Date: 20090512
Dockets: T-225-08
T-921-08
T-925-08
Citation: 2009 FC 484
Ottawa, Ontario, May 12,
2009
PRESENT: The Honourable Mr. Justice Barnes
Docket: T-225-08
BETWEEN:
BROKENHEAD OJIBWAY
NATION, LONG PLAIN FIRST NATION,
SWAN LAKE FIRST
NATION, FORT ALEXANDER FIRST NATION, also known as “SAGKEENG FIRST NATION”, ROSEAU
RIVER ANISHINABE FIRST NATION, PEGUIS FIRST NATION AND SANDY BAY
FIRST NATION, known collectively as the TREATY ONE FIRST NATIONS
Applicants
and
THE ATTORNEY
GENERAL OF CANADA,
THE NATIONAL
ENERGY BOARD
and
TRANSCANADA
KEYSTONE PIPELINE GP LTD.
Respondents
Docket:
T-921-08
BETWEEN:
BROKENHEAD OJIBWAY
NATION, LONG PLAIN FIRST NATION,
SWAN LAKE FIRST
NATION, FORT ALEXANDER FIRST NATION, also known as “SAGKEENG FIRST NATION”,
ROSEAU RIVER ANISHINABE FIRST NATION, PEGUIS FIRST NATION AND SANDY
BAY FIRST NATION, known collectively as the TREATY ONE FIRST NATIONS
Applicants
and
THE ATTORNEY
GENERAL OF CANADA,
THE NATIONAL
ENERGY BOARD
and
ENBRIDGE PIPELINES
INC.
Respondents
T-925-08
BETWEEN:
BROKENHEAD OJIBWAY
NATION, LONG PLAIN FIRST NATION,
SWAN LAKE FIRST
NATION, FORT ALEXANDER FIRST NATION, also known as “SAGKEENG FIRST NATION”, ROSEAU
RIVER ANISHINABE FIRST NATION, PEGUIS FIRST NATION AND SANDY BAY
FIRST NATION, known collectively as the TREATY ONE FIRST NATIONS
Applicants
and
THE ATTORNEY
GENERAL OF CANADA,
THE NATIONAL
ENERGY BOARD
and
ENBRIDGE PIPELINES
INC.
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicants are the seven First Nations who are the
successors to those Ojibway First Nations who entered into what is known as
Treaty One with the federal Crown on August 3, 1871.
They are today organized collectively as the Treaty One First Nations and they
assert treaty, treaty-protected inherent rights and indigenous cultural rights
over a wide expanse of land in southern Manitoba. By
these applications the Treaty One First Nations seek declaratory and other
prerogative relief against the Respondents in connection with three decisions
of the Governor in Council (GIC) to approve the issuance by the National Energy
Board (NEB) of Certificates of Public Convenience and Necessity for the
construction respectively of the Keystone Pipeline Project, the Southern Lights
Pipeline Project and the Alberta Clipper Pipeline Expansion Project
(collectively, “the Pipeline Projects”). All of the Pipeline Projects involve
the use or taking up of land in southern Manitoba for pipeline
construction by the corporate Respondents. Because the material facts and the
legal principles that apply are the same for all three of the decisions under
review, it is appropriate to issue a single set of reasons.
I. Regulatory
Background
The Keystone
Pipeline Project
[2]
On
December 12, 2006 TransCanada Keystone Pipeline GP Ltd. (Keystone) applied to the
NEB for
approvals related to the construction and operation of the Keystone Pipeline
Project (the Keystone Project).
[3]
The
Keystone Project consists of a 1235 kilometer pipeline running from Hardisty, Alberta to a
location near Haskett,
Manitoba
on the Canada-United States border. In Manitoba all new
pipeline construction is on privately owned land with the balance of 258 kilometers
running over existing rights-of-way (including 4 kilometers on leased Crown
land and 2 kilometers on unoccupied Crown land). The width of the permanent
easement in Manitoba is 20 metres
and the pipeline is buried.
[4]
During
its hearings, the NEB considered submissions from Standing Buffalo
First Nation near Fort Qu’Appelle, Saskatchewan and from five First Nations
in southern Manitoba known
collectively as the Dakota Nations of Manitoba. Keystone also engaged a number
of Aboriginal communities located within 50 kilometers of the pipeline
right-of-way including Long Plain First Nation, Swan Lake First Nation and the
Roseau River Anishinabe First Nation.
[5]
In
its Reasons for Decision dated September 6, 2007 the NEB approved the
Keystone Project subject to conditions. Included in those reasons are the
following findings concerning project impacts on Aboriginal peoples:
Although discussions with Standing
Buffalo and the Dakota Nations of Manitoba began somewhat later than they could
have, overall, the Board is satisfied that Keystone meaningfully engaged
Aboriginal groups potentially impacted by the Project. Aboriginal groups were
provided with details of the Project as well as an opportunity to express their
concerns to Keystone regarding Project impacts. Keystone considered the concerns
and made Project modifications where appropriate. Keystone also worked within
established agreements which TransCanada had with Aboriginal groups in the area
of the Project and persisted in its attempts to engage certain Aboriginal
groups. The Board is also satisfied that Keystone has committed to ongoing
consultation through TransCanada.
The evidence before the Board is that
TransCanada, on behalf of Keystone, was not aware that Standing Buffalo and the
Dakota Nations of Manitoba had asserted claims to land in the Project area.
