Docket: A-386-14
Citation: 2016 FCA 219
|
CORAM:
|
GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
|
|
BETWEEN:
|
|
TSLEIL-WAUTUTH
NATION
|
|
Appellant
|
|
And
|
|
NATIONAL ENERGY
BOARD,
|
|
TRANS MOUNTAIN
PIPELINE ULC, and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondents
|
REASONS FOR
JUDGMENT
GAUTHIER and GLEASON JJ.A.
[1]
The Tsleil-Waututh Nation (TWN) appeals from three
interlocutory decisions of the National Energy Board (NEB) made pursuant to
subsection 22(1) of the National Energy Board Act, R.S.C., 1985, c. N-7
(NEBA).
I.
Overview
[2]
These three decisions were made in the context
of the NEB’s review of an application filed by Trans Mountain Pipeline ULC (TM)
for the construction of a project which, broadly speaking, consists of:
i)
An extension of its existing TM pipeline system,
which will include completing a twinning of the existing pipeline in Alberta
and British Columbia with about 987 km of new buried pipeline as well as the
reactivation of 193 km of existing pipeline;
ii)
New and modified facilities including such installations
as several pump stations; and
iii)
Tanks and additional tanker loading facilities
at the existing Westridge Marine Terminal (WMT) in British Columbia;
(together, the
Project).
[3]
The stated purpose of the Project is to enable Canadian
producers to export oil (light and crude oil including diluted bitumen) from
the WMT to foreign markets. Among other things, the Project, if completed, will
result in increased marine shipping activities, particularly in the Burrard
Inlet, raising the number of tanker calls from 5 per month to 34 per month,
depending on market conditions.
[4]
The Tsleil-Waututh are also known as the people
of the Burrard Inlet. Their traditions and way of life are largely centered on
the Inlet. About 500 Tsleil-Waututh live in the TWN primary community (Indian
Reserve #3) on the North Shore of Eastern Burrard Inlet, only a few kilometres
from the WMT.
[5]
It is not disputed that the Crown owes the TWN a
duty to consult in respect of the Project within the meaning of Haida Nation
v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.
Indeed, it appears on the basis of its Preliminary Depth of Consultation
assessment that the Crown concluded that the TWN was entitled to a high level
of consultation in respect of the Project (Affidavit of Mark Youden dated
January 21, 2016, Exhibit A, page 9).
[6]
The NEBA requires that companies apply
for a certificate of public convenience and necessity (CPCN) before
constructing or operating an inter-provincial pipeline, such as that involved
in the Project. To this end, the NEB must, within the strict and short timeline
set out in the NEBA, provide a report to the Minister of Natural
Resources (Minister) for consideration by the Governor in Council (GIC). The
NEB’s report must include a recommendation as to whether a CPCN should be
issued to enable a project to proceed (subsection 52(1) of the NEBA).
[7]
In addition, as the Project involves the construction
of more than 40 kilometres of pipeline other than offshore pipelines, it is a “designated project” as defined in section 2 of the Canadian Environmental Assessment
Act, 2012 (S.C. 2012, c. 19, s. 52) (CEAA 2012) and section 46 of
the Regulations Designating Physical Activities, SOR/2012-147. Pursuant
to subsection 52(3) of the NEBA, the NEB was therefore required to conduct
an environmental assessment (EA) of the Project pursuant to the CEAA 2012.
The NEB’s report submitted to the Minister under the NEBA must therefore
also include the conclusions drawn from its assessment under the CEAA 2012
and its recommendations based on the factors set out in sections 5 and 19 of the
CEAA 2012 (subsection 52(3) of NEBA; subsections 29(1) and 31(1)
of CEAA 2012).
[8]
The decisions under appeal (collectively, the
Decisions) are all dated April 2, 2014. While the parties describe them
somewhat differently in their respective original memoranda, the Decisions may
be described as follows:
i)
A determination that TM’s Project application is
sufficiently complete to proceed to an assessment and a public hearing under the
NEBA (Completeness Decision) (Appeal Book, Volume 1 at pages 16-18);
ii)
A confirmation that the Project is a “designated project” that ought to be assessed under
the CEAA 2012, and setting out the list of factors and scope of factors
to be considered for the purpose of the EA (CEAA 2012 Decision) (Appeal
Book, Volume 1 at pages 300-303); and
iii)
An order detailing the steps and deadlines for
the application assessment process, including the public hearing process
(Hearing Order) (Appeal Book, Volume 1 at pages 31-49).
