Date: 20070720
Docket: T-1996-05
Citation: 2007 FC 764
BETWEEN:
CHIEF LLOYD CHICOT suing on his
own behalf and on behalf of all Members
of the Ka’a’Gee Tu First Nation and the
KA’A’GEE TU FIRST NATION
Applicants
and
MINISTER OF INDIAN AND NORTHERN
AFFAIRS CANADA,
PARAMOUNT RESOURCES LTD.
Respondents
REASONS FOR ORDER
Blanchard J.
1. Introduction
[1]
The Applicants
bring this amended application for judicial review in respect of the decision
of the Mackenzie Valley Land and Water Board (the Land and Water Board) to
issue amended land use permit MV2002A0046 (the LUP) to Paramount Resources Ltd.
(Paramount) on September 29, 2005 pursuant to its powers under the Mackenzie
Valley Resource Management Act (the Act) and associated regulations.
2. Background Facts
[2]
The LUP was
issued following the approval of the “Extension Project”. The Extension Project
represents the third phase of Oil and Gas Development in the Mackenzie Valley, in an area known as the Cameron Hills and signaled the beginning of
production work. The Applicants in a separate application for judicial review,
T-1379-05, challenged the decision to approve the Extension Project alleging
that the Crown had failed to meet its duty to consult and accommodate. That
matter was scheduled to be heard at the same time as the within application.
The issues raised in application T-1379-05 have now been decided and my reasons
for order are filed concurrently with these reasons. A comprehensive review of
the background facts including the history of oil and gas development in the Mackenzie Valley, a review of the regulatory process
and applicable Treaties is set out in my reasons in application T-1379-05. I
will not repeat here all of those facts which are also material to the within
application. I will limit my summary of the facts here to those circumstances
not covered earlier and which bear on the issues raised in this application.
Mr. Todd Burlingame’s Appointment
[3]
Mr. Todd
Burlingame was
the Chair of the Mackenzie Valley Environmental Impact Review Board (the Review
Board) during the environmental assessment of the Extension Project. This
appointment ended effective February 1, 2005.
[4]
On
January 21, 2005, the Land
and Water Board provided to the Minister of Indian and Northern Affairs Canada (INAC) a
list of three recommended candidates for the position of Chair of that Board,
pursuant to subsection 12(1) of the Act. Mr. Burlingame’s name was not among
them. On February 25, 2005, the Board again wrote to the Minister, expressing
concern that he was contemplating appointing a chair who was not among the
Board’s recommended nominees. The Board stressed that it had used a fair
process and requested that the Minister collaborate with it in making the
appointment.
[5]
The
Minister did not respond to the Board’s letters of January 21 and February 25.
On or about March 9, 2005, the Minister appointed Mr. Burlingame as Chair of
the Land and Water
Board. The
Board was informed of this by a fax dated March 10, 2005.
Land Use Permit Amendment
[6]
Paramount sought to amend its LUP
on June 21, 2005. The Land and Water Board advised that it would not process
the amended application until approval from the Responsible Ministers was
received. The Ministers issued their decision to approve the Extension Project
subject to certain mitigation measures on July 5, 2005.
[7]
By
letters dated July 20 and July 28, 2005, the Applicants wrote to the Land and
Water Board and informed it that the Ministers’ decision was made in breach of
the Federal Crown’s duty to consult and accommodate and that there had yet to
be proper consultation with the Applicants.
[8]
On
July 22, 2005, the Land and Water Board sought input on the amended application
from stakeholders, including the Applicants. On July 26, 2005, the Land and
Water Board responded to the Applicants’ July 20, 2005 letter informing the
Applicants that Paramount’s applications were the subject of an Environmental Assessment which was
now completed. The Land and Water Board informed the Applicants that it would
notify the communities and parties to the permit review process of the results
of the Environmental Assessment, and subject to comments received would then
proceed to complete the licensing process.
[9]
In a
letter dated July 29, 2005 to the Board, the Minister provided his input on the
amended application. He inquired into certain technical aspects of the project and
expressed the view that all project components are consistent with the original
application and that no additional operations were proposed. He also opined
that the recommended measures from the environmental assessment should be
maintained for the amended project.
[10]
On
August 10, 2005, the Land
and Water Board met to consider the amendment application and all of the submissions
made, including letters submitted by counsel on behalf of the Applicants.
[11]
By letter
dated August 3, 2005, and faxed on August 11, 2005 to the Regional Director
General of INAC, the Land
and Water Board advised the Minister that it was exercising its powers under paragraph 22
(2)(b) of the Mackenzie Valley Land Use Regulations, SOR/98-429
(the Regulations) to initiate an investigation into whether the Federal Crown
had conducted appropriate consultation and accommodation with the Applicants.
It further advised the Minister that it would not be issuing the Amended LUP
until it had received a detailed summary of the Crown’s consultation efforts in
relation to the Applicants.
[12]
On
August 29, 2005, the Minister advised the Land and Water Board that it believed that the Crown’s legal duty to
consult had been met in these circumstances, but was unable to provide further
information about the duty since the information requested was the subject of
litigation.
[13]
On
August 31, 2005, Paramount, responding to the Minister’s letter of August 29, wrote to the Board
objecting to any delay in the regulatory approvals process in view of the fact
that Ministerial approval had already been received.
