Date: 20080103
Docket: T-1996-05
Citation: 2008 FC 3
Ottawa, Ontario, January 3, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
CHIEF LLOYD CHICOT suing on
his own behalf
and on behalf of all Members of the
Ka'a'Gee
Tu First National and the KA'A'GEE TU
FIRST NATION
Applicants
and
MINISTER OF INDIAN AND
NORTHERN AFFAIRS
CANADA and PARAMOUNT RESOURCES LTD.
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is a motion by
the Applicants to amend the Amended Notice of Application to include Land Use
Permit (LUP) MV2006A0030 issued to Paramount Resources Ltd. (Paramount) on December 21, 2006 by the Mackenzie Valley Land and Water Board (the Board).
[2]
In my decision, dated
July 20, 2007, as a consequence of my finding on the same day that the Crown
had failed to discharge its duty to consult with and accommodate the Ka’a’Gee
Tu First Nation, I determined that LUP MV2002A0046, the subject matter of the
underlying application, was to be set aside.
[3]
Further, in my
reasons for decision, I stressed the desirability of having the outstanding
issues in such a complex undertaking resolved between the parties. I remarked
that such an approach was consistent with the teachings of the Supreme Court of
Canada in Haida Nation v. British
Columbia (Minister of
Forests), 2004 SCC 73,
which emphasizes that reconciliation is the heart of the Crown’s duty to
consult. To that end, I invited the parties to address whether a stay order
quashing LUP2002A0046 for a limited time was desirable in the circumstances.
Such a stay would permit the parties to engage in a consultation process
without bringing the entire project to a standstill.
[4]
On August 13, 2007,
the Respondent notified the Court that through inadvertence, the parties had
failed to advise the Court that LUP MV2002A0046 had expired on November 30,
2006.
[5]
The Applicant
subsequently filed the within motion seeking to have LUP MV2006A0030 added to
the Amended Notice of Application, the underlying proceeding.
[6]
The Applicant
contends that the activities provided for under LUP MV2002A0046 and those
proposed to be undertaken in LUP MV2006A0030 are essentially the same. It is
alleged that the amendment is no more than a “housekeeping matter” and allowing
the amendment would cause no prejudice to the Respondent. Moreover, the
Applicants note that throughout the process leading to the issuance of LUP
MV2006A0030, the term “renewal” was used consistently by all concerned. This
suggests, according to the Applicants, that LUP MV2002A0030 sought to be included
in the application by this motion is no more than a renewal of LUP MV2002A0046.
[7]
The Respondents raise
a number of objections to the amendment sought. I summarize below their main
objections.
i.
The Respondents submit
that LUP MV2006A0030 is not a renewal of the amended LUP MV2002A0046 and that
there are substantial differences between the two. It is argued that an
application for a new permit or a renewal must undergo a distinct process
pursuant to the Act and the regulations enacted thereunder. Moreover, in its
October 6, 2006 application, Paramount had expressly noted that it was applying
for a new LUP.
ii.
The Respondents contend
that the scope of the LUP MV2006A0030 differs substantially from the LUP that is
the subject of the judicial review. In fact, Paramount’s
October 6, 2006 application sought a land use permit and water license dealing
with 9 new oil and gas wells while LUP MV2006A0030 authorized five new gas
wells. Although the activities under both permits may be similar, the
Respondents contend that the scope of LUP MV2006A0030 is different and as a
result, should not be considered a renewal of LUP MV2002A0046.
iii.
The Respondents submit
that the present case involves separate and distinct decision-making processes.
They claim that the Reasons for Decision that accompany permit MV2006A0030
reveal that the Board considered not only the material available to it when it
made the decision to approve the now expired permit but also new relevant
information. This would indicate that a new assessment was made which went beyond
a mere renewal.
[8]
In my view, the
Respondents have raised valid concerns about allowing the motion at this late
stage of the proceedings. Not only has all of the evidence been adduced,
arguments completed, but final reasons for decision have issued. Submissions
made and arguments advanced at the hearing made no reference to LUP
MV2006A0030. More importantly, the process which led the Board to approve LUP
MV2006A0030 was not before the Court in the underlying application. It is
speculative at best to suggest that all material evidence to that process was
before the Court. Moreover, we do not know what other factors were before the
Board in approving LUP MV2006A0030. The record may well be incomplete. I am
satisfied that LUP MV2006A0030, issued on December 21, 2006, is not simply a
renewal of the now expired LUP and that its issuance arguably involved a
different process. Without re-opening the underlying application and receiving
new evidence and submissions, the Court would be speculating on such matters.
[9]
The amendment sought
extends well beyond that which could be labelled “a housekeeping mater”.
Allowing the amendment in such circumstances would require that the Court
re-visit its reasons for order. Given the finality of the conclusions reached
in the issued reasons and the limited scope of what remained to be considered
by the Court, it would be unfair to the Respondents and inappropriate at this
late stage to allow the amendment.
[10]
For the above
reasons, the motion to amend will be dismissed.
[11]
Since LUP
MV2002A0046, which was the subject matter of the underlying application, is now
expired, there is little use receiving submissions on whether I should stay my
order quashing the said permit. Before exercising my discretion in deciding
whether there remains a live controversy in the underlying application, I will
afford the parties an opportunity to make submission on the issue of mootness
and the nature of the order that should be issued. To that end, the parties
shall have until January 25, 2008, to serve and file their submissions on the
draft order. The parties may serve and file their reply, if any, no later than February
5, 2008.
ORDER
THIS COURT ORDERS that
1.
The motion to amend
is dismissed.
2.
The Respondents shall have their costs.
3. The Parties shall,
no later than January 25, 2008, serve and file their submissions on the draft
order not to exceed ten pages respectively. The parties also may serve and file
their reply submissions, if any, not to exceed five pages respectively, no
later than February 5, 2008.
“Edmond P. Blanchard”
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