[9]
On April 2, 2014, the NEB also ruled on 2118
applications filed by persons seeking participatory rights and granted
intervener status to 400 applicants. This included the TWN (one of 73
Aboriginal Groups granted intervener status), various federal government
departments, as well as other governmental authorities such as the City of
Burnaby. This last decision is not on appeal before us.
[10]
As can be seen from their mere descriptions, the
Decisions were issued very early on in the application review process
undertaken by the NEB. TM filed its Project application on December 16, 2013, a
little over three months before the Decisions were issued.
[11]
It is not disputed that the TWN has had the
opportunity to use the NEB process to seek information from TM and various
federal agencies involved. The TWN has also been able to file considerable
evidence, including the final report of its own environmental assessment and
its own expert reports. It has also had the opportunity to present traditional
oral evidence and to make written and oral submissions in respect of all issues
identified by the NEB, including the impact of the increased marine shipping
that would result from the exportation of greater quantities of oil from the WMT
once the Project was completed and Canadian producers used the new facilities.
[12]
There is no evidence before us that the TWN filed
any motion, or raised with the NEB, either orally or in writing at any time
before April 2, 2014, any of the arguments it raises before us.
[13]
As nobody sought a stay of the NEB proceedings,
on May 20, 2016, and as scheduled in its last hearing order, the NEB issued its
final 533-page report (the Report). The Report includes the NEB’s recommendation
that the GIC approve the Project, subject to 157 conditions listed therein. The
NEB found the Project to be in Canada’s public interest despite significant
impacts of increased marine shipping resulting from the future exportation of
oil from the WMT which could not wholly be mitigated.
[14]
It is public knowledge that a three member panel
has started another round of consultation on the Report. That round must be
completed before the GIC makes its decision as to whether or not the NEB should
issue a CPCN to TM or whether the NEB should be required to reconsider some
issues under section 54 of the NEBA. It is expected that the GIC
decision will be made sometime towards the end of December 2016.
[15]
It also appears from the public record of this
Court that, since May 20, 2016, at least seven applications for judicial review
challenging the Report have been filed.
[16]
This Court also very recently issued its
decision in Gitxaala Nation v. Canada, 2016 FCA 187 [Northern Gateway],
which, for the first time, deals extensively with the new statutory regime applicable
to applications for a CPCN like the one filed for the Project. In Northern
Gateway (at paragraphs 120 – 123), this Court indicated that the GIC is the
only decision-maker tasked with approving an application for a project similar
to the one before us.
[17]
For a number of reasons, the hearing of the
appeal before us occurred in stages and the matter was not taken under reserve
until mid-June 2016. The manner in which this case proceeded was unusual.
First, the parties sought and were afforded the opportunity to file additional
memoranda when, during the course of the first hearing, the TWN changed its
position as to the role of the NEB in respect of the Crown’s duty to consult, an
issue at the core of its appeal. According to the TWN, this change in position
was necessary because of recent case law of this Court such as Hamlet of
Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, 474
N.R. 96 (August 17, 2015) [Clyde River] and Chippewas of the Thames
First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, [2016] 3 F.C.R. 96 (October
20, 2015) the latter of which deals with the impact of the Supreme Court of
Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
2010 SCC 43, [2010] 2 S.C.R. 650 [Carrier Sekani]. However, the TWN
could not explain why it was not possible for it to give prior notice of this significant
change of position before the hearing. Such prior notice could have avoided the
delay that resulted from such a change.
[18]
Secondly, by notice of motion filed the day
before the second hearing scheduled on January 22, 2016, the Attorney General
of Canada (AG) sought a three-month adjournment so it could reconsider its
position as part of the newly elected government’s overall review of its
position on Aboriginal law matters. The AG’s request was supported by the TWN,
even though it was known by the parties that the NEB would issue its Report in
May 2016 and that an adjournment would most likely prevent this Court from
deciding this matter prior to the issuance of the Report. The motion for
adjournment, although poorly timed, was granted by this Court (with costs to be
dealt with at a later stage) so as to afford the requested opportunity to foster
reconciliation between First Nations and the Crown. To minimize the
inconvenience and waste of resources that flowed from the adjournment, the Court,
on consent, completed the hearing of all issues on January 22, 2016, with the
exception of those related to the AG’s position on the TWN’s duty to consult arguments
and any subsequent reply by the TWN on this issue.
