Date: 20080623
Docket: A-349-07
Citation: 2008 FCA 222
CORAM: SHARLOW
J.A.
PELLETIER J.A.
RYER J.A.
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR CLIFTON ISNANA,
COUNCIL CURTIS WHITEMAN and COUNCILLOR
DONALD WAJUNTA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Applicants
and
ATTORNEY GENERAL FOR CANADA,
ENBRIDGE PIPELINES (WESTSPUR) INC.,
ENCANA CORPORATION
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This is an
application for judicial review of a decision of the National Energy Board (OH-2-2007)
communicated to the applicants on June 28, 2007. That decision approved the application
of the respondent Enbridge Pipelines (Westspur) Inc. (“Enbridge”) for a certificate
of public convenience and necessity under section 52 of the National Energy
Board Act, R.S.C. 1985, c. N-6, for a project called the “Alida to Cromer
Capacity Expansion Project” (the “Project”). The applicants, Standing Buffalo
Dakota First Nation and its members (collectively, “Standing Buffalo”), intervened
in the proceedings before the NEB to oppose the Enbridge
application, but without success. Standing Buffalo argues that this Court
should quash the NEB decision because Standing Buffalo has a credible claim of
Aboriginal title to the land on which the Project is located and the NEB
decision was made in breach of their right to be consulted and accommodated in
respect of their interest in that land, and because the NEB erred in failing to
compel the Government of Canada to appear at the hearing to address the issue
of consultation.
[2]
Enbridge
disputes these arguments, and further argues that this Court is without
jurisdiction to consider Standing Buffalo’s application for judicial review.
For the reasons that follow, I have concluded that Enbridge is correct on the
question of jurisdiction, and I would dismiss this application on that basis.
Statutory scheme
[3]
The
decision of the NEB was made under section 52 of
the National Energy Board Act, which reads in relevant part as follows:
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52. The Board may, subject to the approval of the
Governor in Council, issue a certificate in respect of a pipeline if the
Board is satisfied that the pipeline is and will be required by the present
and future public convenience and necessity and, in considering an application
for a certificate, the Board shall have regard to all considerations that
appear to it to be relevant […].
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52. Sous réserve de l’agrément du gouverneur en conseil,
l’Office peut, s’il est convaincu de son caractère d’utilité publique, tant
pour le présent que pour le futur, délivrer un certificat à l’égard d’un
pipeline; ce faisant, il tient compte de tous les facteurs qu’il estime
pertinents […].
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Facts
[4]
Enbridge
owns and operates the Enbridge Westspur pipeline system. That pipeline system transports
crude oil received from gathering systems and from truck terminals. It also
transports natural gas liquids from a gas processing plant in Steelman, Saskatchewan to the Enbridge Pipelines
Inc. terminal at Cromer,
Manitoba, which
interconnects to the Enbridge Pipeline Inc. mainline.
[5]
This case
deals with the 60 kilometre portion of the Enbridge Westspur pipeline located between
Alida, Saskatchewan and Cromer, Manitoba. The purpose of the Project
was to increase the annual crude oil transportation capacity over those 60
kilometres from 25,000 cubic metres per day to 29,900 cubic meters per day. The
right of way for the original Enbridge pipeline between Alida and Cromer was 15
meters wide. Beginning in 1956, there were two Enbridge pipelines operating
within that right of way, a 12 inch pipeline for natural gas liquids and a 16
inch pipeline for crude oil. The Project would widen the right of way by a
further 20 meters, add a new 6 inch pipeline for liquid natural gas, and
convert the existing 12 inch liquid natural gas pipeline so that it would be
used for the transportation of crude oil.
[6]
In January
of 2007, Enbridge applied for a certificate of public convenience and necessity
under section 52 of the National Energy Board Act authorizing the
construction and operation of the Project. The Board decided to proceed by way
of oral hearing. Enbridge informed a number of Aboriginal groups about the
Project and invited them to participate in discussions and ask questions.
[7]
In
determining the scope of what has been referred to as Enbridge’s “Aboriginal
consultation program”, Enbridge considered the fact that the Project involved
60 kilometres of new pipeline adjacent to an existing right of way, the fact
that 94% of the additional right of way is freehold land, and the fact that
during the 50 years of the operation of the pipelines on the existing pipeline
right of way, it had never been made aware of any Aboriginal claim, interest or
uses on or along the right of way. Based on those guidelines, Enbridge
contacted First Nations and Métis groups within a 160 kilometre corridor
centered on the existing right of way, including the Assembly of Manitoba
Chiefs, the Manitoba Métis Federation, the Federation of Saskatchewan Indian
Nations, the Métis Nation – Eastern Region, Zone III, the Canupawakpa Dakota
First Nation, the Sioux Valley Dakota Nation, the Birdtail Sioux First Nation
and the White Bear First Nation. Enbridge also contacted the Manitoba and Saskatchewan Regional
Offices of Indian and Northern Affairs Canada, and was informed that there are
no current land claims negotiations going on in the area of the Project.