The Board is of the view that, since TransCanada has a long history of working
in the area of the Keystone Project, it should have known or could have done
more due diligence to determine claims that may exist in the area of the
Keystone Project. The Board acknowledges that as soon as Keystone became aware
that Standing Buffalo and the Dakota Nations of Manitoba had an interest in the
Project area, it did take action and initiated consultation activities. The
Board further notes that consultation with Carry the Kettle and Treaty 4 was
based upon TransCanada’s established protocol agreements and that Keystone is
willing to establish similar agreements and work plans with other Aboriginal
groups, including Standing Buffalo and the Dakota Nations of Manitoba.
Once an application is filed, all
interested parties, including Aboriginal persons, have the opportunity to
participate in the Board’s processes to make their views known so they can be
factored into the decision-making. With respect to the Keystone Project, the
Board notes that Standing Buffalo and the Dakota Nations of Manitoba took the
opportunity to participate in the proceeding and the Board undertook efforts to
facilitate their application. The Board agreed to late filings by Standing
Buffalo and the Elders had an opportunity to provide oral testimony in their
own language at the hearing. In addition, the Board held two hearing days in
Regina to facilitate the participation of Standing Buffalo and was prepared to
consider hearing time in Winnipeg for the benefit of the Dakota
Nations of Manitoba. The Board notes it undertook to ensure it understood the
concerns of Standing Buffalo by hearing the testimony of the Elders, making an
Information Request and asking questions at the hearing.
The Board is satisfied that Standing
Buffalo and the Dakota Nations of Manitoba were provided with an opportunity to
participate fully in its process and to bring to the Board’s attention all
their concerns. The hearing process provided all parties with a forum in which
they could receive further information, were able to question and challenge the
evidence put forward by the parties, and present their own views and concerns
with respect to the Keystone Project. Standing Buffalo and the Dakota Nations of Manitoba had
the opportunity to present evidence, including any evidence of potential
infringement the Project could have on their rights and interests. The Dakota
Nations of Manitoba did not provide evidence at the hearing.
Standing Buffalo filed affidavit evidence and gave oral
evidence at the hearing, which was carefully considered by the Board in the
decision-making process. Standing Buffalo
also suggested that the Project would further limit the Crown lands that would
be available to meet the terms of its flood compensation agreement and any
Treaty claim. In the Board’s view, the evidence on this point is too
speculative to warrant the Board’s consideration of it as an impact given there
are Crown lands available for selection and private lands available for purchase
within the traditional territory claimed by Standing Buffalo.
It is not within the jurisdiction of the
Board to deal with land claim matters. Accordingly, to the extent that the
evidence provided by Standing Buffalo relates to its asserted land claim rather
than the effects of this particular Project on its interests, it is of limited
probative value to the consideration of the application before the Board.
Standing Buffalo presented evidence of a general nature
as to the existence of sacred sites along the existing and proposed RoW. The
Board notes Keystone’s commitment to discuss with Standing Buffalo the
potential for the Project to impact sacred sites, develop a work plan and
incorporate mitigation to address specific impacts to sacred sites into its
Environment Protection Plan. The Board would encourage Standing Buffalo to
bring to the attention of TransCanada its concerns with respect to impacts to
sacred sites from existing projects and to involve their Elders in these
discussions.
The Board notes that almost all the lands
required for the Project are previously disturbed, are generally privately
owned and are used primarily for ranching and agricultural purposes. Project
impacts are therefore expected to be minimal and the Board is satisfied that
potential impacts identified by Standing Buffalo which can be considered in
respect of this application will be appropriately mitigated.
With respect to the request by the Dakota
Nations of Manitoba for additional conditions, the Board notes that Keystone
and the Dakota Nations of Manitoba have initiated consultations and that both
parties have committed to continue these discussions. In addition, the Board
notes Keystone’s commitment to address concerns that are raised through all its
ongoing consultation activities and its interest in developing agreements and
work plans with Aboriginal groups in the area of the Project. The Board
strongly supports the development of such arrangements and encourages project
proponents to build relationships with Aboriginal groups with interests in the
area of their projects. Given the commitments both parties have made to
ongoing dialogue, the Board does not see a need to impose the conditions as
outlined.
[6]
On
the recommendation of the NEB the GIC issued Order in Council No. P.C.
2007-1786 dated November 22, 2007 approving the issuance of a Certificate of
Public Convenience and Necessity authorizing the construction and operation of
the Keystone Project. This is the decision which is the subject of the Applicants’
claim for relief in T-225-08.
The Southern
Lights Pipeline Project and the Alberta Clipper
Pipeline Expansion Project
[7]
In
March 2007 and May 2007 respectively, Enbridge applied to the NEB for approval
of the Southern Lights Pipeline Project (Southern Lights Project) and the
Alberta Clipper Pipeline Expansion Project (Alberta Clipper Project). These
two projects are related. The Alberta Clipper Project consists of 1078 kilometers
of new oil pipeline beginning at Hardisty, Alberta and ending at
the Canada-United States border near Gretna, Manitoba.
[8]
The
Southern Lights Project uses the same corridor as the Alberta Clipper Project.
Both are constructed within or contiguous to existing pipeline rights-of-way which
run almost entirely over private and previously disturbed land.
[9]
The
record discloses that Enbridge consulted widely with interested Aboriginal
communities about their project concerns. This included communities located
within an 80-kilometer radius of the pipeline right-of-way and, where other interest
was expressed, beyond that limit. There were discussions with Long Plain First
Nation, Swan Lake First Nation, Roseau River Anishinabe First Nation and
collectively with the Treaty One First Nations. Enbridge also provided funding
to the Treaty One First Nations to facilitate the consultation process.
[10]
Furthermore,
the NEB received
representations from interested Aboriginal parties during its hearings. This
included discussions with Standing Buffalo First Nation, the Dakota Nations of
Manitoba, Roseau River Anishinabe First Nation and Peepeekisis First Nation.
