in Lach Klan. He
is a member of one of four Gitxaala clans, the Ganhada (Raven) clan.
Mr. Lewis began to fish with his grandfather at the age of seven. Over
the years he has acquired knowledge of Gitxaala traditions and harvesting
practises. His affidavit describes the significance of the marine harvest to
his family and to the Gitxaala people:
16. I have continued to
harvest marine resources into my adult life to the present day. I still rely on
a lot of the knowledge that was passed down to me by my grandfather, my grandmother
and my father.
17. Marine harvesting is
part of my identity as Gitxaala. While some of the technology has changed over
the years, we are harvesting the same species in the same places as Gitxaala
have for countless generations. It is common knowledge among Gitxaala that our
ancestors have been using Gitxaala Territory before any other people; this is
part of our adawx (oral history). Harvesting marine resources throughout
our territory is one of the most important elements of our history and culture;
it is how we survived and thrived as a Nation for so long. I practice our
traditional culture through marine harvesting today for the same reasons that my
grandfather and grandmother and their ancestors did before them. It is our way
of sustaining ourselves and connecting with our history and with the natural
world.
18. Over half of the food
my family of four eats is the food that I harvest. Even though we live in Prince Rupert, we do not eat much food from the store, which can be very expensive and not
as nutritious. My harvest also provides food for four other households. I am
the only son of my family, so I provide food for my grandparents, my parents
and two of my sisters’ families. I also provide some of my harvest to some
ladies in Lach Klan who do not have someone to go out for them.
[12]
Matthew
Hill is a member of the Gitxaala Lasgeek (Eagle) clan. His affidavit contains
a rich personal history spanning more than 50 years of marine harvesting
throughout the traditional Gitxaala territory. His evidence is consistent with
the evidence of Mr. Lewis and Chief Moody.
[13]
Mr. Hill’s
affidavit also contains a fairly detailed critique of the TRP report. Among
other things, he identifies a number of omissions or deficiencies concerning
the locations of at-risk fishing and harvesting grounds. He also identifies
several known navigational hazards that, he claims, were overlooked in the TRP
report. In addition, he is critical of the TRP report’s treatment of the risks
associated with increased tanker traffic in the vicinity of active fishing
grounds. Mr. Hill’s affidavit makes a case for the importance of the
local knowledge of First Nations residents for a full understanding of the
marine risks that the TRP Committee was mandated to study.
[14]
It
is clear from the evidence before the Court that for thousands of years the
Gitxaala Nation has occupied the lands and utilized the marine resources in the
intercoastal area proposed for the transit of marine tankers servicing the
Gateway marine terminal at Kitimat. In the result, the interests of Gitxaala
stand to be significantly affected during the lifetime of the Gateway Project.
They are naturally concerned about the potential pollution risks associated
with the project and about the inherent conflicts that will be created by the
encroachment of oil tankers into their areas of traditional use.
[15]
Both
of the Respondents acknowledge that Gitxaala’s interest in protecting its
traditional territory and practices is worthy of consideration. And both agree
that that interest is of sufficient importance that the Crown’s duty of deep
consultation has been engaged.
The
Regulatory Background
[16]
It
is clear from the record that the Government of Canada has designated the JRP
process as a primary stage for consultation. Because the Governor in Council
(GIC) is the ultimate decision-making authority over the Gateway Project, the
Government of Canada also recognizes that its duty of consultation extends
beyond the work of the JRP so that an end-stage comprehensive consultation with
interested First Nations will be required. The sole issue to be resolved in
this proceeding is whether these steps are sufficiently robust that meaningful
consultation can still occur. Gitxaala argues that it was entitled to an
earlier consultation so that the deficiencies identified in the TRP report
could have been addressed and remedied. According to Gitxaala the TRP report
is so fundamental and influential that no engagement in a later stage of the review and consultation process can overcome the alleged
deficiencies in the TRP Committee’s analysis.
[17]
In
order to fully appreciate the arguments advanced by the parties, it is
important to understand the regulatory processes that have been engaged in
conjunction with the government’s proposed framework for consultation with
First Nations.