[14]
On
September 13, 2005, the Applicants, responding to the Minister’s August 29,
2005 letter, wrote to the Board indicating that INAC had not responded to the
Board’s request for information and asked that the Board not issue the Amended
LUP until assurances had been received that appropriate consultation had taken
place.
[15]
The
Board met on September 22, 2005, to discuss Paramount’s amended application. Mr. Burlingame was present at
this meeting. On September, 29 2005, on behalf of the Land and Water Board, Mr.
Burlingame issued land use permit #MV2002A0046, the LUP at issue in this
application, and water licence #MV2002L1-00007 for the five wells mentioned in
the application. On October 11, 2005, on behalf of the Land and Water Board, Mr. Burlingame, issued
reasons in support of the decision.
[16]
By
letter to the Land and Water Board dated October 17, 2005, the Applicants expressed
disagreement with the decision and requested that the Board suspend the
operation of the amended permits. The Land and Water Board responded by letter
on October 31, 2005. It stated that it was not “…within the board’s authority
to evaluate the accuracy of the Crown’s consultation and accommodation towards
Ka’a’Gee Tu First Nation (KTFN), particularly when this issue is before the
courts.” The letter also confirmed that the Board had received assurances from
INAC that the Crown’s duty to consult with the KTFN about Paramount’s proposed
activities in the Cameron Hills
had been met.
[17]
The
Applicants filed the within application challenging the validity of the
decision of the Land and Water Board to issue the land use permit for the 5
wells. The Applicants have not challenged the decision to issue the water licence.
Procedural History of
Application T-1996-05
[18]
Application
T-1996-05 was filed on November 4, 2005. Upon being informed that the
Respondents adopted the position that the issues raised in T-1996-05 fell
outside the jurisdiction of the Federal Court by virtue of subsection 32(2) of
the Act, the Applicants filed an identical application enjoining the same
parties in the Northwest Territories Supreme Court, Action No. S-0001-CV-2005-000326.
This proceeding has been adjourned sine die pending the disposition of
the within application.
[19]
The
Applicants then sought by motion to amend their Application by deleting the
request for a declaration that the Minister acted ultra vires his powers
under subsection 12(2) of the Act in appointing Mr. Burlingame to the position
of Chair. The Applicants also sought the removal of the Land and Water Board and Mr. Burlingame in his
capacity as Chair, as respondents.
[20]
The
Respondents moved to have Application T-1996-05 struck for want of jurisdiction
or alternatively stayed pursuant to section 50.1 of the Federal Courts Act.
[21]
The
motions were heard together before Prothonotary Lafrenière on February 7, 2006.
[22]
The motion to
amend the Notice of Application was granted and the Respondent’s motion was
dismissed. In dismissing the motion to strike and/or stay the application, the
learned Prothonotary concluded that in the absence of case law dealing with the
proper interpretation of subsection 32(2), the Respondents had failed to
establish that this proceeding was “bereft of any possibility of success” or
that this was an exceptional case in which the originating notice should be
struck. He concluded that the matter should be raised at the hearing of the
application.
3. Issues
[23]
The Applicants
raise the following issues in their application:
A. Does the
federal Crown’s failure to consult with and accommodate the Ka’a’Gee Tu First
Nation constitute a failure to comply with the requirements of Part 5 of the
Act?
B. Did the
Minister act illegally and ultra vires his powers under section 12 of
the Act in appointing Mr. Burlingame with the result that the decision to issue
the LUP in which Mr. Burlingame participated is void?
C. Did the Land
and Water Board breach the rules of procedural fairness and natural justice by
permitting Mr. Burlingame to participate in the determination of the
investigation initiated by the Land and Water Board under paragraph 22(2)(b)
of the Regulations to determine whether or not the Federal Crown had fulfilled
its obligation to consult and accommodate?
D. Did the Land
and Water Board breach the rules of procedural fairness and natural justice by
permitting Mr. Burlingame to participate in the decision to approve and issue
the Amended LUP?
4. Jurisdiction
[24]
Before proceeding
to consider the arguments of the parties in respect to the issues raised in
this application, I must first be satisfied that I have jurisdiction to hear
the application. It is the Respondents’ position that the Court does not have
the jurisdiction to hear the application. They contend the jurisdiction
properly rests with the Northwest Territories Supreme Court pursuant to the
provisions of subsection 32(2) of the Act.
[25]
In considering
whether this Court has jurisdiction to entertain the application, it is
necessary to consider whether the nature of the relief sought falls within the
subject matter or matters over which this Court has jurisdiction. In doing so
it must be borne in mind that the Federal Court is a statutory court and its
jurisdiction is dependent on that conferred by an act of the Parliament of
Canada.