Among other concerns, Standing Buffalo raised the issue of unresolved land
claims which the NEB characterized as follows:
Chief Redman stated in his written evidence
that Standing Buffalo has been involved in extensive meetings with the
Government of Canada and the Office of the Treaty Commissioner regarding
outstanding issues concerning unextinguished Aboriginal title and governance
rights of the Dakota/Lakota. Chief Redman also stated that there have been 70
meetings and yet the Government of Canada has not acknowledged its lawful
obligation and continues to discriminate against Standing Buffalo regarding its
lawful obligations concerning Aboriginal title, sovereign rights and allyship
status by failing to resolve these outstanding issues.
Despite sending a number of letters to
the Government of Canada “regarding the discussions with the Government of
Canada concerning the Board interventions and how they relate to outstanding Dakota/Lakota
issues,” Chief Redman stated that he has received no response.
Chief Redman alleges the consultation
listed in the Applicants’ evidence relates to the Alida to Cromer Capacity
Expansion hearing and the Applicants and Canada have failed to consult Standing Buffalo
in breach of lawful obligation to the First Nation. He stated that the route
of the pipeline is through traditional territories of Standing Buffalo and
suggested that the Project would further limit the Crown lands that would be available
to meet the terms of its flood compensation agreement and any Treaty claim.
Standing Buffalo also presented evidence of a
general nature as to the existence of sacred sites along the existing and
proposed RoW for the Project.
[11]
The
NEB’s Reasons for
Decision by which it approved the Alberta Clipper Project include the following
findings:
In the case of the Project, the Board
notes that fourteen Aboriginal groups participated in various ways in the
proceeding. The Board is satisfied that the Aboriginal groups were provided
with an opportunity to participate fully in its process, and bring their
concerns to the Board’s attention.
A number of Aboriginal intervenors
expressed concerns regarding how the proposed Project could impact undiscovered
historical, archaeological and sacred burial sites. The Board notes Enbridge’s
commitments to work with Aboriginal communities in the event that such sites
are discovered and the implementation of a Heritage Resource Discovery
Contingency Plan which includes specific procedures for the discovery and
protection of archaeological, palaeontological and historical sites including
the evaluation and implementation of appropriate mitigation measures. The
Board also notes Enbridge’s decision to route the pipeline path to avoid the
Thornhill Burial Mounds site. However, in view of the importance of these
sites, should the Project be approved, the Board would include a condition to
direct Enbridge to immediately cease all work in the area of any archaeological
discoveries and to contact the responsible provincial authorities. This would
ensure the protection and proper handling of any archaeological discoveries and
potential impacts to traditional use. If the Project were to be approved, the
Board would also direct Enbridge to file with the Board, and make available on
its website, reports on its consultation with Aboriginal groups concerning the
Thornhill Burial Mounds.
In terms of the potential adverse impacts
of the Project to current traditional use, the Board notes that there were
suggestions of current traditional use over the proposed route, but no specific
evidence was provided. The large majority of the facilities would be buried
and would be completed within a short construction window and a large majority
of the land required for the Project has been previously disturbed and is
generally privately owned and used for agricultural purposes. In view of these
facts and Enbridge’s commitment to ongoing consultation with Aboriginal people
throughout the life cycle of the Project, the Board is of the view that
potential Project impacts to Aboriginal interests, particularly with regard to
traditional use over the RoW would be minimal and would be appropriately
mitigated. The Board is satisfied that ongoing discussions between the
Applicant and Aboriginal people, together with the Heritage Resource Discovery
Contingency Plan, would minimize potential impacts to traditional use sites, if
encountered.
The Board considers that Enbridge’s
Aboriginal engagement program was appropriate to the nature and scope of the
Project. In view of Enbridge’s demonstrated understanding that Aboriginal
engagement is an ongoing process, its commitments and the proposed conditions,
the Board finds that Enbridge’s Aboriginal engagement program would fulfill the
consultation requirements for Alberta Clipper.
[12]
The
NEB’s findings
concerning the impact of the Southern Lights Project on Aboriginal peoples
included the following:
The Applicants indicated that they were
not aware of any potential impacts on Aboriginal interests that had not been
identified in the Southern Lights applications or subsequent filings. The Applicants
submitted that, in the event that there are more interests that are identified
that may be impacted, they would meet with the Aboriginal organization or
community that has identified an interest and work with that community to
jointly develop a course of action.
The Board is of the view that those
Aboriginal people with an interest in the Southern Lights applications were
provided with the details of the Project and were given the opportunity to make
their views known to the Board in a timely manner so that they could be
factored into the decision-making process.
Further, the Board is of the view that
the Applicants’ consultation program was effective in identifying the impacts
of the Project on Aboriginal people.
The Project would involve a relatively
brief window of construction, with the vast majority of the facilities being
buried. As almost all the lands required for the Project are previously
disturbed, are generally privately owned, are used primarily for agricultural
purposes and are adjacent to an existing pipeline RoW, the Board is of the view
that potential Project impacts on Aboriginal interests could be appropriately
mitigated. The Board is therefore of the view that impacts on Aboriginal
interests are likely to be minimal.
[13]
On
the recommendation of the NEB the GIC issued Order in Council Nos. P.C.
2008-856 and P.C. 2008-857, both dated May 8, 2008, approving the issuance of
Certificates of Public Convenience and Necessity authorizing the construction
and operation respectively of the Southern Lights Project and the Alberta
Clipper Project. These are the decisions which are the subject of the Applicants’
claims for relief in T-921-08 and in T-925-08.
[14]
In
2006 and 2007 the Treaty One First Nations attempted to directly engage the
federal Crown in “a meaningful consultation and accommodation” concerning the
Pipeline Projects and their impact upon their “constitutionally protected
Aboriginal and Treaty rights and title” but those efforts were ignored.