The
TRP Process
[18]
According
to the affidavit of Michael Henderson, Regional Director (Pacific Region) for
Transport Canada, the TRP is a non-statutory and voluntary technical review
carried out by a number of federal departments and authorities and other
designated advisors. The mandate of a TRP is described in the 2001 TERMPOL
Code (TRP Code) in the following terms:
The purpose of the TRP is to objectively appraise
operational ship safety, route safety, management and environmental concerns
associated with the location, construction and subsequent operation of a marine
terminal system for the bulk handling of oil, chemicals, liquefied gases or
other cargoes identified by TCMS, or of the designation and subsequent
operation of any transshipment site for these or other substances which may
pose a risk to public safety or the environment. Such an appraisal, using the
procedures and methodologies described in the TRP, enables an
inter-departmental committee to identify potential problems and to recommend appropriate
ameliorative measures.
[19]
According
to the TRP Code, a TRP report is not a substitute for any applicable
legislative requirements. The process is initiated by the project proponent
and it follows a methodology described in the TRP Code. The project proponent
is required to provide surveys, studies and technical data that are responsive
to a number of marine safety considerations including marine traffic, fishing
operations, route analysis, navigability, clearances, ship specifications,
cargo and transshipment systems, ship manoeuvring, anchorage, berthing,
terminal operations and contingency planning. This information is then
analysed and a report is issued.
[20]
The
TRP Code also stipulates that a TRP report is not a statement of government
policy and is non-binding. Instead, the report is said to represent the
judgment of the departmental representatives who participated in its creation.
The recommendatory nature of a TRP report is repeated throughout the TRP Code
including the following passage:
It must be understood, however, that DFO CCG and
TCMS regulatory roles are separate and distinct from their roles in the TRP
which is essentially a data and operational review process. The conclusions and
recommendations contained in a TERMPOL report do not relieve a proponent from
an obligation to fully comply with all applicable legislative and regulatory requirements
promulgated, and as amended from time to time, by the various federal and provincial
statutes and regulations which apply to shipping safety and to the protection
of the environment. These Acts include but are not limited to:
• the Canada Shipping Act;
• the Navigable Waters Protection Act;
• the Arctic Waters Protection Act;
• the Canadian Environmental Protection Act;
• the Canadian Environmental Assessment Act;
• the Transportation of Dangerous Goods Act;
• the Fisheries Act;
• the Oceans Act; and
• the Canada Marine Act.
The
Gateway Project TRP
[21]
The
Gateway Project TRP was initiated in late 2004 and thereafter a TRP Committee
was struck. In addition to federal departmental representatives, several
technical advisors were invited to join the Gateway Project TRP Committee,
including the Haisla First Nation and Kitamaat Village Council, the District of
Kitimat, the British Columbia Coast Pilots, the Chamber of Shipping of British
Columbia and the Council of Marine Carriers. Haisla Nation and Kitamaat
Village Council occupy lands in close proximity to the proposed Gateway marine
terminal.
[22]
According
to Mr. Henderson’s affidavit, the Gateway Partnership submitted its
TERMPOL studies to the TRP Committee in early 2010 and on February 23, 2012,
the Committee issued its report entitled the TERMPOL Review Process Report
on the Enbridge Northern Gateway Project. The Gateway Project TRP
Committee ultimately concluded that there are no technical barriers to the
Gateway Project proposal that cannot be effectively managed.
[23]
The
TRP report has since been submitted to the JRP along with the supporting
evidence. All of this now forms part of the JRP record.
[24]
The
record before me discloses that Gitxaala first communicated its desire to be
included in the TRP process by a letter from its legal counsel to Transport Canada dated July 27, 2011. Gitxaala requested that it be permitted to participate on the
TRP Committee, failing which it should be consulted with respect to its
environmental concerns. This letter went unanswered for almost three months
but on October 12, 2011 the Minister of Transport advised Gitxaala by letter
that its concerns should be addressed within the context of its participation
before the JRP. The Minister’s letter gave the following rationale for the
decision:
The TRP is not a regulatory instrument; its
provisions are not mandatory, and federal regulatory roles are separate and
distinct from their roles in the TRP. As such, the TRP does not replace the
requirements of an environmental assessment process under the Canadian
Environmental Assessment Act or navigation impact assessments under the Navigable
Waters Protection Act.