[26]
The within
amended application is in respect of a decision of the Land and Water Board to
issue a land use permit under the Act wherein the applicants seek the following
relief:
(a) a declaration that the breach by the
Responsible Ministers of their constitutional and legal obligation to consult
with the Ka’a’Gee Tu First Nation (the “Ka’a’Gee Tu”) and accommodate the
Ka’a’Gee Tu’s Aboriginal and Treaty Rights is a failure to comply with Part 5
of the Act;
(b) an order directing the Responsible
Ministers to consult with the Ka’a’Gee Tu and accommodate the Ka’a’Gee Tu’s
Aboriginal and Treaty Rights before allowing the Extension Project, as defined
below, to proceed;
(c) an order quashing and setting aside the
Amended Land Use Permit;
(d) [deleted]
(e) [deleted]
(f) a declaration that Mr. Burlingame’s
participation in the decision to issue the Amended Land Use Permit renders that
decision contrary to law;
(g) a declaration that the issuance of the
Amended Land Use Permit was made in breach of the duties of procedural fairness
and natural justice;
(h) an order staying the Amended Land Use
Permit and restraining Paramount from proceeding with any activities authorized
pursuant to the Amended Land Use Permit pending the disposition of this
application;
(i) costs; and
(j) such further and other relief as this
Honourable Court may deem appropriate.
[27]
The Applicants
essentially seek declaratory relief and an Order quashing the land use permit
and staying any activities permitted by the permit.
[28]
It is not
disputed that the Applicants’ claim is based on existing and applicable federal
law, the Mackenzie Valley Resource Management Act, which is within the legislative
competence of the Parliament of Canada. It follows, therefore, that the Federal
Court would have jurisdiction to hear the application, unless an Act of
Parliament provides otherwise.
[29]
It is the
Respondents position that by enacting subsection 32(2) of the Act Parliament
conferred exclusive jurisdiction in respect to the relief sought in this
amended application to the Supreme Court of the Northwest Territories, thereby depriving the Federal Court of any
jurisdiction to hear the application.
[30]
Section 32 of the
Act provides as follows:
|
32.
(1) Notwithstanding the exclusive jurisdiction referred to in section 18 of
the Federal Courts Act, the Attorney General of Canada or anyone
directly affected by the matter in respect of which relief is sought may make
an application to the Supreme Court of the Northwest Territories for any
relief against a board by way of an injunction or declaration or by way of an
order in the nature of certiorari, mandamus¸quo warranto or
prohibition.
(2) Despite subsection (1) and section 18 of the Federal Courts Act,
the Supreme Court of the Northwest Territories has exclusive original
jurisdiction to hear and determine any action or proceeding, whether or not
by way of an application of a type referred to in subsection (1), concerning
the jurisdiction of the Mackenzie Valley Land and Water Board or the
Mackenzie Valley Environmental Impact Review Board.
|
32. (1) Indépendamment de la compétence exclusive accordée par
l’article 18 de la Loi sur les Cours fédérales, le procureur général
du Canada ou quiconque est directement touché par l’affaire peut présenter
une demande à la cour suprême des Territoires du Nord-Ouest afin d’obtenir,
contre l’office, toute réparation par voie d’injonction, de jugement
déclaratoire, de bref – certiorari, mandamu, quo warranto
ou prohibition – ou d’ordonnance de même nature.
….(2) Malgré le paragraphe (1) et l’article 18 de la Loi sur les
Cours fédérales, la Cour suprême des Territoires du Nord-Ouest a
compétence exclusive en première instance pour connaître de toute question
relative à la compétence de l’Office des terres et des eaux de la vallée du
Mackenzie ou de l’Office d’examen des répercussions environnementales de la
vallée du Mackenzie, qu’elle soit soulevée ou non par une demande du même
type que celle visée au paragraphe (1).
|
[31]
Answering the
jurisdictional question in the circumstances of this case engages an exercise
in statutory interpretation of subsection 32(2) of the Act. In interpreting the
above provisions I am guided by the modern principle of statutory construction
restated by Mr. Justice Binnie in Canada 3000 Inc., Re; Inter-Canadian
(1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865. At
paragraph 36 of his reasons, the learned judge writes:
In
a more modern and elaborate formulation, it is said that “the words of an Act
are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd
ed. 1983), at p. 87).
[32]
It is useful, at
the outset, to consider section 18 of the Federal Courts Act, which is
expressly referred to in the Act. I will also consider the interplay between
sections 18 and 18.1 of the Federal Courts Act; a factor relied on by
the Applicants.
[33]
Section 18 of the
Federal Courts Act confers jurisdiction to the Federal Court in respect
to the prerogative relief sought in this application. That section provides as
follows:
|
18.(1)
Extraordinary remedies, federal tribunals – Subject to section 28, the
Federal Court has exclusive original jurisdiction
(a)
to issue an injunction, writ of certiorari, writ of prohibition, writ
of mandamus or writ of quo warranto, or grant declaratory
relief, against any federal board, commission or other tribunal; and
(b)
to hear and determine any application or other proceeding for relief in the
nature of relief contemplated by paragraph (a), including any
proceeding brought against the Attorney General of Canada, to obtain relief
against a federal board, commission or other tribunal.
(2)
Extraordinary remedies, members of Canadian Forces – The Federal Court
has exclusive original jurisdiction to hear and determine every application
for a writ of habeas corpus ad subjiciendum, writ of certiorari,
writ of prohibition or writ of mandamus in relation to any member of
the Canadian Forces serving outside Canada.