[8]
During
this process Enbridge did not contact Standing Buffalo. Based on the facts
summarized above, I assume that was because Standing Buffalo’s current home
community, which is a reserve near Fort Qu’Appelle, Saskatchewan, was outside
the 160 kilometre corridor centred on the existing right of way, and because
Enbridge was not aware that Standing Buffalo had asserted a claim of Aboriginal
title that included the land on which the Project was located. It appears that the
Standing Buffalo reserve is approximately 200 kilometres from the Project area.
[9]
On
February 22, 2007, Standing Buffalo filed an application for intervener status
in the NEB proceedings to oppose the
Enbridge application on the basis of Standing Buffalo’s allegation of a
credible claim to Aboriginal title to lands in the relevant area, and its
allegation that the Crown had failed to consult with Standing Buffalo in
relation to the Enbridge application. This was the first indication to Enbridge
that Standing Buffalo had an interest in the Project. Enbridge provided
Standing Buffalo with a copy of its application and tried without success to
meet with the Chief and Council of Standing Buffalo before the hearing.
[10]
Standing
Buffalo was granted intervener status and was permitted to submit evidence in
the NEB proceedings, partly in the
form of affidavits and partly in the form of the oral history evidence of Standing
Buffalo elders. Standing Buffalo asserts that its evidence
establishes the following facts:
(A)
The Dakota
people, including Standing Buffalo, have a credible Aboriginal land claim to
the area that included the land on which the Project was located.
(B)
The Dakota
people, including Standing Buffalo, have never entered into a treaty with the
Crown like the numbered treaties relied upon by the Crown in other cases to
establish the extinguishment of Aboriginal title.
(C)
The Crown
and the Dakota people, including Standing Buffalo, negotiated for seven years
with a view to entering into a treaty, but Canada had broken off the negotiations in bad
faith, failing to provide an explanation of its position.
(D)
The Crown
failed to consult with or even inform Standing Buffalo about the Project.
[11]
The
submissions of Standing Buffalo in the NEB proceedings also expressed a specific
concern about the potential of archaeological finds or disturbances in the area
of the Project, as earlier finds of burial sites, pottery, pipes and other
objects in the general geographic area of the Project had been identified as
Dakota.
[12]
The
Government of Canada was not represented at the hearing, did not present evidence
and made no submissions. Standing Buffalo
argued that the NEB should compel Canada
to present evidence and explain why it had failed to consult with Stand
Buffalo. The NEB did not compel the Government
to present evidence and did not address this point in its reasons.
[13]
The NEB rejected the opposition of Standing
Buffalo and concluded that the Project is and will be required by the present
and future public interest and necessity. The NEB issued a certificate of public
convenience and necessity subject to certain conditions, and recommended to the
Governor in Council that the certificate of public convenience and necessity be
approved. The approval of the Governor in Council was obtained on September 5,
2007 (PC 2007-1234).
[14]
One of the
conditions to the certificate was intended to address the concern expressed by
Standing Buffalo in relation to the discovery
of archaeological or heritage resources prior to or during construction. If
there was such a discovery, Enbridge was required to cease work immediately at
the location of the discovery, notify the responsible provincial authorities,
and resume work only with the approval of those provincial authorities.
[15]
I
summarize as follows the reasons given by the NEB for not accepting the submission of
Standing Buffalo that the Enbridge application should not proceed before the
Crown had entered into appropriate consultations with Standing Buffalo:
(A)
The steps
taken in this case were sufficient to provide Standing Buffalo with relevant
information about the Project, and to accommodate and facilitate their
participation in the NEB hearing.
(B)
Most of
the evidence provided by Standing Buffalo was of little relevance to the issues
before the NEB. It is not part of the mandate of the NEB to determine contested issues of
Aboriginal title (a point which all parties conceded).
(C)
With
respect to Standing Buffalo’s objection to Enbridge’s application, the NEB took into consideration the following
facts:
i)
The
Project is located on a right of way adjacent to a right of way that has been
in existence for fifty years.
ii)
During
that fifty year period, Enbridge had not been informed of any First Nation
claim over any portion of the right of way.
iii)
Standing Buffalo provided no evidence of any
current traditional use of property in the vicinity of the Project.
iv)
Standing Buffalo “has no legally proven rights
in the area and their claim is not recognized by the Government of Canada”, and
even if that were not so, it provided no evidence of the specific impacts the
Project could have on its interests, except for possible archaeological
discoveries. Standing Buffalo’s concern about the
possibility of archaeological discoveries would be accommodated by an
appropriate condition.