As you know, marine shipping has been included in
the environmental assessment for the NGP project. The technical studies for the
TRP have been completed and submitted to the Joint Review Panel for its consideration
in making recommendations on the project. As an Intervenor in the ongoing Panel
process, you have the opportunity to make your views known about these
technical studies, including questioning the information therein. The Termpol
Review Committee will also produce a report based on its review of the studies,
and submit this report to the Panel. These documents will be made publicly
available, and can be queried or commented on through the Panel process.
Membership on the Committee is typically limited to
government departments and agencies involved specifically in the proposed
project, or more generally in marine shipping; however, persons or groups with
technical information related to marine transportation can contribute to the
process. In the case of the NGP project, the Haisla Nation was invited to
participate in the Committee as the marine terminal is in close proximity to
Haisla reserve lands. The membership list of’ the Committee is enclosed for your
information.
With respect to your concerns, they are all
appropriate concerns to bring to the Panel’s attention. The Panel is the
primary mechanism for Aboriginal groups to learn about the project and present
their views to the federal government on matters pertaining to the potential
impacts of the project related to traditional use and Aboriginal rights. The
Panel’s mandate includes the assessment of all of the factors described in your
list of concerns (see, in particular the document issued by the Canadian
Environmental Assessment Agency entitled Scope of the Factors — Northern
Gateway Pipeline Project. August, 2009). I would encourage Gitxaala Nation
to bring its concerns forward for the Panel’s consideration.
With respect to the procedural questions listed in
your letter, the TRP is in its final phase, and the Committee is in the process
of preparing its report. Once the report is complete, as stated above, it will
be made available to the public through the Panel, as well as through Transport
Canada’s website. With respect to studies, no additional studies have been
requested; however, the Committee has asked Enbridge to increase the number of
vessels considered in the Quantitative Risk Assessment to account for the
cumulative effects of shipping traffic.
With respect to consultation, the Panel will offer
the opportunity for comments and questions related to all studies and reports
conducted as part of the TRP. Transport Canada would encourage Gitxaala Nation
to forward any questions or comments on the Termpol studies, or the report of
the Committee to the Joint Review Panel when it becomes available, so that they
may be fully considered and accounted for in the review and assessment of the
NGP project.
Counsel for Gitxaala responded to
the Minister by asking when the TRP report would be released and whether that
would occur before the JRP’s final hearings. This letter appears never to have
been answered and it is unclear whether Gitxaala, at that time, accepted or
acquiesced to the Minister’s position. In any event Gitxaala was not invited
to participate in the work of the Gateway Project TRP Committee and it is that
failure that is at the root of this application.
The
JRP Process
[25]
As
noted above the Gateway Project requires federal approval in the form of an
environment assessment under the Canadian Environmental Assessment Act, SC 1992,
c 37,
and a determination under the National Energy Board Act, RSC,
1985, c N-7,
as to whether the project is or will be required by the present and future
public convenience and necessity.
[26]
The
ultimate authority to approve the Gateway Project and to authorize the issuance
of a Certificate of Public Convenience and Necessity rests with the GIC acting
on the advice of the National Energy Board (NEB). The task of assessing these
considerations at first instance has been assigned to the Gateway JRP.
[27]
In
February 2009 the Canadian Environmental Assessment Agency (CEAA) issued a
statement of the government’s approach to First Nations consultation for the
Gateway Project (the Scope of Consultation Statement). That Statement
describes the scope of consultation as follows:
The Government of Canada will take a
whole-of-government approach to Aboriginal consultation; federal departments
will work together in a coordinated manner that is integrated with the
environmental assessment process. The approach for federal Crown consultation
with Aboriginal peoples for major resource projects was created in accordance
with “Aboriginal Consultation and Accommodation: Interim Guidelines for Federal
Officials to Fulfill the Legal Duty to Consult” (INAC/Department of Justice;
February, 2008, http://www.ainc-inac.gc.ca/ai/mr/is/acp/intgui-eng.asp)
For the Northern Gateway Project, the Crown will rely
on the consultation efforts of the proponent and the Joint Review Panel (JRP)
process, to the extent possible, to meet the duty to consult. More
specifically:
•
The
project proponent will contact Aboriginal groups potentially affected by the
project and provide them with information about the project and its potential
impacts. It will document their concerns, accommodate those concerns in the
project planning stage and initial design of the project and include
information on unresolved concerns in its application. The JRP can require the
proponent to gather more information about impacts, Aboriginal concerns and/or
mitigation, if necessary.