(3)
Remedies to be obtained on application – The remedies provided for in
subsections (1) and (2) may be obtained only on an application for judicial
review made under section 18.1.
|
18.(1) Recours extraordinaires : offices fédéraux
– Sous réserve de l’article 28, la Cour fédérale a compétence exclusive,
en première instance, pour :
a)
décerner une injonction, un bref de certiorari, de mandamus, de
prohibition ou de quo warranto, ou pour rendre un jugement
déclaratoire contre tout office fédéral.
b)
connaître de toute demande de réparation de la nature visée par l’alinéa a),
et notamment de toute procédure engagée contre le procureur général du Canada
afin d’obtenir réparation de la part d’un office fédéral.
(2) Recours extraordinaires : Forces
canadiennes – Elle a compétence exclusive, en première instance, dans le
cas des demandes suivantes visant un membre des Forces canadiennes en poste à
l’étranger : bref d’habeas corpus ad subjiciendum, de certiorari,
de prohibition ou de mandamus.
(3) Exercice des recours – Les recours prévus
aux paragraphes (2 ou (2) sont exercés par présentation d’une demande de
contrôle judiciaire.
|
[34]
By operation of
section 18 of the Federal Courts Act, the Federal Court has exclusive
jurisdiction to hear and determine any application for relief by way of
prerogative remedies against a federal board, commission or other tribunal.
Subsection 18(3) provides that this relief can only be obtained on application
for judicial review under section 18.1. Subsection 18.1(4) sets out the grounds
of review for which the Court can grant relief, namely where the Court is
satisfied that the federal board, commission or tribunal acted without or
beyond its jurisdiction or failed to observe a principle of natural justice,
procedural fairness or other procedure that it was required by law to observe.
[35]
In the
Respondent’s submission, regard must be had to the relationship between
sections 18 and 18.1 of the Federal Courts Act in considering the
subject matter of the jurisdiction conferred to the Supreme Court of the Northwest Territories. The Respondent contends that the
effect of subsection 32(1) of the Act is to grant concurrent jurisdiction to
the Supreme Court of the Northwest Territories in respect of prerogative relief
against boards created by the Act, where the grounds pertain to excess, loss or
lack of statutory authority and to allegations of failure to observe a
principle of natural justice or procedural fairness. The Respondent further
contends that the opening word “despite” of subsection 32(2) of the Act
operates to remove both the concurrent and exclusive jurisdiction of the
Federal Court in respect of prerogative relief against either of the two boards
where the grounds pertain to excess, loss or lack of statutory authority or
allegations of failure to observe a principle of natural justice or procedural
fairness.
[36]
The Applicants
contend that the exclusive jurisdiction conferred to the Supreme Court of the Northwest Territories by subsection 32(2) of the Act
should be interpreted more narrowly. With respect to the relationship between
sections 18 and 18.1 of the Federal Courts Act, the Applicants argue
that subsection 18.1(4) of the Federal Courts Act sets out separate and
distinct grounds of review. The Applicants maintain that acting without, beyond
or refusing to exercise jurisdiction under paragraph 18.1(4)(a), is a
separate ground of review than that provided for in paragraph 18.1(4)(b)
which deals with failure to observe the principles of natural justice or
procedural fairness. Since subsection 32(2) only confers exclusive jurisdiction
to the Supreme Court of the Northwest Territories to “…hear and determine any
action or proceeding, …, concerning the jurisdiction of the Mackenzie
Valley Land and Water Board, …” (my emphasis), it therefore follows, according
to the Applicants, that the exclusive jurisdiction conferred in subsection
32(2) does not include matters involving natural justice and procedural
fairness issues or for that matter any matters involving the other enumerated
grounds in subsection 18.1(4) of the Federal Courts Act.
[37]
In interpreting
the exclusive jurisdiction conferred to the Supreme Court of the Northwest
Territories, the Applicants contend that the Federal Court retains its
jurisdiction, although concurrently with the Supreme Court of the Northwest
Territories, to hear the subject matters of the within application and grant the
relief sought, since the issues raised are not strictly speaking subject
matters concerning the Land and Water Board’s statutory authority.
[38]
In support of
their position, the Applicants submit the following cases of the Supreme Court
of Canada, Canada (Labour Relations Board) v. Transair Ltd. [1971] 1
S.C.R. 722, and Northwestern Utilities Ltd, V. Edmonton (City) [1979] 1
S.C.R. 684. Both cases involve the principle that an administrative tribunal
should be made party to a certiorari proceeding and has the right of
appeal of any other party in order to defend its jurisdiction. The issue was
whether “jurisdiction” in the sense the term was used in those cases, included
transgressions of the tribunal by its failure to adhere to the rules of natural
justice or procedural fairness. In Transair, the Supreme Court viewed
the issue as “mere matter of technique in determining the jurisdiction of the
court to exercise the remedy of certiorari and … not a matter of the
tribunal’s defence of its jurisdiction.” In deciding that such a breach of
procedural fairness is not a matter of the tribunal’s defence of its
jurisdiction, Mr. Justice Estey writing for the Court in Northwestern
Utilities Ltd, stated at page 710:
In
the sense the term has been employed by me here, “jurisdiction” does not
include the transgression of the authority of a tribunal by its failure to
adhere to the rules of natural justice. In such an issue, when it is joined by
a party to proceedings before that tribunal in a review process, it is the tribunal
which finds itself under examination. To allow an administrative board the
opportunity to justify its action and indeed to vindicate itself would produce
a spectacle not ordinarily contemplated in our judicial traditions. In Canada
Labour Relations Board v. Transair Ltd. et al, Spence J. Speaking on this
point, stated at pp. 746-7:
It
is true that the finding that an administrative tribunal has not acted in
accord with the principles of natural justice has been used frequently to
determine that the Board has declined to exercise its jurisdiction and
therefore has had no jurisdiction to make the decision which it has purported
to make. I am of the opinion, however, that this is a mere matter of technique
in determining the jurisdiction of the Court to exercise the remedy of certiorari
and is not a matter of the tribunal’s defence of its jurisdiction. The issue of
whether or not a board has acted in accordance with the principles of natural
justice is surely not a matter upon which the Board, whose exercise of its
function is under attack, should debate, in appeal, as a protagonist and that
issue should be fought out before the appellate or reviewing Court by the
parties and not by the tribunal whose actions are under review. [Footnotes
omitted]
[39]
While the issue
before the Supreme Court was quite different than that which occupies us in
this application, it is clear that the Court in the circumstances was not
prepared to equate a tribunal’s failure to adhere to the principles of natural
justice with the Tribunal’s authority or jurisdiction to act.