[19]
On April 11, 2016, the TWN wrote to the Court to
advise that TWN and federal government representatives had met twice and that
it was agreed by the parties that the appeal should be decided on the basis of
the materials filed and submissions made.
[20]
However, the Report was issued on the heels of
this correspondence. Because the Report contained information of likely relevance
to some of the issues before us, the parties were given an opportunity to
comment on its potential impact. They took up the offer to do so, and filed submissions
on the impact of the Report on this appeal, with the last of their submissions being
filed on June 17, 2016.
[21]
For the reasons that follow, we are of the view
that this appeal should be dismissed. This conclusion is without prejudice to the
TWN’s right to raise all the issues it raised before us (with the exception of
the allegation that the Decisions were final and that the NEB breached section
18 of CEAA 2012 before April 2, 2014) in subsequent proceedings that it might
deem necessary to institute to contest the ultimate decision of the GIC in
respect of the Project.
[22]
All the provisions of the NEBA and the CEAA
2012 referred to herein are reproduced in Annex 1 of these Reasons.
II.
Issues
[23]
When drafting reasons, one usually summarizes
the relevant facts before enumerating the issues to be decided by the court.
However, in this particular case, we find it useful to summarize the issues put
to us before turning to an overview of the relevant factual context of the
case. Setting things out in this order will help understand why the parties presented
as relevant a number of facts that both pre-date and post-date April 2, 2014, i.e.,
the date of the Decisions under review.
[24]
The TWN raises four issues before us. They can be
set out as follows:
i)
Does the NEB, when acting as a responsible
authority under the CEAA 2012, have the authority and obligation to
discharge the Crown’s duty to consult? We note that this involves the
interpretation of the relevant statutory framework to confirm whether the CEAA
2012 delegated any procedural obligations in respect of the Crown’s duty to
consult to the NEB. If so, did the Crown, through the NEB, breach its duty to
consult prior to the issuance of the Decisions? If not, and in the alternative,
is the NEB still required under the NEBA or CEAA 2012 to assess
the adequacy of consultation prior to issuing the Decisions, such that it erred
in law by failing to determine whether the Crown had breached its duty to
consult prior to making the Decisions?
ii)
Did the NEB breach its legal obligation to offer
to consult and collaborate with the TWN as a “jurisdiction” within the meaning
of section 18 of the CEAA 2012 prior to making the Decisions?
iii)
Did the NEB breach its duty of fairness to the
TWN as an intervener by failing to obtain its comments in respect of all the
issues raised in the Decisions?
iv)
Did the NEB err in law by failing to include
marine shipping activities that will likely result from the export of oil from
WMT in the designated project description so as to widen the scope of factors
to be examined under the CEAA 2012 (as opposed to under the NEBA)?
[25]
The AG and TM also raised, as preliminary issues,
that the Court should refuse to deal with these questions at this stage because
the TWN failed to put them directly to the NEB and it would thus be
inappropriate for this Court to address them for the first time on appeal. They
also submitted that it would be premature to comment on the adequacy of the
Crown’s consultation in a vacuum at the inception stage of the NEB process,
knowing that the TWN has had the ability to voice all its Project-related concerns
to the NEB and to utilize the NEB process to obtain information from the Crown
and TM.
[26]
Lastly, the parties do not agree as to whether
the issue relating to the inclusion of marine shipping activities as part of
the designated project is a question of law (pure or extricable) or a question
of mixed fact and law (see, for example, TM’s Memorandum of Fact and Law dated January
22, 2015 at para. 59). This is obviously important, considering the limits of
our Court’s jurisdiction pursuant to section 22 of the NEBA, which provides
for the review of questions of law or jurisdiction only. On this issue, the TWN
argues that this Court is bound to deal with all questions before it since
leave to appeal was granted on July 10, 2014 and the matter has thus been
decided (res judicata).
[27]
Although the NEB was a party to the proceedings,
it made it clear that it would not take any position on any of the issues as it
was engaged in the public hearing process when the parties appeared before us. It
was agreed that its role would be limited to providing factual information
about the process so far as deemed appropriate by the Court.
[28]
Finally, the Court must deal with the costs of the
appeal, of two motions (one for the above-discussed adjournment, the other to
add materials to the record) and the costs related to the TWN’s change of
position during the first hearing.
III.