•
The
JRP, as a recommendation body under the Canadian Environmental Assessment
Act, will submit an Environmental Assessment Report to the Minister of the
Environment and the relevant federal departments; the response to the report
will be considered by the Governor-in-Council and if approved would
subsequently inform all federal permitting/authorisation decisions.
•
The
JRP, as decision maker under the National Energy Board Act, will
consider all evidence provided by the proponent, Aboriginal groups and other
third parties in order to determine whether the project should be permitted to
proceed and if so, to include mitigation or accommodation where necessary
through imposition of conditions on the project approval.
It is important for Aboriginal groups with concerns
about the project to participate in the JRP process to ensure that their
concerns are considered by the decision-makers responsible for the project.
There is no separate or parallel process to deal with issues within the JRP
mandate.
The JRP is the key assessment and decision-making
body for the project and has a broad mandate under both the National Energy
Board Act and the Canadian Environmental Assessment Act to examine
project-related issues. The JRP will consider and address all project-related
Aboriginal issues and concerns within this mandate. The Canadian Environmental
Assessment Agency (Agency) representing the Crown, will lead the initial
consultation on the JRP Agreement as well as consultation on the Environmental
Assessment Report issued by the JRP. The response to the report will be
considered by the Governor-in-Council and if approved, would subsequently
inform permitting and authorisation decisions by federal authorities. The
Agency will be the contact for the Crown for project-related matters raised by
Aboriginal groups that are outside the mandate of the JRP.
The phases for Crown consultation for the Northern
Gateway Project are summarized below:
Phase I: Preliminary Phase
The Agency will consult on the JRP Agreement and the
Agency and the National Energy Board (NEB) will provide information on their
respective mandates and the JRP process.
Phase II: Pre-Hearing
The Agency and the NEB will continue to provide
information on the JRP process and encourage Aboriginal groups to participate
in the JRP process. The Agency will be the contact for the Crown for project-related
matters raised by Aboriginal groups that are outside the mandate of the JRP.
Phase III: Hearing
Aboriginal groups and federal agencies with
regulatory responsibilities in the project will participate in the hearing. The
Agency will be the contact for the Crown for project-related matters raised by
Aboriginal groups that are outside the mandate of the JRP.
Phase IV: Report/Decision
Crown consultation will be carried out on the JRP
Environmental Assessment Report prior to consideration of the response by
Governor-in-Council. The Agency will be the contact for the Crown for
project-related matters raised by Aboriginal groups that are outside the
mandate of the JRP.
Under the National Energy Board Act, the JRP
will take into consideration all relevant Aboriginal issues and concerns
brought forward in the hearing process and consider them in its decision
making. If the project is approved, the JRP may impose conditions on the
project to mitigate any potential adverse impacts.
Phase V: Regulatory/Permitting
If it is determined that additional consultation
about the project is required on permits or authorizations which other federal departments
are requested to issue, the Crown will appoint a federal department to lead any
consultations that may be required after the environmental assessment phase is
complete.
[28]
In
August 2009 the CEAA issued a Scope of Factors document.
That document offered guidance concerning the marine based environmental
effects of the Gateway Project with specific reference to Aboriginal Rights and
Interests:
Further to the general guidance provided in Chapter
3 of the Filing Manual regarding consultation and Table A-5 Filing Requirements
for Socio-Economic Elements, the proponent will identify the lands, waters and
resources of specific social, economic, archaeological, cultural or heritage
value to Aboriginal groups, including Métis, that assert Aboriginal rights,
including title and treaty rights or in relation to which Aboriginal rights,
including title and treaty rights have been established and that may be
affected by project components.