[40]
I now turn to the
principle of statutory interpretation referred to earlier in these reasons. It
is necessary to first examine the words of the Act in their ordinary sense in
their entire context. The words of subsection 32(1) confer upon the Supreme
Court of the Northwest
Territories
jurisdiction to entertain applications in respect of “any” prerogative relief
against a “board”. “Board” is defined by section 9 of the Act as any board
established by that Act. For our purposes, this would include the Land and
Water Board. This jurisdiction is conferred “notwithstanding” the Federal
Court’s exclusive jurisdiction in this area conferred by section 18 of the Federal
Courts Act. Therefore, by application of subsection 32(1) of the Act, the
Supreme Court of the Northwest
Territories has
concurrent jurisdiction with the Federal Court in respect of applications for
prerogative relief against the Land and Water Board. This is not disputed by
the parties.
[41]
The words of
subsection 32(2) of the Act confer “exclusive” jurisdiction to hear and
determine any action or proceeding concerning the “jurisdiction” of the
Mackenzie Valley Land and Water Board or the
Mackenzie Valley Environmental Impact Review Board to the Supreme Court of the Northwest Territories.
[42]
The words of the
Act must be read harmoniously with the scheme of the Act, the object of the act
and the intention of Parliament.
[43]
The recitals in
the preamble of the Act refer to the Gwich’in Comprehensive Land Claim
Agreement and the Sahtu Dene and Metis Comprehensive Land Claim Agreement.
These agreements provide that certain boards be established as institutions of
public government to address land use planning, land, water and environmental
impact review. The intent of these agreements is stated to be the establishment
of those boards for the purpose of regulating all land and water uses,
including deposits of waste, in the settlement areas for which they are
established in the Mackenzie
Valley.
[44]
Committee debates
with respect to the composition of the boards to be set up under the Act and
the role of board members help shed light on the intention of Parliament.
Excerpts from Hansard debates of Wednesday, October 29, 1997, read as follows:
Bill
C-6 requires that 50% of the new board members be nominated by first nations,
with the other 50% by the governments of the Northwest Territories and Canada. The
intent is to give aboriginal people and other northerners a stronger role in
resource management decisions. This a very commendable goal.”
[45]
A similar view
was expressed in debates regarding the draft Bill before the Standing Senate
Committee on Aboriginal Peoples. The Minister Responsible for INAC, the
Honorable Jane Stewart, indicated that one of the intentions underlying the Bill
was to decrease the involvement of INAC in decision-making and devolve
questions relating to land and water use in the Valley to the residents of the
Region. I reproduce below, from the transcript of the Proceedings of the
Standing Senate Committee on Aboriginal Peoples held on June 17, 1998, in Ottawa, excerpts of the Minister’s remarks:
…
[T]he bill that senators have before them now is historic. For the first time
my department will be completely removed from resource management in the Mackenzie Valley.
No longer will we make decisions isolated from the people who live on the land;
no longer will my department alone issue land use permits and oversee
environmental assessment.
With
this bill, aboriginal people will have an equal partnership with government in
making decisions on how resources are managed. Decisions that affect the Mackenzie Valley will be
made by residents of that valley. …
This
integrated approach will allow First Nations an important decision-making role
in all lands, not just their settlement lands. This gives First Nations
decision-making authority in projects that are outside their lands, but which
may have an impact on their lands.
[46]
The above stated
objectives are reflected in the Act. The purpose of the establishment of the
Boards is clearly set out in section 9.1 of the Act and is “…to enable
residents of the Mackenzie
Valley to participate
in the management of its resources for the benefit of the residents and of
other Canadians.”