Chronology of Events as Described by the Parties
[29]
The first issues to be examined are the preliminary
ones regarding the appropriateness of this Court’s considering this appeal at
this stage based on the record before the Court. For reasons detailed below, we
are of the view that the appeal should be dismissed based on our determination
of the preliminary issues, without prejudice to the rights of the TWN to again
raise these issues (other than the alleged finality of the Decisions and that
the NEB breached section 18 of CEAA 2012 before April 2, 2014), if it
wishes, at the appropriate time. This conclusion is largely a factual one that
requires appreciation of the way in which matters transpired before the NEB as
well as the overall context.
[30]
The following chronology helps understand the
extent to which each party sought to engage the others, but not all the reasons
why they may, by contrast, have refrained from doing so. The chronology also highlights
the ambiguities of this case as well as the fact that this Court has not had
the benefit of a complete picture of the parties’ discussions and interactions
regarding the extent of Aboriginal consultation undertaken to date relating to
the Project. This picture remains incomplete despite the parties’ filing of some
evidence on facts that occurred both before and after the Decisions were
issued. The chronology may nonetheless offer a helpful aide to any eventual decision-maker
that might be called upon to determine whether the Crown satisfactorily
discharged its duty to consult in this case.
[31]
From the outset, we note that the Court does not
have complete details of when TM’s activities relating to the Project started. Although
there is some reference to a tolling application in some correspondence, it is
unclear how this relates to the matter before us. However, it appears from the
Affidavit of Maximilian Nock dated May 21, 2014 that TM initiated attempts to consult
with the TWN regarding the Project in the fall of 2011 (Appeal Book, Volume 3,
Tab 6). It also appears from the record that the TWN has been represented by experienced
legal counsel since the early days of the Project application, as a number of
letters exchanged by the parties were copied to the TWN’s counsel throughout
the NEB proceedings.
[32]
The portion of the log recording TM’s attempts
to communicate and meet with the TWN before us covers the period from the fall
of 2011 up until September 30, 2013. During that time, there were at least 102
entries of calls and correspondence between the two parties. Indeed, there were
probably more communications as some correspondence between the President of TM
and the TWN is not recorded in the log. However, it appears that these numerous
attempts by TM did not result in any meeting or in any TWN participation in any
study or discussion organised by TM because the TWN refused to do so. This
refusal is somewhat surprising considering that, according to the TWN’s own
environmental Stewardship Policy, proponents were encouraged to contact the TWN
as early as possible in respect of any project that may have an impact on the
First Nation. The following exchange of correspondence sheds some light on why
this is so.
[33]
As early as October 31, 2011, the TWN declined
an offer to meet with the President of TM, indicating that it had decided to
oppose the Project. It is worth reproducing a portion of this letter:
Tsleil-Waututh will no longer participate
bilaterally with you in any processes that may be styled at some point as
“consultation” in respect of this proposed project. We will rely on our network
of relationships with governments and regulators and our own efforts to keep ourselves
informed and to participate in making the public and the stakeholders aware of
the risks associated with the Kinder Morgan and Trans Mountain pipeline
extension proposal.
(Reference to Kinder Morgan in any documents
will be treated hereinafter as a reference to TM, given that Kinder Morgan is
the parent company of TM.)
[34]
Despite this, TM continued its efforts to engage
with the TWN throughout the period covered by the log, as well as after, since
there is evidence of communication of information from TM to the TWN later on.
[35]
Of note is a letter from TM to the TWN dated
March 21, 2012, requesting, among other things, when and how to trigger the TWN
Stewardship Policy to begin consultation with the community (Appeal Book,
Volume 4, Tab 6S). This is relevant in that this is the same policy that will
be referred to later on in the discussion with respect to the TWN’s desire to
be recognized as a “jurisdiction” pursuant to section
18 of the CEAA 2012.
[36]
Sometime in August 2012, TM sent a cheque in the
amount of $250.00 to initiate the Stewardship Policy application process of the
TWN (See TWN letter of December 12, 2012 below).