II. Issues
[15]
It
is the position of the Treaty One First Nations in these proceedings that the federal
Crown failed to fulfill its legal obligations of consultation and accommodation
before granting the necessary approvals for the construction of the Pipeline
Projects in their traditional territory. Although the Treaty One First Nations
acknowledge that the corporate Respondents and the NEB have engaged
in consultations in connection with the Pipeline Projects and have accommodated
some of their concerns, those efforts they say, are not a substitute for the
larger obligations of the Crown. Indeed, while the NEB and the
corporate Respondents appear to have been quite attentive to the remediation of
Aboriginal construction or project-related concerns, they acknowledge an
inability to resolve outstanding land claims.
[16]
At
the root of these proceedings is the issue of the Treaty One First Nations’
outstanding land claims in southern Manitoba. The primary issue
before the Court is whether the Pipeline Projects have a sufficient impact on
the interests of the Treaty One First Nations such that a duty to consult on
the part of the Crown was engaged. If a duty to consult was engaged, the Court
must also determine its content and consider whether and to what extent the
duty may be fulfilled by the NEB acting essentially as a surrogate for the
Crown.
III. Analysis
Standard of
Review
[17]
With
respect to the issue of the standard of review that applies in these
proceedings, I would adopt the view of my colleague Justice Danièle Tremblay-Lamer
in Tzeachten First Nation v. Canada (Attorney General), 2008 FC 928, 297
D.L.R. (4th) 300 at paras. 23-24:
23 In Ka'a'Gee Tu First Nation
v. Canada (Attorney General), 2007 FC 763, 315 F.T.R. 178
at paras. 91-93, my colleague Justice Edmond Blanchard, following the
general principles espoused in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R.
511 at paras. 61-63, indicated that a question as to the existence and content
of the duty to consult and accommodate is a question of law reviewable on the
standard of correctness and further that a question as to whether the Crown
discharged this duty to consult and accommodate is reviewable on the standard
of reasonableness.
24 Accordingly, when it falls to
determine whether the duty to consult is owed and the content of that duty, no
deference will be afforded. However, where a determination as to whether that
duty was discharged is required, the analysis will be concerned with "the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] [...] whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law" (Dunsmuir, above, at para. 47).
Also see: Ahousaht Indian Band v. Canada (Minister of
Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722 at paras. 33
and 34.
[18]
In
the result the question of the existence and content of a Crown duty to consult
in this case will be assessed on the basis of correctness. The question of
whether any such duty or duties were discharged by the Crown will be determined
on a standard of reasonableness.
To What
Extent Was the Crown on Notice of the Applicants’ Concerns?
[19]
The
Crown makes the preliminary point that much of the evidence tendered in this
proceeding to establish a foundation for the asserted duty to consult was not
placed before the GIC by the Treaty One First Nations. While that is true, the
GIC was made aware and must be taken to have known of the Treaty One First
Nations’ primary concern that the Pipeline Projects traversed land that was at
one time within their traditional territory and, as well, that the Treaty One First
Nations have asserted a long-standing claim to additional land in southern
Manitoba. In addition, the Crown is always presumed to know the content of its
treaties: see Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 34.
[20]
The
record before me establishes very clearly that the Treaty One First Nations
diligently attempted to directly engage the Crown in a dialogue about the
impact of the Pipeline Projects on their unresolved treaty claims. Over
several months in 2007 letters were sent from Treaty One First Nations’ Chiefs
to the Prime Minister, to the Minister of Indian Affairs, to other Ministers,
and to the Secretary to the GIC seeking consultation, but their letters were
never answered even to the extent of a simple acknowledgement. The frustration
engendered by the Crown’s refusal to open a dialogue with the Treaty One First
Nations prior to the commencement of this litigation is reflected in the
following passage from the affidavit of Chief Dennis Meeches of the Long Plain
First Nation Reserve:
38. As Chief, I had been
conducting myself under the belief that the federal government, on behalf of
Her Majesty the Queen in Right of Canada, has a legal duty to consult with my
First Nation before making any decisions related to lands in our traditional
territory inside the boundaries of Treaty 1. I know also the Crown has a Duty
to seek workable accommodations of our concerns and protect our interests,
title, and rights.
39. I have no doubt that
throughout all this time, the federal government, acting on behalf of the
crown, has been aware of the existence of my First Nation’s rights, title, and
interests in the (sic) our traditional territory. I have brought this
to the attention of federal ministers and the Canadian public many times over
the years, and particularly in relation to the proposed construction of
pipelines through our Territory.
40. The events in this
process regarding consultation on pipeline construction have added to my
serious concerns about the Federal Government’s respect for me, our First
Nation, my people, and our Treaty. We raised concerns about the pipelines
crossing our territory and our rights, title, and interest being affected. We
asked to be consulted about these matters, we told the government we would
suffer serious adverse effects if the pipelines were constructed without
accommodating our interests and rights. We warned that if the pipelines
proceeded without our being consulted, we would have no alternative except to
appeal to the Courts for relief, and that this could cause unfortunate delays
with the potential to cause damages for the companies involved and the Canadian
economy in general. Nonetheless the federal Ministers have ignored us to this
day, and with respect to the Keystone pipeline, made their decision without any
consultation whatsoever. I feel frustrated, angry, saddened and disappointed
about being ignored and treated this way.
To the extent noted above the GIC was well aware
of the Treaty One First Nations’ broad concerns about the potential impact of
the Pipeline Projects. From the NEB Reasons for Decision issued in connection
with the Pipeline Projects, the GIC was also aware of the specific concerns of
the Aboriginal peoples who were either consulted or who made representations at
the NEB hearings.