[16]
On July
20, 2007, Standing Buffalo applied to the NEB for a review of its decision to issue
the section 52 certificate to Enbridge. The NEB dismissed that application on December
6, 2007. On July 26, 2007, Standing Buffalo filed this application for judicial
review pursuant to paragraph 28(1)(f) of the Federal Courts Act,
seeking a judgment of this Court quashing the decision of the NEB to issue the
section 52 certificate to Enbridge. On the same day, Standing Buffalo applied
to the NEB for a stay of its decision.
The NEB dismissed the stay motion on
September 11, 2007.
[17]
On July
27, 2007, Standing Buffalo filed a motion under subsection 22(1) of the National
Energy Board Act for leave to appeal the NEB’s decision. The material filed in the
leave application did not mention that this application for judicial review was
pending in respect of the same decision. The grounds of appeal in the leave
application are substantially the same as the grounds of judicial review in
this case, except that they are stated in a different order. Leave to appeal
was denied on September 21, 2007. No written reasons were given.
Issues
[18]
In my view,
this application raises three principal issues:
(A)
Does this
Court have jurisdiction to consider this application, in light of subsection
22(1) of the National Energy Board Act and section 18.5 and subsection
18(2) of the Federal Courts Act?
(B)
If this
Court has jurisdiction, should it dismiss Standing Buffalo’s application for
judicial review on the basis of the doctrines of res judicata or issue
estoppel because the issues raised are substantially the same as the issues
raised in Standing Buffalo’s unsuccessful application for leave to appeal?
(C)
If this
Court considers this application on the merits, should the decision of the NEB
to issue the section 52 certificate be quashed because the NEB failed to compel
the attendance of the Crown, or because there was a breach of the Crown’s
obligation to consult Standing Buffalo and to accommodate their interests?
Discussion
[19]
Enbridge
argues that this Court has no jurisdiction to consider this application for
judicial review, given section 18.5 and subsection 28(2) the Federal Courts
Act and subsection 22(1) of the National Energy Board Act. Standing Buffalo argues that this application
falls squarely within this Court’s jurisdiction by virtue of paragraph 28(1)(f)
and is not barred by the provisions relied upon by Enbridge.
[20]
The NEB is subject to judicial review by this
Court rather than the Federal Court. That is the result of the combined
operation of section 18, paragraph 28(1)(f) and subsection 28(3) of the Federal
Courts Act, R.S.C. 1985, c. F-7. Those provisions read as follows:
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18. (1) 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.
[…]
28. (1) The
Federal Court of Appeal has jurisdiction to hear and determine applications
for judicial review made in respect of any of the
following federal boards, commissions or other tribunals:
[…]
(f) the National Energy
Board established by the National Energy Board Act
[…]
28. (3) If the Federal Court of Appeal has jurisdiction to
hear and determine a matter, the Federal Court has no jurisdiction to
entertain any proceeding in respect of that matter.
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18. (1) 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.
[…]
28.
(1) La Cour d'appel fédérale
a compétence pour connaître des demandes de contrôle judiciaire visant les
offices fédéraux suivants :
[…]
f) l’Office national de l’énergie constitué par la Loi
sur l’Office national de l’énergie […].
[…]
28. (3) La Cour fédérale ne peut être saisie des questions
qui relèvent de la Cour d'appel fédérale.
|
[21]
However,
the jurisdiction of this Court in applications for judicial review is limited
in certain circumstances by the combined operation of section 18.5 and
subsection 28(2) of the Federal Courts Act, which read in relevant part
as follows:
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18.5. Despite
sections 18 and 18.1, if an Act of Parliament expressly provides for an
appeal to […] the Federal Court of Appeal […] from a decision or an order of
a federal board, commission or other tribunal made by or in the course of
proceedings before that board, commission or tribunal, that decision or order
is not, to the extent that it may be so appealed, subject to review or to be
restrained, prohibited, removed, set aside or otherwise dealt with, except in
accordance with that Act.
|
18.5. Par
dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit
expressément qu'il peut être interjeté appel, devant […] la Cour d'appel
fédérale […] d'une décision ou d'une ordonnance d'un office fédéral, rendue à
tout stade des procédures, cette décision ou cette ordonnance ne peut, dans
la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle,
de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre
intervention, sauf en conformité avec cette loi.
|
|
[…]
|
[…]
|
|
28. (2) Sections
18 to 18.5, except subsection 18.4(2), apply, with any modifications that the
circumstances require, in respect of any matter within the jurisdiction of
the Federal Court of Appeal under subsection (1) and, when they apply, a
reference to the Federal Court shall be read as a reference to the Federal
Court of Appeal.