[37]
In a letter to TM dated December 12, 2012, the TWN
returned TM’s $250 fee (Appeal Book, Volume 4, Tab 6T). In the letter returning
the cheque, the TWN advised TM that the obligation to consult and to
accommodate is the duty of the Crown unless there is an express delegation of
procedural or operational obligations. In its view, there was no such
delegation and such obligation could not be contracted or implicitly delegated
to a third party. The TWN then explained that it viewed the NEB process as
problematic, viz:
…The National Energy Board alleges that they
cannot maintain quasi-judicial objectivity and engage with First Nations in a
bilateral process of consultation. In their July 2008 publication “Consideration
of Aboriginal Concerns in National Energy Board Decisions”, they state that
they rely upon project proponents to carry out the Crown’s responsibility to
share information, identify impacts and propose mitigation. This policy is
totally inconsistent with what we understand is the obligation of the Crown and
Crown agencies…
[38]
The TWN confirmed that it had appealed to
the Minister to establish an appropriate government to government consultation
process and that without such a process it would not engage the Stewardship Policy
for the proposed Project. Again, it reiterated the message conveyed in its
previous letter of October 31, 2011 that it would not participate bilaterally
with TM in any processes that may be styled as “consultation”
and would “continue to seek a commitment from the Crown
to either amend the NEB process or establish an appropriate government to
government consultation process with [it] as in parallel process to the NEB to
achieve meaningful and substantive consultation with respect to the potential
adverse effects associated with the … pipeline expansion proposal” (Appeal
Book, Volume 4, Tab 6T).
[39]
The aforementioned appeal to the Minister refers
to a letter from the TWN to the Minister dated November 5, 2012 (Appeal Book,
Volume 2, Tab 4J). In this letter, the TWN complained about the fact that the
NEB had not granted it intervener status in respect of a tolling application
related to the Project and filed in February, 2011. After reiterating its view
that the Crown could not delegate its responsibility for consultation to a
project proponent and referring to the July 2008 publication from the NEB, the TWN
noted that it could not be relegated to the status of stakeholder as opposed to
a self-governing entity holding constitutionally protected rights and titles. The
TWN added that if, as alleged, the NEB “cannot engage
First Nations on a government to government basis and maintain its
quasi-judicial objectivity, then it is incumbent upon [either the NEB or the
Minister] to establish a parallel process that will ensure that direct input
from First Nations is considered throughout the NEB decision-making process”.
[40]
In his reply dated January 18, 2013, the
Minister indicated that the NEB “is an independent and
arms-length quasi-judicial regulator” and that it would thus be
inappropriate for him to intervene with respect to its decision not to grant
intervener status in relation to the tolling application (Appeal Book, Volume
2, Tab 4K). That said, the Minister strongly encouraged the TWN to participate
in any opportunity to discuss the project with TM, which had launched a broad-based
engagement process. As for the Crown’s duty to consult, the Minister stated
that the Crown would rely, to the extent possible, on the NEB’s review of the TWN’s
application in fulfilling any Crown duty to consult Aboriginal groups. Having
noted that under the NEBA, the NEB is required to consider any issues
and concerns raised by Aboriginal groups, the Minister noted that “the Crown would monitor the adequacy or sufficiency of Aboriginal
consultation efforts throughout the [NEB]’s process” and “urge[d] [the TWN] to participate in any eventual facilities
review process by providing information and by bringing concerns or unresolved
issues to the attention of [TM] and the [NEB]”. Finally, the Minister
noted that the NEB cannot engage in one-on-one discussions outside of its
process, but that the NEB had taken steps to ensure that evidence of the impact
that the proposed Project could have would be in hand, as it expects companies
to engage in consultations as early as possible when planning a project.
[41]
There is no evidence that any of this correspondence
between the TWN and the Minister was provided to the NEB at any relevant time.
At this stage, it is important to note that all correspondence received or sent
by the NEB was posted on its website, for the knowledge of all parties
concerned.
[42]
On or about May 26-27, 2013, TM submitted a
project description to the NEB for the proposed Project. On July 26, 2013, TWN
representatives advised TM that the TWN would oppose the Project.
[43]
On July 29, 2013, the NEB released a “List of Issues” that it would consider in the context
of the public hearings concerning the anticipated project under the NEBA (Appeal
Book, Volume 2, Tab 5A). This list included “the
potential environmental and socio-economic effects of marine shipping
activities that would result from the proposed Project, including the potential
effects of accidents or malfunctions that may occur”. On August 8, 2013,
TM transmitted the said list to the TWN (Appeal Book, Volume 2, Tab 6P).
[44]
On August 12, 2013, the NEB wrote to the TWN in
order to provide it with a summary of the proposed Project, a map of the
proposed pipeline itinerary, information about participant funding, its process
and where to find the details of TM’s consultation program, its outcome and
proposed mitigation measures. The NEB also offered to respond to any question
about its process by phone or at a meeting in the First Nation community. Appended
to the NEB letter was a separate letter from Natural Resources Canada (NRCan)
providing information about the Crown consultation process. It advised
Aboriginal communities concerned that the review process would be managed
through the Government Major Project Management Office (MPMO) initiative. Among
other things, it encouraged Aboriginal groups to communicate any Project-related
concerns to TM and to subsequently convey any unresolved concerns to the NEB, either orally or in writing, in the context of the public hearing process. Again, it
was noted that the Crown would rely on the NEB public hearing process, to the
extent possible, to fulfill any duty to consult owed to Aboriginal groups for
the proposed Project. It ended by advising that any question as to the overall
Crown approach to consultation should be referred to the MPMO while questions
pertaining to the NEB process should be directed to the staff of the NEB.