The proponent must identify traditional activities,
including activities for food collection, social, ceremonial and other cultural
purposes, in relation to such lands, waters and resources. The focus of this
discussion shall be on the current use of lands, waters and resources for
traditional purposes, and the sites and features of the landscape associated
with such uses. The proponent shall provide information that would include a description
of dependence on country foods and harvesting for other purposes, including harvesting of plants for
medicinal purposes. The proponent will identify any effects on Aboriginal rights and interests,
including treaty rights and current land uses for traditional purposes, and outline the
proposed methods to manage and mitigate any such effects to an acceptable level. The
proponent will include a discussion of the archaeological findings in the study area that
are of particular interest to Aboriginal peoples. In particular, the proponent will
describe the findings of any preliminary archaeological field reconnaissance work completed as
a component of a traditional use study.
Aboriginal
peoples that may be affected by the Project, including the marine components, will be identified.
Potentially affected Aboriginal peoples include those where any component of the
proposed project will be located within their traditional territory.
The
geographic limits of the analysis undertaken to address considerations of
Aboriginal peoples will be provided,
supported with maps as required. The study area will take into consideration the traditional
territories of each Aboriginal group, relative to the proposed footprint of the marine project
components.
A
summary of the completed, ongoing and proposed consultation with Aboriginal peoples will be provided. The
proponent will provide a detailed description of the consultations, indicating the
concerns raised, how those concerns were addressed, and any outstanding concerns.
[29]
In
October 2009 interested federal departments and agencies (including the NEB and the Department of Indian and Northern Affairs) entered into a Project Agreement to
facilitate all aspects of the federal review process including the discharge of
the Crown’s duty to consult with Aboriginal groups. That Agreement
incorporated the CEAA’s Scope of Consultation Statement and it identified the
roles and responsibilities of a variety of federal agencies and departments in
fulfilling the Crown’s consultation obligation.
[30]
On
November 5, 2009 the CEAA wrote to the First Nations affected by the Gateway
Project inviting their participation in the JRP process. This communication
went to the Chiefs of the First Nations’ bands affected by the Gateway Project
including Chief Moody on behalf of Gitxaala. This letter also included a
proposal for funding.
[31]
In
Hearing Order OH-4-2011 issued on May 5, 2011 the JRP expressly recognized its
role in the process of federal consultation with Aboriginal groups.
[32]
The
record before me discloses that Gitxaala has been fully engaged in the JRP
process as a formal Intervenor and to that end has, as of April 2012, received
federal funding of $238,500.00. As an Intervenor, Gitxaala has the right
to challenge the evidence submitted by other parties and to present its own
case in favour of the preservation of its interests and rights. In mounting
its case in opposition to many aspects of the Gateway Project, Gitxaala has
commissioned or elicited evidence bearing on a number of the issues reviewed by
the TRP Committee. These include concerns about pollution, emergency response,
conflict with tanker traffic, noise and anchorages. Many other interested
First Nations have been similarly engaged in the JRP process. Collectively
those groups and their supporters represent a substantial force that cannot
easily be ignored.
[33]
The
JRP process is ongoing with final hearings scheduled to commence in April
2013.
Issues
[34]
Gitxaala
maintains that the process of consultation is deficient because of the Crown’s
failure to invite its participation in the work of the Gateway TRP Committee.
Gitxaala also asserts that this deficiency occurred after the Crown’s duty to
consult had been engaged and that the problem cannot be remedied by its
subsequent engagement in the JRP process or later when an overarching
consultation with the federal government is planned. According to Gitxaala the
solution is to reopen the TRP process to allow it to make submissions.
Gitxaala acknowledges that such an intervention would not necessarily lead to
changes to the TRP report but it argues that it is legally entitled to make its
case before the TRP Committee.
Analysis
[35]
As
noted above, the Respondents acknowledge that the Gateway Project has engaged
the Crown’s duty of deep consultation with Gitxaala and with the other First
Nations whose interests stand to be similarly affected. What remains in
contention is whether the proposed framework for consultation is legally
sufficient.