[47]
A careful review
of the Act, the three Comprehensive Land Claim Agreements referred to in the
Act and the above-cited passages from Hansard allow me to make the following
observations with respect to the scheme of the Act, its object and Parliament’s
intention. One of the central purposes of the Act was to provide an important
role for aboriginals and other residents in resource management decisions in
the Mackenzie Valley. It is apparent that Parliament took
great care in its enactment to ensure that aboriginals and residents of the Mackenzie Valley are well positioned to deal
with matters to be treated by the Act and the Land and Water Board and to do so
in their own region. The Act repeatedly stresses the importance of providing a
process which recognizes the role of the local residents and their way of life
in the management of natural resources in the Mackenzie Valley. Numerous provisions are included
that provide for consultation with the various affected communities. Further,
the Comprehensive Land Claim Agreements provide that the Supreme Court of the Northwest Territories is to have jurisdiction over all
matters which could arise under the agreements. In the case of the Tlicho
agreement, that Court is to have exclusive jurisdiction to review on a question
of law or jurisdiction. The record establishes that these Land Claim agreements
were the foundation instruments which led to the passing of the Act and are
indeed expressly referred to in the preamble to the Act.
[48]
The words of
subsection 32(2) of the Act, in their grammatical and ordinary sense provide
for exclusive jurisdiction to the Supreme Court of the Northwest Territories to hear and determine any action or
proceeding “concerning the jurisdiction” of the two Boards. The word
jurisdiction here does not include “any relief against a Board” as provided for
in subsection 32(1) in respect to “an injunction or declaration or by way of an
order in the nature of certiorari, mandamus, quo warranto or
prohibition”.
[49]
In my view, had
Parliament intended to vacate the Federal Court’s jurisdiction entirely, it
would have used clear language to that effect. Had that been the desired
result, Parliament would simply have modified subsection 32(1) by providing
exclusive jurisdiction to the Supreme Court of the Northwest Territories for “any relief against a board”. By
leaving subsection 32(1) unchanged, and by using different language in
subsection 32(2), language limiting the exclusive jurisdiction to actions or
proceedings “concerning the jurisdiction” of the two Boards, Parliament could
only have intended, given subsection 32(1), to employ “jurisdiction” in its
narrow sense. That is to say, jurisdiction on questions that relate to the
authority of the Boards to act.
[50]
I therefore agree
with the Applicants that the exclusive jurisdiction conferred in subsection
32(2) is limited to matters concerning the Boards’ loss or lack of statutory
authority to act. In my construction, section 32 of the Act does not vacate the
Federal Court’s concurrent jurisdiction in respect to matters involving natural
justice and procedural fairness. I find this interpretation to be consistent
with the words of section 32 of the Act read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act and the intention of Parliament.
[51]
I therefore find
that this Court has jurisdiction to hear and decide the matters at issue in
this application.
[52]
I will now turn
to the substantive issues in the application.
A. Does the federal Crown’s failure to
consult with and accommodate the Ka’a’Gee Tu First Nation constitute a failure
to comply with the requirements of Part 5 of the Act?
[53]
In application
T-1379-05, I found that the Crown in right of Canada had failed to discharge its duty to consult and, if
necessary, accommodate before making a final decision on the approval of the
Extension Project. I provided reasons for this decision.
[54]
The Applicants
contend that the Crown’s failure to meet its obligation to consult also
constitutes a breach of the statutory authority under which the Crown purports
to act in this case.
[55]
The Applicants
contend that because the duty to consult by the Crown in right of Canada was not met, the Board did not have authority to
issue the LUP and as a result the LUP must be set aside. The Applicants rely on
s.62 of the Act which provides:
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Requirements
of Part 5
62.
A board may not issue a licence, permit or authorization for the carrying out
of a proposed development within the meaning of Part 5 unless the
requirements of that Part have been complied with, and every licence, permit
or authorization so issued shall include any conditions that are required to
be included in it pursuant to a decision made under that Part.
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Examen des répercussions environnementales
62. L’office ne peut délivrer de permis ou d’autorisation
visant à permettre la réalisation d’un projet de développement au sens de la
partie 5 avant que n’aient été remplies les conditions prévues par celle-ci.
Il est en outre tenu d’assortir le permis ou l’autorisation des conditions
qui sont imposées par les décisions rendues sous le régime de cette partie.
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[56]
The Applicants
contend that the Crown’s failure to comply with the duty to consult and
accommodate is a failure to comply with the requirements of Part 5 of the Act,
and is, by the operation of section 62, a deficiency that must be remedied
before the Land and Water Board may issue further permits and licenses.
[57]
The nature of the
question here involves determining whether the established breach of the duty
to consult by the Federal Crown leads to the conclusion that the requirements
of Part 5 of the Act have not been complied with. In my view this is a question
of law reviewable on the correctness standard of review.
[58]
The Applicants
argue that the failure to comply with the requirement of Part 5 occurs because
the Act must be read in a manner that is compatible with section 35 of the Constitution
Act, that is to say, in the Applicants’ submission, in a manner that is
consistent with the Federal Crown’s constitutionally entrenched duty of consultation
and accommodation. The duty to consult and accommodate must therefore be “read
into” the Act and therefore, the Crown’s failure to meet its duty to consult
would not only breach section 35 of the Constitution Act but also Part 5
of the Act.
[59]
The Respondents
submit that the Applicants’ argument is misplaced since the Minister’s decision
is not the subject of this judicial review application. They suggest that this
argument would more properly have been raised in application T-1379-05.