Against this evidentiary background, it is disingenuous for the Crown to assert
that it was unaware of the concerns raised by the Treaty One First Nations in
these proceedings. The evidence the Crown objects to adds nothing of
significance to what it already knew or would be taken to have understood.
Duty to
Consult – Legal Principles
[21]
For
the sake of argument, I am prepared to accept that an approval given by the GIC
under s. 52 of the National Energy Board Act, R.S.C. 1985, c. N-7 (NEB
Act) may, in an appropriate context, be open to judicial review in accordance
with the test established in Thorne's Hardware Ltd. v. Canada, [1983] 1
S.C.R. 106, [1983] S.C.J. No. 10 on the basis of a failure to consult. It is
enough for present purposes to say that where a duty to consult arises in
connection with projects such as these it must be fulfilled at some point
before the GIC has given its final approval for the issuance of a Certificate
of Public Convenience and Necessity by the NEB.
[22]
The
Crown’s duties to consult and accommodate were thoroughly discussed in Haida
Nation v. British Columbia (Minister of Forests), 2004 SCC
73, [2004] 3 S.C.R. 511 and in Taku River Tlingit First Nation v.
British Columbia, 2004 SCC 74, [2004] 3 S.C.R. 550. More recently in Ka'a'Gee
Tu First Nation v. Canada (Attorney General), 2007 FC 763, [2007] F.C.J.
No. 1006, Justice Edmond Blanchard provided the following helpful
summary of those and other relevant authorities:
94 The duty to consult was first held
to arise from the fiduciary duty owed by the Crown toward Aboriginal peoples
(see Guerin v. Canada, [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 and R.
v. Sparrow, [1990] 1 S.C.R. 1075). In more recent cases, the Supreme Court
has held that the duty to consult and accommodate is founded upon the honour of
the Crown, which requires that the Crown, acting honourably, participate in
processes of negotiation with the view to effect reconciliation between the
Crown and the Aboriginal peoples with respect to the interests at stake (see Haida,
supra; Taku, supra, and Mikisew Cree First Nation v. Canada (Minister
of Canadian Heritage), 2005 SCC 69, [2005] S.C.J. No. 71).
95 In Haida, Chief Justice
McLachlin sets out the circumstances which give rise to the duty to consult. At
paragraph 35 of the reasons for decision, she wrote:
But, when precisely does a duty to
consult arise? The foundation of the duty in the Crown's honour and the goal of
reconciliation suggest that the duty arises when the Crown has knowledge, real
or constructive, of the potential existence of the Aboriginal right or title
and contemplates conduct that might adversely affect it: see Halfway River
First Nation v. British Columbia (Minister of Forests), [1997] 4 C.N.L.R. 45
(B.C.S.C), at p. 71, per Dorgan J.
96 For the duty to arise there must,
first, be either an existing or potentially existing Aboriginal right or title
that might be adversely affected by the Crown's contemplated conduct. Second,
the Crown must have knowledge (either subjective or objective) of this
potentially existing right or title and that the contemplated conduct might
adversely affect those rights. While the facts in Haida did not concern
treaties, there is nothing in that decision which would indicate that the same
principles would not find application in Treaty cases. Indeed in Mikisew,
the Supreme Court essentially decided that the Haida principles apply to
Treaties.
97 While knowledge of a credible but
unproven claim suffices to trigger a duty to consult and, if appropriate,
accommodate, the content of the duty varies with the circumstances. Precisely
what is required of the government may vary with the strength of the claim and
the impact of the contemplated government conduct on the rights at issue.
However, at a minimum, it must be consistent with the honour of the Crown. At
paragraph 37 of Haida, the Chief Justice wrote:
...Precisely what duties arise in
different situations will be defined as the case law in this emerging area
develops. In general terms, however, it may be asserted that the scope of the
duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the
potentially adverse effect upon the right or title claimed. Hence, unlike the
question of whether there is or is not a duty to consult, which attracts a yes
or no answer, the question of what this duty consists, is inherently variable.
Both the strength of the right asserted and the seriousness of the potential
impact on this right are the factors used to determine the content of the duty
to consult.
98 At paragraphs 43 to 45, the Chief
Justice invokes the concept of a spectrum to assist in determining the kind of
duties that may arise in different situations.
Against this background, I turn to the
kind of duties that may arise in different situations. In this respect, the
concept of a spectrum may be helpful, not to suggest watertight legal
compartments but rather to indicate what the honour of the Crown may require in
particular circumstances. At one end of the spectrum lie cases where the claim
to title is weak, the Aboriginal right limited, or the potential for infringement
minor. In such cases, the only duty on the Crown may be to give notice,
disclose information, and discuss any issues raised in response to the notice.
"'[C]onsultation' in its least technical definition is talking together
for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to
Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.
At the other end of the spectrum lie
cases where a strong prima facie case for the claim is established, the right
and potential infringement is of high significance to the Aboriginal peoples,
and the risk of non-compensable damage is high. In such cases deep
consultation, aimed at finding a satisfactory interim solution, may be
required. While precise requirements will vary with the circumstances, the
consultation required at this stage may entail the opportunity to make
submissions for consideration, formal participation in the decision- making
process, and provision of written reasons to show that Aboriginal concerns were
considered and to reveal the impact they had on the decision. This list is
neither exhaustive, nor mandatory for every case. The government may wish to
adopt dispute resolution procedures like mediation or administrative regimes
with impartial decision-makers in complex or difficult cases.
Between these two extremes of the
spectrum just described, will lie other situations. Every case must be
approached individually. Each must also be approached flexibly, since the level
of consultation required may change as the process goes on and new information
comes to light. The controlling question in all situations 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. Pending
settlement, the Crown is bound by its honour to balance societal and Aboriginal
interests in making decisions that may affect Aboriginal claims. The Crown may
be required to make decisions in the face of disagreement as to the adequacy of
its response to Aboriginal concerns. Balance and compromise will then be
necessary.