[36]
Relying
on the Federal Court of Appeal decision in Ahousaht Indian Band v Canada
(Minister of Fisheries and Oceans), 2008 FCA 212, [2008] FCJ no 946,
Gitxaala argues that the standard of review for the existence and scope of the
duty to consult is a question of law reviewable on a threshold standard of
correctness. This point is drawn from the decision at para 34:
34 …the determination of the existence and
extent of the duty to consult or accommodate is a question of law and, hence,
reviewable on a standard of correctness. However, when the Crown has correctly
determined that question, its decision will be set aside only if the process of
consultation and accommodation is unreasonable…
[37]
The
Respondents maintain that the appropriate standard of review is reasonableness
and they rely upon the following passage from the Supreme Court of Canada
decision in Haida Nation v British Columbia (Minister of Forests), 2004
SCC 73 at para 62, [2004] 3 S.C.R. 511 [Haida Nation]:
62 The process itself would likely fall to be
examined on a standard of reasonableness. Perfect satisfaction is not required;
the question is whether the regulatory scheme or government action "viewed
as a whole, accommodates the collective aboriginal right in question": Gladstone , supra, at para. 170. What is required is not perfection, but
reasonableness…
[38]
Interestingly
all of the parties maintain that whatever the standard of review may be, the
outcome is unchanged. For Gitxaala the Crown’s conduct was both incorrect in
law and unreasonable. The Respondents assert the opposite.
[39]
It
seems to me that the authorities stand for the proposition that if the question
for determination is whether a duty to consult has arisen, it is, as a point of
law, reviewable for correctness. But if the question is whether the framework
established for consultation is sufficient, (ie meaningful), it must be
assessed on the reasonableness standard. Here the Respondents concede that a
duty to consult was engaged at least as early as the request by the Gateway
Partnership for federal Crown assessment and approval for the project. The
only issue that is left for determination is, therefore, whether the
consultation framework proposed by the Crown and presently being followed is a
sufficient platform for consultation. That is a question of mixed fact and law
reviewable on the standard of reasonableness: see Yellowknives Dene First
Nation v Canada, 2010 FC 1139 at paras 65-68, [2010] FCJ no 1412.
[40]
Gitxaala’s
argument is based on the recognized principle that meaningful consultation must
be timely consultation. The duty to consult may, therefore, arise in advance
of preliminary decisions if a clear momentum to move forward would arise. This
point was made by Justice Anne Mactavish in Sambaa K’e Dene Band v
Duncan, 2012 FC 204 at paras 164-166, [2012] FCJ no 216.
164 I would start by noting that the duty to
consult extends to strategic, higher level decisions that may have an impact on
Aboriginal claims and rights, even if that impact on the disputed lands or
resources may not be immediate: Rio Tinto, above at para. 44.
165 If it is to be meaningful, consultation
cannot be postponed until the last and final point in a series of decisions.
Once important preliminary decisions have been made there may well be "a
clear momentum" to move forward with a particular course of action: see Squamish
Indian Band v. British Columbia (Minister of Sustainable Resource Management),
2004 BCSC 1320, 34 B.C.L.R. (4th) 280 at para. 75. Such a momentum may develop
even if the preliminary decisions are not legally binding on the parties.
166 Indeed, the case law shows that the
non-binding nature of preliminary decisions does not necessarily mean that
there can be no duty to consult. For example, in Dene Tha' First Nation v.
Canada (Minister of Environment), 2006 FC 1354, 303 F.T.R. 106, negotiations
leading to a non-binding Cooperation Plan nonetheless triggered a duty to
consult that fell at the high end of the consultation spectrum.
[41]
Justice
Michael Phelan came to the same conclusion in Dene Tha’ First Nation v
Canada (Minister of Environment), 2006 FC 1354, [2006] FCJ no 1677, where
he observed that the duty to consult can apply to strategic planning decisions
that may affect Aboriginal rights: also see Haida Nation, above,
at para 76.
[42]
In
Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010]
2 SCR 650 the Supreme Court of Canada described in detail the types of
decisions or processes that can trigger a duty to consult. At the heart of
this question is whether the conduct at issue has the potential to adversely
affect Aboriginal claims or rights:
42 Second, for a duty to consult to arise,
there must be Crown conduct or a Crown decision that [page 673] engages a
potential Aboriginal right. What is required is conduct that may adversely
impact on the claim or right in question.