[60]
The Respondents
also contend that the duty to consult is not a constitutional duty, but rather
a duty that is grounded in the honour of the Crown (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 16). In the
Respondents’ argument, the duty to consult is best characterized as an
“obligation” of the Crown rather than a “right” in the same vein as substantive
rights under the Charter. Indeed, in Haida the Supreme Court did
not characterize this duty as a substantive right in spite of the fact that the
First Nations sought this characterization.
[61]
The Respondents
submit that the Applicant’s argument that Parliament presumed to have intended
its law to conform to constitutional principles and accordingly the duty to
consult should be read into the Act, is flawed. The Respondents contend that
the Applicants are attempting to add a new provision into the Act. The
Respondents maintain that the principles of statutory construction do not
permit a “reading in” or the addition of provisions. A court cannot rewrite
legislation to incorporate a term that was not intended by Parliament.
[62]
Further, the
Respondents argue that the Ministers have final decision-making authority and,
in this instance, the Ministers recommended the land use permit be issued with
modifications and advised that the duty to consult had been met. The
Respondents maintain that the Board has no statutory authority to review
ministerial action. Sections 101.1 and 102 of the Act set out the mandate and
jurisdiction of the Land and Water Board, which does not include the power to
review the decision-making process of the Ministers:
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101.1 (1) The objectives of
the Board are to provide for the conservation, development and utilization of
land and water resources in a manner that will provide the optimum benefit
generally for all Canadians and in particular for residents of the Mackenzie
Valley.
(2) The objectives of a
regional panel referred to in subsection 99(2) are to provide for the
conservation, development and utilization of land and water resources in a
manner that will provide the optimum benefit for residents of its management
area and of the Mackenzie Valley and for all Canadians.
(3) The objectives of the
regional panel referred to in subsection 99(2.1) are to provide for the
conservation, development and utilization of land and water resources in a
manner that will provide the optimum benefit generally for all Canadians and
in particular for residents of its management area.
102. (1) The Board has
jurisdiction in respect of all uses of land or waters or deposits of waste in
the Mackenzie Valley for which a permit is required under Part 3 or a licence
is required under the Northwest Territories Waters Act, and for that purpose
the Board has the powers and duties of a board established under Part 3,
other than powers under sections 78, 79 and 79.2 to 80.1, as if a reference
in that Part to a management area were a reference to the Mackenzie Valley,
except that, with regard to subsection 61(2), the reference to management
area continues to be a reference to Wekeezhii.
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101.1 (1)
L’Office a pour mission d’assurer la préservation, la mise en valeur et
l’exploitation des terres et des eaux de la façon la plus avantageuse
possible pour tous les Canadiens et, en particulier, pour les habitants de la
vallée du Mackenzie.
(2) Les
formations régionales de l’Office visées au paragraphe 99(2) ont pour mission
d’assurer la préservation, la mise en valeur et l’exploitation des terres et
des eaux de la façon la plus avantageuse possible pour les habitants de leur
zone de gestion, ceux de la vallée du Mackenzie et tous les Canadiens.
(3) La
formation régionale de l’Office visée au paragraphe 99(2.1) a pour mission
d’assurer la préservation, la mise en valeur et l’exploitation des terres et
des eaux de la façon la plus avantageuse possible pour tous les Canadiens et,
en particulier, pour les habitants de sa zone de gestion.
102. (1)
L’Office a compétence en ce qui touche toute forme d’utilisation des terres
ou des eaux ou de dépôt de déchets réalisée dans la vallée du Mackenzie pour
laquelle un permis est nécessaire sous le régime de la partie 3 ou aux termes
de la Loi sur les eaux des Territoires du Nord-Ouest. Il exerce à cet égard
les attributions conférées aux offices constitués en vertu de cette partie,
exception faite toutefois de celles prévues aux articles 78, 79 et 79.2 à
80.1, la mention de la zone de gestion dans les dispositions pertinentes de
cette partie valant mention de la vallée du Mackenzie, sauf au paragraphe
61(2) où cette mention continue de viser le Wekeezhii.
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[63]
The Respondents
note that the Land and Water Board in its September 22, 2005 decision
acknowledged the limits of its jurisdiction:
The
Responsible Ministers have advised the Board that the Crown’s legal duty to
consult the KTFN has been met in these particular circumstances. The [Mackenzie
Valley Land Use Regulations] do not provide any authority to further delay the
issuance of the amendments to the land use permit, consequently the Board
decided to issue the amended water license and land use permit subject to the
measures approved by the federal Minister and the terms and conditions included
in the license and permit.
[64]
It is accepted
that since the judge’s task is to interpret the statute, not to create it, as a
general rule, interpretation should not add to the terms of the law.
Legislation is deemed to be well drafted and to express completely what the
legislator wanted to say. See R. v. McIntosh, [1995] 1 S.C.R. 686 at
para. 26. Further, the “Charter values” interpretive principle, whereby
interpretations that tend to promote Charter principles and values are to be
preferred over those that do not, can only receive application in circumstances
of genuine ambiguity, that is to say where a statutory provision is subject to
differing, but equally plausible, interpretations. See Bell Express vu Limited Partnership v.
Rex, 2002 SCC 42 at
para. 62.
[65]
In my view, it is
not necessary to resort to the “Charter values” interpretive principle
in the circumstances, nor is it necessary to decide whether the Crown’s duty to
consult is a constitutional duty which lends itself to the application of the
said principle. Here, the language of the Act is clear and unambiguous. There
is no need to rely upon interpretive principles.