99 The kind of duty and level of
consultation will therefore vary in different circumstances.
[23]
These
are the general principles by which the issues raised in these proceeding must
be determined. Of particular importance in this case is the principle that the
content of the duty to consult with First Nations is proportionate to both the
potential strength of the claim or right asserted and the anticipated impact of
a development or project on those asserted interests.
Was a Duty to
Consult Engaged and, if so, Was that Obligation Fulfilled?
[24]
I
do not intend nor do I need to determine the validity of the Treaty One First
Nations’ outstanding treaty claims and on a historical and evidentiary record
as limited as this one, it would be inappropriate to do so: see Ka'a'Gee, above,
at para. 107. Suffice it to say that I do not agree with Enbridge when it
states that “Treaty One is clear on its terms that the Aboriginal parties cede
all lands except those specifically set aside for reserves”. The exercise of
treaty interpretation is not constrained by a strict literal approach to the
text or by rigid rules of construction. What the Court must look for is the
natural common understanding of the parties at the time the treaty was entered
into which may well be informed by evidence extraneous to the text: see Mikisew,
above, at paras. 28-32. From the evidence before me there could well have been
an understanding or expectation at the time of signing Treaty One that the
First Nations’ parties would continue to enjoy full access to unallocated land
beyond the confines of the reserves, that additional reserve lands would be
later made available and that further large scale immigrant encroachment on those
lands was not contemplated. I am proceeding on the assumption, therefore, that
the Applicants’ claim to additional treaty lands and the right to continued
traditional use of those lands within Manitoba is credible. The more
significant issue presented by this case concerns the impact of the Pipeline
Projects on the interests and claims asserted by the Treaty One First Nations
and the extent to which those concerns were adequately addressed through the NEB regulatory
processes.
[25]
In
determining whether and to what extent the Crown has a duty to consult with
Aboriginal peoples about projects or transactions that may affect their
interests, the Crown may fairly consider the opportunities for Aboriginal
consultation that are available within the existing processes for regulatory or
environmental review: Hupacasath First Nation v. British Columbia, 2005
BCSC 1712, 51 B.C.L.R. (4th) 133 at para. 272. Those review processes may be
sufficient to address Aboriginal concerns, subject always to the Crown’s overriding
duty to consider their adequacy in any particular situation. This is not a
delegation of the Crown’s duty to consult but only one means by which the Crown
may be satisfied that Aboriginal concerns have been heard and, where
appropriate, accommodated: see Haida, above, at para. 53 and Taku,
above, at para. 40.
[26]
The
NEB process
appears well-suited to address mitigation, avoidance and environmental issues
that are site or project specific. The record before me establishes that the
specific project concerns of the Aboriginal groups who were consulted by the
corporate Respondents or who made representations to the NEB (including,
to some extent, the Treaty One First Nations) were well-received and largely
resolved.
[27]
These
regulatory processes appear not to be designed, however, to address the larger
issue of unresolved land claims. As already noted in these reasons, the NEB and the
corporate Respondents have acknowledged that obvious limitation.
[28]
From
the perspective of the Treaty One First Nations, the remediation of their
project specific concerns may not answer the problem presented by the
incremental encroachment of development upon lands which they claim or which
they have enjoyed for traditional purposes. While the environmental footprint of
any one project might appear quite modest, the eventual cumulative impact of
development on the rights and traditional interests of Aboriginal peoples can
be quite profound.
[29]
It
follows from this that the NEB process may not be a substitute for the
Crown’s duty to consult where a project under review directly affects an area
of unallocated land which is the subject of a land claim or which is being used
by Aboriginal peoples for traditional purposes.
[30]
The
fundamental problem with the claims advanced in these proceedings by the Treaty
One First Nations is that the evidence to support them is expressed in
generalities. Except for the issue of their unresolved land claims in southern
Manitoba that
evidence fails to identify any interference with a specific or tangible
interest that was not capable of being resolved within the regulatory process.
Even to the extent that cultural, environmental and traditional land use issues
were raised in the evidence, they were not linked specifically to the projects
themselves. This is not surprising because the evidence was clear that the
Pipeline Projects were constructed on land that had been previously exploited
and which was almost all held under private ownership. For example, the
evidence is clear that the Alberta Clipper and Southern Lights projects will
have negligible, if any, impact upon the Treaty One First Nations outstanding
land claims in southern Manitoba. The Southern Lights Pipeline uses the same
corridor as the Alberta Clipper Pipeline. Both are constructed within or
contiguous to existing pipeline rights-of-way which run almost entirely over
private and previously disturbed land. With the exception of 700 meters of
pipeline corridor crossing the Swan Lake Reserve (with that Band’s consent) the
Aboriginal representatives consulted by Enbridge indicated that the affected
lands were not the subject of any land claim or the site of any traditional
activity.
[31]
Although
Enbridge and the NEB did receive representations from Aboriginal
leaders about specific impacts upon known and unidentified archaeological, sacred,
historical, and paleontological sites, the record indicates that those concerns
were considered and accommodated including, in one instance, the relocation of
the right-of-way to protect a burial ground. The level of engagement between
Enbridge and Aboriginal communities and Band Councils (including the Treaty One
First Nations) was, in fact, extensive and quite thorough. The NEB findings in
relation to the Aboriginal concerns raised before it are reasonably supported
by the record before me and the Treaty One First Nations have not argued
otherwise except to say that they do not necessarily agree.