43 This raises the question of what
government action engages the duty to consult. It has been held that such
action is not confined to government exercise of statutory powers: Huu-Ay-Aht
First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697,
[2005] 3 C.N.L.R. 74, at paras. 94 and 104; Wii'litswx v. British Columbia
(Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315, at paras.
11-15. This accords with the generous, purposive approach that must be brought
to the duty to consult.
44
Further,
government action is not confined to decisions or conduct which have an
immediate impact on lands and resources. A potential for adverse impact
suffices. Thus, the duty to consult extends to "strategic, higher level
decisions" that may have an impact on Aboriginal claims and rights
(Woodward, at p. 5-41 (emphasis omitted)). Examples include the transfer of
tree licences which would have permitted the cutting of old-growth forest (Haida
Nation); the approval of a multi-year forest management plan for a large
geographic area (Klahoose First Nation v. Sunshine Coast Forest District
(District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110); the
establishment of a review process for a major gas pipeline (Dene Tha' First
Nation v. Canada (Minister of Environment), 2006 FC 1354, [2007] 1 C.N.L.R.
1, aff'd 2008 FCA 20, 35 C.E.L.R. (3d) 1); and the conduct of a comprehensive
inquiry to determine a province's infrastructure and capacity needs for
electricity transmission (An Inquiry into British Columbia's Electricity
Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re,
2009 CarswellBC 3637 (B.C.U.C.)). We leave for another day the question of
whether government conduct includes legislative action: see R. v. Lefthand,
2007 ABCA 206, 77 Alta. L.R. (4th) 203, at paras. 37-40.
…
47 Adverse impacts extend to any effect that
may prejudice a pending Aboriginal claim or right. Often the adverse effects
are physical in nature. However, as discussed in connection with what
constitutes Crown conduct, high-level management decisions or structural
changes to the resource's management may also adversely affect Aboriginal
claims or rights even if these decisions have no "immediate impact on
lands and resources": Woodward, at p. 5-41. This is because such structural
changes to the resources management may set the stage for further decisions
that will have a direct adverse impact on land and resources. For
example, [page 675] a contract that transfers power over a resource from the
Crown to a private party may remove or reduce the Crown's power to ensure that
the resource is developed in a way that respects Aboriginal interests in
accordance with the honour of the Crown. The Aboriginal people would thus
effectively lose or find diminished their constitutional right to have their
interests considered in development decisions. This is an adverse impact: see Haida
Nation, at paras. 72-73.
What is also noteworthy about this
decision is the recognition that past breaches of the duty to consult “may be
remedied in various ways”.
[43]
Gitxaala
asserts that the TRP report has “set the stage” for the federal Crown’s
approval decision over the Gateway Project and for the adoption of any
mitigation measures that may ultimately be imposed by the JRP. Because the TRP
Committee concluded that the inherent risks of the project can be managed a
“clear momentum” was created. Gitxaala says that it has lost the opportunity
to contribute to this highly influential process and, as a consequence, the TRP
Committee made several mistakes that are not effectively open to correction.
This failure to include Gitxaala is also described as “disrespectful” and not
in keeping with the honour of the Crown.
[44]
There
are a number of fundamental weaknesses to Gitxaala’s claim to relief.
[45]
It
is true that the Crown’s duty to consult deeply in connection with the Gateway
Project arose at least as soon as the process of review was initiated and,
therefore, in advance of the work of the TRP Committee.
[46]
The
question, though, is whether that consultation duty gave rise to a legal
obligation on the part of the Crown to invite Gitxaala to participate in the
work of the TRP Committee, or whether the duty can be fulfilled by the
recognized opportunities available to Gitxaala to fully engage in the JRP process,
and later, directly with the federal Crown.
[47]
The
Crown’s duty of consultation is required to be timely and meaningful and it
must contribute to the ultimate goal of reconciliation. The process need not
be perfect and it is not the subject of a strict template or protocol.
[48]
Gitxaala
has identified a number of alleged deficiencies or misconceptions in the TRP
report that it says it would have been able to correct had it been consulted.
[49]
The
suggestion that it is now too late in the process to have these concerns
addressed requires the Court to assume that the JRP will not keep an open mind
about errors or deficiencies in the TRP report. In other words, Gitxaala’s
argument is based on an assumption that the JRP will not fulfill its legal
obligations and that Gitxaala’s representations, however valid, will fall on
deaf ears.