[45]
It is apparent from the Report that the MPMO and
the NEB staff held several meetings with First Nations who expressed an
interest. There is little evidence about these meetings; nor is there any
evidence that the TWN ever contacted the MPMO or the NEB staff before April 2,
2014 to ask any question about the consultation process of the Crown or about the
NEB process under either the NEBA or CEAA 2012.
[46]
On September 10, 2013, the NEB wrote to TM to
provide it with additional filing requirements relating to the potential
environmental and socio-economic effects of increased marine shipping,
reiterating that although the increased marine shipping to and from the WMT was
not part of the proposed Project, the NEB had determined, as indicated in its List
of Issues, that the potential environmental and socio-economic effect of those
marine shipping activities were relevant to the NEB’s consideration of the
application under the NEBA.
[47]
It is worth mentioning that, according to the
NEB Filing Manual, all proponents of projects that involve an assessment by the
NEB under the NEBA are required to start an in-depth consultation
process much earlier than the filing of their application. In their
consultation, proponents are required to consult with all federal, provincial,
municipal and Aboriginal authorities as well as any other stakeholders and
members of the public that may have concerns about the project. It is also to
be noted that in its Filing Manual, the NEB states that all proponents must
address all the issues set out in section 19 of CEAA 2012, regardless of
whether or not the project is a “designated project”
under that statute.
[48]
On December 16, 2013, TM filed its application
for the Project’s CPCN. Only parts of this application, which covers more than
15,000 pages, have been filed in the record before us. On December 20, 2013,
the NEB updated the webpage on the Canadian Environmental Assessment Registry
internet site (CEARIS) to indicate that the NEB had been designated as the
responsible authority charged with conducting the EA of the designated project.
The update also included a description of the Project as well as a section
dealing with consultation and cooperation with other jurisdictions. It indicated
that pursuant to section 18 of the CEAA 2012, a responsible authority
must offer to consult and cooperate with respect to the EA of the designated project
with any jurisdiction referred to in paragraphs (c) to (h) of the definition of
“jurisdiction” in subsection 2(1) of the CEAA
2012, if that jurisdiction has powers, duties and functions in relation to
the assessment of environmental effects of the designated project. More
importantly, the NEB noted that should any stakeholder be of the opinion that it
is such a jurisdiction and wish to be consulted under section 18, it should
contact the NEB as soon as possible – and at the latest by January 31, 2014 –
describing how it met the definition and outlining its relevant environmental
assessment powers, duties and functions.
[49]
On December 31, 2013 and after acknowledging
receipt of the application, the NEB directed TM to solicit applications from
stakeholders desiring to participate in the public hearing (Appeal Book, Volume
3, Tab 6D). The NEB directed TM not to solicit such applications before January
15 or after January 29. TM provided the TWN with such a notification on January
15, 2014.
[50]
On January 31, 2014, the TWN wrote to the NEB
stating that, in its opinion, it was a “jurisdiction”
within the meaning of section 18 of CEAA 2012 and wished to be
consulted. It noted, however, that such consultation and cooperation would not
replace or supersede the Crown duty to consult directly with the TWN. As a
basis for its opinion, the TWN referred to the following three documents which
were not attached to its letter:
i.
The TWN’s 2009 Stewardship Policy, which provides
for TWN assessment of proposed projects in a defined consultation area. The Project
is said to be located squarely within the consultation area (Appeal Book,
Volume 4, Tab 7A);
ii.
The Framework Agreement on First Nation Land Management with the Government of Canada to
which the TWN is a 2005 signatory, which confirms the TWN’s legal power to
develop and implement an environmental assessment process (Appeal Book, Volume 2,
Tab 4G); and
iii.
The 2007 TWN Land Code adopted pursuant
to the Framework Agreement on First Nation Land Management (Appeal Book,
Volume 2, Tab 4H).
The TWN letter did
not indicate whether these documents were publicly available.