[32]
The
NEB findings
concerning the Keystone Pipeline were to the same general effect and are
reasonably supported by the evidence in that record. In fact, the Treaty One
First Nations do not dispute the NEB findings that the land
affected by the Keystone Pipeline was almost all in private ownership and previously
utilized for pipeline, agricultural and ranching purposes. Once
buried it is reasonable to conclude that this pipeline would have a minimal
impact on the surrounding environment.
[33]
The
inability of the Treaty One First Nations to make a case for a substantial
interference with a treaty or a traditional land use claim around these
projects becomes evident from the affidavits they submitted. The affidavit of
Chief Terrance Nelson offers one example of this at paras. 29-34:
29. We are located near
the proposed pipeline, maybe 18 miles away. Our traditional community are very
concerned that their culture, which involves the use of traditional herbs and
medicines, will be affected by the pipeline. They are worried about spiritual
aspects of having a pipeline running through the ground.
30. The rivers are
already quite polluted, and our people are concerned about further pollution if
there would be a leak of the pipeline that would spread through the water ways
in this low and flat area. There are tributaries of the Red River which flow
south and then flow back north into Lake Winnipeg.
31. Our people do
considerable hunting. There is a concern that the pipelines could affect
animal migration, or that animals would abandon the area completely.
32. Our people have been
in this are for centuries. There are numerous burial sites in the area. Our
elders also know of sacred sites. Our people engage in many traditional
activities throughout the year. They gather many herbs, and many plants are
becoming very scarce and are at risk.
33. Our First Nation has
no knowledge that at any time any Treaty One First Nation, including our own
First Nation, has surrendered our Treaty, Treaty-protected inherent rights or
title to our traditional territory within the boundaries of Treaty 1. Our only
agreement was to share lands for “immigration and settlement”.
34. As Chief, I had been
conducting myself under the belief that the federal government, on behalf of
Her Majesty the Queen in Right of Canada, has a legal duty to consult with my
First Nation before making any decisions related to lands in our traditional
territory inside the boundaries of Treaty 1. I know also the federal
government, on behalf of the Crown, has a Duty to seek workable accommodations
of our concerns and protect our interests, title, and rights.
[34]
I
do not question that the above statements reflect a profoundly held concern not
only of Chief Nelson but of others in the Manitoba Aboriginal community. The
problem is that to establish a procedural breach around projects such as these
there must be some evidence presented which establishes both an adverse impact
on a credible claim to land or to Aboriginal rights accompanied by a failure to
adequately consult. The Treaty One First Nations are simply not correct when
they assert in their evidence that a duty to consult is engaged whenever the
Government of Canada makes “any decision related to lands in our traditional
territory inside the boundaries of Treaty 1”. There is no at-large duty to consult that
is triggered solely by the development of land for public purposes. There must
be some unresolved non-negligible impact arising from such a development to
engage the Crown’s duty to consult.
[35]
Moreover,
in a number of respects, the arguments advanced by Treaty One First Nations for
a duty to consult outside of the NEB process exceeded the
scope of the evidence they adduced in support.
[36]
For
example, the Treaty One First Nations assert that, had the Crown engaged in a
separate consultation, it would have been told that the Pipeline Projects would
disrupt “their ongoing harvesting activities” and that they were also concerned
about “environmental pollution”. The Treaty One First Nations also claim that
they needed to be consulted about previously unidentified sacred or cultural
sites which might have been threatened by the Pipeline Projects. At the same
time they acknowledge that these were matters that were brought before the NEB or raised
with the corporate Respondents and largely accommodated or mitigated. The advantage
of a separate consultation with the Crown about such matters is not explained
beyond making the point that where mitigation measures are adequate but unilaterally
imposed there must still be a consultation to meet the goal of reconciliation.
This argument effectively ignores the fact that the mitigatory measures adopted
here by the NEB were not
unilaterally created but were the product of an extensive dialogue with
interested Aboriginal communities including some of the Treaty One First
Nations.
[37]
The
Treaty One First Nations maintain that there must always be an overarching
consultation regardless of the validity of the mitigation measures that emerge
from a relevant regulatory review. This duty is said to exist notwithstanding
the fact that Aboriginal communities have been given an unfettered opportunity
to be heard. This assertion seems to me to represent an impoverished view of
the consultation obligation because it would involve a repetitive and
essentially pointless exercise. Except to the extent that Aboriginal concerns
cannot be dealt with, the appropriate place to deal with project-related
matters is before the NEB and not in a collateral discussion with
either the GIC or some arguably relevant Ministry.
[38]
The
authorities relied upon by the Treaty One First Nations to support their separate
argument for a duty to consult with respect to their land claims are
distinguishable because each of those cases involved fresh impacts that were, to
use the words of Justice Ian Binnie in Mikisew, above, “clear,
established and demonstrably adverse” to the rights in issue. That cannot be
fairly said of the relationship between the Pipeline Projects and the Treaty
One First Nations’ land claims in this case where no meaningful linkage is
apparent on the evidence before me.
[39]
This
is not a case like Mikisew where there was compelling evidence of
injurious affection to the interests of local hunters and trappers
notwithstanding the limited footprint of the proposed winter road. This is
made clear at para. 55 of the decision:
55 The Crown has a treaty right to
"take up" surrendered lands for regional transportation purposes, but
the Crown is nevertheless under an obligation to inform itself of the impact
its project will have on the exercise by the Mikisew of their hunting and trapping
rights, and to communicate its findings to the Mikisew. The Crown must then
attempt to deal with the Mikisew "in good faith, and with the intention of
substantially addressing" Mikisew concerns (Delgamuukw, at para.