[50]
In
fact, the record does not support the drawing of such an inference. The Crown
has, from the beginning, acknowledged its consultation obligation to all of the
Aboriginal groups that may be affected by the Gateway Project including
Gitxaala. It also consulted the affected First Nations before it established
the consultation framework that it is now relies upon to fulfill its
consultation obligations. Gitxaala and other First Nations’ participants have
been the beneficiaries of substantial federal funding to ensure their effective
intervention and many of them, including Gitxaala, have participated in a
significant way in the JRP process. The Crown has also committed to a final
consultation with Aboriginal groups in response to the JRP report and in
advance of a GIC decision with respect to the issuance of a Certificate of
Public Convenience and Necessity.
[51]
It
seems to me that the JRP process is sufficiently robust that any weaknesses in
the TRP report can be addressed by Gitxaala and, where appropriate,
accommodated by the JRP or later by the Government of Canada. I do not accept
Gitxaala’s argument that the TRP findings and recommendations are so compelling
and indispensable to the final outcome that any challenge to them cannot be
effectively mounted. This is not a case where too much momentum has built up
around the issues considered by the TRP. Nor is the TRP report a high level
strategic decision of the sort that may have an impact on Gitxaala’s long-term
interests. The TRP findings and recommendations are based on evidence
submitted primarily by the Gateway Partnership and they are open to being
challenged and contradicted by other evidence or under cross-examination. The
weight attributed to the TRP findings and recommendations is expressly limited
by the TRP Code and if mistakes or omissions have occurred Gitxaala is well
placed to point them out and to demand corrections. The TRP report is,
after-all, mainly a technical analysis based on objectively verifiable data.
If the TRP Committee has ignored or overlooked material evidence, it should not
be difficult to effectively impeach its findings.
[52]
In
the end Gitxaala’s position seems to be that the environmental risks of the
Gateway Project cannot be effectively managed when measured against the
profound losses that would arise from a major marine oil spill. That
essentially qualitative question lies at the very heart of the JRP mandate and
it is unlikely to be determined on the basis of Gitxaala’s concerns about the
type of technical errors that it has identified in the TRP report.
[53]
The
process that has been followed may not be perfect, and one can question the
wisdom of declining to open up the TRP process when asked by Gitxaala, but it
does represent a reasonable way to address First Nations’ concerns.
[54]
I
also agree with the Respondents that it is premature for the Court to intervene
in this process before it has reached a conclusion. As noted above, Gitxaala’s
argument is based on an assumption that the JRP will not listen to its concerns
and will remain unmoved by any evidence that it receives in contradiction to
the findings of the TRP Committee, however compelling that evidence might be.
It seems to me, however, that the Court should not act on the basis of
assumptions. There is nothing before me to suggest that the JRP will not
listen fairly to Gitxaala’s concerns, weigh all of the available evidence and
come to its own conclusions. If it does not act fairly or if the Crown
ultimately fails to fulfill its overarching duty to consult with affected First
Nations, including Gitxaala, the Court can intervene. And even if there was a
breach of the duty to consult with Gitxaala in the context of the TRP review,
there is no basis for the Court to conclude that the breach cannot be remedied
by the JRP or later by the federal Crown. As the Supreme Court of Canada noted
in Haida Nation, above, there are a variety of remedies available for a
failure to consult not the least of which is the opportunity at later stages in
the process to engage in meaningful dialogue and, where necessary, to
accommodate First Nations concerns. The effective end-point in the process of
consultation has not been reached and there is no way of knowing today how
effective First Nations will be in achieving their desired outcome. Gitxaala’s
additional concern that the Government of Canada’s commitment to a final
overarching consultation is too constrained to be meaningful remains to be seen.
If the process proves to be deficient or perfunctory, Gitxaala and other
affected First Nations will have the opportunity to be heard again.
Conclusion
[55]
For
the foregoing reasons, this application is dismissed. Having regard to the
position of the parties, there will be no Order for costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed.
"R.L.
Barnes"
Annex A
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