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28.
(2) Les articles 18 à
18.5 s'appliquent, exception faite du paragraphe 18.4(2) et compte tenu des
adaptations de circonstance, à la Cour d'appel fédérale comme si elle y était
mentionnée lorsqu'elle est saisie en vertu du paragraphe (1) d'une demande de
contrôle judiciaire.
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[22]
Subsection
22(1) of the National Energy Board Act provides that a decision or order
of the NEB may be appealed to this
Court, with leave of this Court, on a question of law or jurisdiction. Subsection
22(1) reads as follows:
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22.
(1) An appeal lies from a decision or order of the Board to the Federal Court
of Appeal on a question of law or of jurisdiction, after leave to appeal is
obtained from that Court.
|
22. (1) Il peut être interjeté appel devant la Cour d’appel fédérale,
avec l’autorisation de celle-ci, d’une décision ou ordonnance de l’Office,
sur une question de droit ou de compétence.
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[23]
Enbridge
argued, primarily on the basis of Leroux v. Transcanada Pipelines Ltd.
(1996), 198 N.R. 316, [1996] F.C.J. No. 622 (F.C.A.), that because of section
18.5 and subsection 28(2) of the Federal Courts Act, the only way
Standing Buffalo can challenge the decision of the NEB to issue the section 52
certificate to Enbridge is by an appeal under subsection 22(1) of the National
Energy Board Act. Standing Buffalo argued that this
interpretation cannot be correct because it would deprive paragraph 28(1)(f)
of the Federal Courts Act of any meaning. Standing Buffalo also
suggested that subsection 22(1) of the National Energy Board Act is
intended to permit appeals on issues that are within the statutory mandate and
special expertise of the NEB (such as the regulation of pipelines) and section
18.5 of the Federal Courts Act is intended to bar applications for
judicial review on issues of that kind, but it is not intended to bar applications
for judicial review based on general public law principles or, as in this case,
principles of Aboriginal law.
[24]
I agree
with Enbridge that this Court has no jurisdiction to entertain this application
for judicial review. In my view, this conclusion is compelled by section 18.5
and subsection 28(2) of the Federal Courts Act. Standing Buffalo, as an intervener in the NEB proceedings, was entitled to have recourse
to subsection 22(1) of the National Energy Board Act to challenge the
decision of the NEB. Despite the requirement for leave and the limitation of
the grounds of appeal to questions of law or jurisdiction, the existence of the
statutory right of appeal deprives this Court of jurisdiction to consider
Standing Buffalo’s application for judicial review of the NEB’s decision.
[25]
I do not accept
the submission of Standing Buffalo that this interpretation leaves no scope for
the operation of paragraph 28(1)(f) of the Federal Courts Act. A
person who is directly affected by a decision of the NEB but does not have the right
to appeal may bring an application for judicial review (see, for example, Union
of Nova Scotia Indians v. Maritimes and Northeast Pipeline Management Ltd.
(1999), 243 N.R. 205, [1999] F.C.J. No. 242 (F.C.A.), and Arthur v. Canada
(Attorney General) (1999), 254 N.R. 136, [1999] F.C.J. No. 1917 (F.C.A.)).
Also, a person seeking relief against the NEB in a matter that does not involve
a challenge to a decision or order of the NEB may do so by means of an application for
judicial review.
[26]
Nor do I
accept that subsection 22(1) of the National Energy Board Act is not
broad enough to include appeals based on the principles of public law or
Aboriginal law. In my view, the right of appeal in subsection 22(1) of the National
Energy Board Act may be based on any question of law or jurisdiction, and
is not limited to legal issues relating to the regulation of pipelines or other
technical matters within the NEB’s mandate.
[27]
I conclude
that this Court has no jurisdiction to consider Standing Buffalo’s application
for judicial review. That is a sufficient basis for dismissing this
application. I express no opinion on the issues of res judicata or issue
estoppel raised by Enbridge, or on the substantive issues raised by Standing
Buffalo.
Conclusion
[28]
I would
dismiss this application with costs.
“K.
Sharlow”
“I
agree
J.D.
Denis Pelletier J.A.”
“I
agree
C. Michael Ryer J.A.”
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