168). This does not mean that whenever a government proposes to do anything in
the Treaty 8 surrendered lands it must consult with all signatory First
Nations, no matter how remote or unsubstantial the impact. The duty to consult
is, as stated in Haida Nation, triggered at a low threshold, but adverse impact
is a matter of degree, as is the extent of the Crown's duty. Here the impacts
were clear, established and demonstrably adverse to the continued exercise of
the Mikisew hunting and trapping rights over the lands in question.
Even though the project considered in Mikisew
involved direct and immediate interference with identified Aboriginal
interests, the Court said that the Crown’s consultation duty was at the lower
end of the spectrum requiring notice to the Mikisew and the careful consideration
of their concerns with a view to minimizing adverse impacts.
[40]
The
development that was of concern in Taku, above, similarly involved the
construction of an access road. Although the road was said to represent a
small intrusion relative to the size of the outstanding land claim it would
nonetheless “pass through an area critical to the [Taku River First Nation’s]
domestic economy”. This was held sufficient to trigger a duty to consult that
was significantly deeper than minimum requirement. Because the environmental
assessment for the road mandated consultation with affected Aboriginal peoples
and because the Taku River First Nation was consulted throughout the
certification process, the Crown’s duty was found to have been met.
[41]
In
Ka’a’Gee, above, Justice Blanchard dealt with an application for
judicial review from a decision by the federal Crown to approve an oil and gas
development in the Northwest Territories. That project was
extensive and involved the drilling of up to 50 wells, the excavation of 733
kilometers of seismic lines, the construction of temporary camps, the use of
water from area lakes and the disposal of drill waste. Justice Blanchard found
that the project would have significant and lasting impact on an area over
which the affected First Nation asserted Aboriginal title and where they
carried out harvesting activity. This, he said, triggered a duty to consult
that was higher than the minimum described in Mikisew. Up to a point,
Justice Blanchard was satisfied that the comprehensive regulatory process was
sufficient to fulfill the Crown’s duty to consult. It was only when the Crown
unilaterally modified the process and made fundamental changes to important
recommendations that had come out of the earlier consultations that the duty to
consult was found to have been breached.
[42]
I
am satisfied that the process of consultation and accommodation employed by the
NEB was sufficient to address the specific concerns of Aboriginal communities
potentially affected by the Pipeline Projects including the Treaty One First
Nations. The fact that the Treaty One First Nations may not have availed
themselves fully of the opportunity to be heard before the NEB does not
justify the demand for a separate or discrete consultation with the Crown. To
the extent that regulatory procedures are readily accessible to Aboriginal
communities to address their concerns about development projects like these,
there is a responsibility to use them. First Nations cannot complain about a
failure by the Crown to consult where they have failed to avail themselves of
reasonable avenues for seeking relief. That is so because the consultation
process is reciprocal and cannot be frustrated by the refusal of either party
to meet or participate: see Ahousaht v. Canada, 2008 FCA 212, [2008]
F.C.J. No. 946 at paras. 52-53. This presupposes, of course, that available
regulatory processes are accessible, adequate and provide First Nations an
opportunity to participate in a meaningful way.
[43]
It
cannot be seriously disputed that the Pipeline Projects have been built on
rights-of-way that are not legally or practically available for the settlement
of any outstanding land claims in southern Manitoba. Even the
Treaty One First Nations acknowledge that the additional lands they claim were
intended to be taken from those lands not already taken up by settlement and
immigration.
In the result, if the Crown had any duty to consult with the Treaty One First
Nations with respect to the impact of the Pipeline Projects on their unresolved
land claims, it was at the extreme low end of the spectrum involving a
peripheral claim attracting no more than an obligation to give notice: see Haida
Nation, above, at para. 37. Here the relationship between the land claims
and the Pipeline Projects is simply too remote to support anything more: also
see Ahousaht v. Canada, 2007 FC 567, [2007] F.C.J. No. 827 at para. 32,
aff’d 2008 FCA 212, [2008] F.C.J. No 946 at para. 37.
[44]
I
have no doubt, however, that had any of the Pipeline Projects crossed or
significantly impacted areas of unallocated Crown land which formed a part of
an outstanding land claim a much deeper duty to consult would have been
triggered. Because this is also the type of issue that the NEB process is
not designed to address, the Crown would almost certainly have had an
independent obligation to consult in such a context.
IV. Conclusion
[45]
The
consultation duty owed by the Crown to the Treaty One First Nations has been
met. This is not to say that the Treaty One First Nations do not have a
credible land claim but only that the impact these Pipeline Projects have upon
those claims is negligible. The Pipeline Projects have been built almost
completely over existing rights-of-way and on privately owned and actively
utilized land not now nor likely in the future to be available for land claims
settlement. The pipelines in question are also largely below ground and are
reasonably unobtrusive. There is no evidence before me or, more importantly that
was before the NEB or the GIC, to prove that the Pipeline Projects would be
likely to interfere with traditional Aboriginal land use or would represent a
meaningful interference with the future settlement of outstanding land claims
in southern Manitoba. To the
extent that any duty to consult was engaged, it was fulfilled by the notices
that were provided to the Treaty One First Nations and to other Aboriginal
communities in the context of the NEB proceedings and by the
opportunities that were afforded there for consultation and accommodation.
[46]
These
applications are, accordingly, dismissed. If any of the Respondents are
seeking costs against the Applicants, I will receive further submissions in
that regard. Any such submissions shall not exceed 5 pages in length and must
be submitted within 7 days of this Judgment. I will then allow the Applicants
an additional 10 days to respond with their own submissions which individually
shall not exceed 5 pages in length.
JUDGMENT
THIS COURT ADJUDGES that these
applications are dismissed with the matter of costs to be reserved pending
further submissions, if any, from the parties.
“ R. L. Barnes ”
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