[51]
On February 12, 2014, the TWN also filed an
application to participate, requesting intervener status.
[52]
On March 4, 2014, the NEB wrote to the TWN
seeking clarification as to its letter of January 31, 2014, and more
particularly, clarification as to whether the TWN sought any consultation or
cooperation in addition to the rights it would be granted as intervener (Appeal
Book, Volume 2, Tab 4P). The NEB outlined in its letter how an intervener
participates in the NEB hearing and how an intervener would be able to test the
applicant’s evidence through questioning, filing of evidence and the provision
of final arguments. It noted that if the TWN wished for more consultation, it would
have to provide details of what it was envisioning and details about its own
environmental assessment process, including anticipated timelines. In its
letter, the NEB also noted that:
[it was] currently determining the completeness of the project application.
If the application is found to be complete, the Board will issue a Hearing Order
providing details on the hearing process. The Board will also determine the
list of participants, including the method of participation for each (i.e.,
commenter or intervenor), in due course.
[53]
On March 5, 2014, the TWN wrote to the Minister (Appeal
Book, Volume 2, Tab 4M) to explain why it felt that the Crown had a duty of
consultation with respect to the Project and why the Crown’s position on
consultation was legally deficient and failed to uphold the honour of the
Crown. Among other things, it indicated that the duty included, in its view,
consulting the TWN in designing the overall framework for consultation and environmental
assessment of the Project, that is, upstream of the NEB role, and to
accommodate its traditional laws and decision-making rights in doing so. The TWN
added that this had not occurred to date. It noted that “the NEB cannot consult with TWN or delegate procedural
aspects of the Crown’s duty to [TM] in relation to its facilities application because
the NEBA does not empower the NEB to consult with Aboriginal peoples”.
It noted that under the current statutory framework, the NEB could not design and
implement a decision-making process which would accommodate the TWN’s
governance rights and could not alter timelines which would accommodate
decision-making in respect of TWN rights and interests. It further noted that,
in its view, the timelines imposed by the NEBA and the CEAA 2012
did not provide sufficient time for the TWN to evaluate the Project and gather
and provide traditional ecological knowledge and information as to its customs,
practices and traditions nor was the time allowed sufficient to have a
meaningful dialogue and participation. It added that the public hearing could not
be a substitute for formal First Nations consultation. Direct engagement with
First Nations, including with the TWN, was required.
[54]
It is important to mention that in its March 5,
2014 letter, the TWN acknowledged that the NEB was in the process of making
decisions about the definition of the Project, the scope of factors that were
to be assessed under the CEAA 2012 and other key environmental
assessment issues in the absence of consultation with the TWN.
[55]
It is also worth noting that the TWN appears to
have been opposed to the List of Issues issued in July, 2013, saying that the
List excluded consideration of effects arising from upstream and downstream
development, and that it was not consulted in this respect. It noted that this
might prevent the NEB and subsequently the Crown from considering critical
issues that would adversely impact the TWN’s rights and interests. Although a
copy of this letter was sent to the Prime Minister of Canada and the Minister
of Aboriginal Affairs and Northern Development Canada, the NEB was not apprised
of these concerns by the TWN at any time relevant to this appeal.
[56]
On April 2, 2014, the NEB issued the Decisions.
[57]
On April 22, 2014, the TWN answered the NEB’s
letter of March 4, 2014 that had requested details on what kind of consultation
it would be expecting and sought details on the TWN’s own assessment process
and timelines (Appeal Book, Volume 2, Tab 4Q). The April 22nd letter
did not provide any detail regarding the TWN’s Stewardship Policy or the other
two documents referred to in its January 31, 2014 letter. Nor did the TWN
provide any timeline in respect of its own process. In fact, it would have been
difficult for it to have provided any such timeline, given that, as noted
earlier, in December 2012, the TWN had decided not to engage its Stewardship Policy
and had refused TM’s request to start a formal evaluation process. (However, see
paragraph 59 below regarding a subsequent change in position of the TWN).