[66]
Section 114 of
the Act sets out the purpose of Part 5 which is “to establish a process
comprising a preliminary screening, an environmental assessment and an
environmental impact review in relation to proposals for development,...” to,
among other objectives, “ensure that the concerns of the Aboriginal people and
the general public are taken into account in that process.” The requirements of
Part 5 are not directed to a Board or to the Ministers. Rather, they are aimed
at the process itself that must ensure the concerns of the Aboriginal people
are taken into account.
[67]
In T-1379-05,
although the Crown in right of Canada followed
the consult to modify process provided for under the Act, I nonetheless found
that the Crown has failed to discharge its obligation to consult with the
aboriginal community. I determined that the consult to modify process allowed
for fundamental changes to be made to important recommendations without input
from the Applicants. I found, as a result, that it could not be said that the
consult to modify process was conducted with the genuine intention of allowing
the KTFN’s concerns to be integrated into the final decision. This is the same
process referred to in section 114 of the Act.
[68]
Inherent in the
Crown’s duty to consult is the obligation to ensure that the concerns of the
Aboriginal people are taken into account. In my view this is the central
purpose of the obligation. By failing to meet its duty to consult and
accommodate in the circumstances of this case, the Crown cannot, therefore, be said
to have taken into account the concerns of the Aboriginal people, as required
by section 114 of the Act, before making its decision to approve the Extension
Project. Any other conclusion would not be consistent with my earlier finding.
Whether the duty to consult is characterized as constitutional or not is immaterial
in these circumstances, since the obligation need not be read in. Section 114
of the Act expressly provides that the process must ensure that the concerns of
the Aboriginal people be taken into account. It follows that this central
requirement of Part 5 of the Act cannot be said to have been complied with.
[69]
As noted earlier,
the Respondents argue that as the Ministers have final decision-making
authority the Board has no authority to review ministerial decision-making.
While this may be so, the argument cannot serve to cure a fundamental flaw in
the process. The Crown’s efforts in respect to the duty to consult pursuant to
the process under the Act were found to be inconsistent with the honour of the
Crown. It matters not, therefore, whether the Board had the authority to
question the process followed by the Responsible Ministers. What matters is
that the duty was breached and the concerns of the Aboriginal people were not
taken into account.
[70]
The Board’s
authority to issue the LUP is governed by the Act. Once it is established that
the requirements of Part 5 have not been complied with, then the clear language
of section 62 of the Act is engaged and the Land and Water Board “may not issue
a licence, permit or authorization for the carrying out of a proposed
development”. In the result, the impugned LUP must be set aside.
[71]
In this
application the Applicants essentially seek a remedy that results in the
amended LUP being set aside. Since my above finding is determinative, I find it
unnecessary to deal with the other issues raised by the Applicants in this
application.
5. Remedy
[72]
Since the amended
LUP was improperly issued, section 62 of the Act requires that it be set aside.
This result is a consequence of the Crown’s failure to meet its duty to consult.
As I determined in my reasons for order in application T-1379-05, the Crown
breached its duty to consult in relation to the “consult to modify” process
provided for in the Act. In that decision, I ordered the parties to engage in a
process of meaningful consultation, in accordance with my reasons, with a view
of taking into account the concerns of the KTFN and, if necessary, address
those concerns.
[73]
As the Supreme
Court of Canada observed in Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73, the nature of the duty to consult lies closer to the
aim of reconciliation at the heart of Crown-Aboriginal relations. Given the aim
of reconciliation which underlies the duty to consult and the resulting
desirability of having the outstanding issues in such a complex undertaking
resolved between the parties, an immediate order quashing the LUP may be
counter-productive to the overall process. The effect of such an immediate order
would essentially be to bring a halt to the project. I question whether such a
result is in the best interest of the parties, including the Applicants.
[74]
In the
circumstances, I would invite the parties to address whether a stay of the
order quashing the LUP for a limited period of time is desirable in order permit
them to engage in the consultation process. To that end, I will afford the
parties an opportunity to submit for my consideration a draft order to give
effect to my above reasons and conclusions.
[75]
Failing agreement
between the parties, the Applicants are directed to serve and file written
submissions, not exceeding 10 pages, regarding the terms of the draft order by
August 15, 2007. The Respondents shall serve and file responding
submissions, not exceeding 10 pages, by August 31, 2007, and any reply
submissions by the Applicants shall be served and filed by September 7, 2007
and be limited to 5 pages.
6. Conclusion
[76]
For the above
reasons, this application will be allowed by reason of the Crown’s failure to meet
its duty to consult and to take into account the concerns of the Aboriginal
people before the Extension Project was approved. In the result, the
requirements of Part 5 of the Act have not been complied with. By operation of
section 62 of the Act, amended land use permit MV2002A0046 should not have been
issued by the Land and Water Board and will consequently be set aside.
[77]
The parties will
have an opportunity to address the question of whether the effect of an order
quashing the LUP should be stayed for a period of time to allow for
consultation and to make submissions on a draft order to give effect to my
above reasons and conclusions.
“Edmond P. Blanchard”
Ottawa, Ontario
July 20, 2007
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