[58]
In its April 22nd letter, the TWN took
the position that the NEB process or decision could not act as a substitute or
replacement for its own assessment of the Project or the decision that it would
ultimately make under its own Stewardship Policy. As section 18 of CEAA 2012
applied regardless of the TWN’s role as an intervener, it took the position
that the NEB’s questions as to the TWN’s expectations in respect of
consultation should be deferred until the jurisdictional issues “have been fully canvassed”. It then noted that the
NEB had made three important decisions on April 2, 2014 without consulting or
cooperating with the TWN, and asked “the NEB to change
course and reverse [its] priorities” which appeared to be responding to
a specific application instead of advancing jurisdictional cooperation. It noted
that the NEB’s approach raised concerns that “it will now
be more difficult for the NEB to cooperate with TWN to ensure that both
jurisdictions, to the extent possible, take a coordinated approach to their
respective environmental assessments” (Appeal
Book, Volume 2, Tab 4Q). It also asked the NEB
for transparency regarding its duty under section 18 of CEAA 2012 by requesting
that the NEB disclose whom it had been dealing with as a jurisdiction and how it
proposed to coordinate its assessment process with that of other jurisdictions,
including the TWN.
[59]
On April 30, 2014, the TWN wrote to TM asking it
to reapply for an evaluation under the TWN Stewardship Policy. It noted that its
request to the Crown that it establish a government to government consultation
process had remained unanswered (see its letter of December 12, 2012), and that,
since then, TM’s formal application had been filed and the Project would result
in an EA under CEAA 2012 (referring to CEARIS website). It mentioned
that the TWN anticipated that its letter to the NEB would result in a further
discussion on a cooperative approach to assess the Project (referring, presumably,
its letter of January 31, 2014). The TWN added that it was “surprised and disappointed with the many things decided on
April 2, 2014 without any discussion with TWN”. It stated that,
nevertheless, the TWN had determined that it was appropriate to conduct a
technical review of the Project and its potential impact on the TWN, and thus
invited TM to refile its $250 fee, noting that the process would require
complete cost recovery for all TWN activities associated with its assessment. The
TWN also stated that, given the continued absence of Crown involvement and an
agreed-upon TWN-Crown consultation process, the Stewardship Policy assessment
would be carried out without any Crown consultation and that no aspect of any
interaction between the TWN and TM, including the letter dated April 30, 2014,
constituted a Crown engagement or consultation in respect of the Project.
[60]
On May 2, 2014, the TWN served and filed its
application for leave to appeal the Decisions.
[61]
On May 15, 2014, the NEB replied to the TWN’s April
22, 2014 letter (Appeal Book, Volume 3, Tab 6K). It indicated that only one other
First Nation had responded to its offer to consult and cooperate with respect
to the EA of the Project as a jurisdiction within the meaning of section 18 of CEAA
2012. It referred the TWN to the correspondence with that First Nation available
on the NEB’s online public registry. With respect to its general views on
section 18, the NEB said:
The Board considers
the purposes of section 18 to, among other things, enable improved
effectiveness and efficiency of the [NEB] and any other applicable
jurisdictions’ processes for assessing the environmental effects of a
designated project. This could include, among other things, considering ways to
avoid duplication between those assessments, coordinating process steps,
facilitating information exchanges, and coordinating timing. As noted in section 4 of the CEAA 2012, this legislation is also
intended to promote communication and cooperation with Aboriginal peoples
regarding environmental assessments.
[62]
The NEB further mentioned that, in order to
explore the opportunities for cooperation, the NEB needed information from
potential jurisdictions about how they met the definition of jurisdiction and
their intended environmental assessment process for the Project or how they
intend to exercise their powers, duties and functions in that respect. Once the
information was received, the NEB noted that there “are
likely some opportunities that could be realized, although there are some
constraints as well” because, for example, the NEB is required to
complete its assessment of a designated project within certain time limits. The
NEB noted that this was one of the considerations that it must take into
account when determining the extent to which cooperation is practical. The NEB went
on to say that:
“[t]he [NEB] must remain mindful of its
quasi-judicial role, and cannot enter into cooperation arrangements that could conflict
with that role” (Appeal Book, Volume 3, Tab 6K).
[63]
The NEB also dealt with a concern expressed by
the TWN with respect to the oral questioning of First Nations’ traditional
knowledge holders and referred to its Procedural Direction number 1. It noted
that when it issued its Hearing Order and other correspondence on April 2, 2014,
there had not yet been a response to its own letter and without details as to the
TWN’s environmental assessment process or how it intended to exercise its
powers, duties and functions, it was not possible for the NEB to consider
opportunities for cooperation. The NEB reiterated the rights of an intervener in
the process and mentioned the fact that the TWN had already asked written
questions to TM through the NEB process.
[64]
Between the summer of 2014 and the summer of
2015, the TWN continued to correspond with the Minister to seek direct government
to government consultation about the Project outside the NEB hearing process. The
TWN also corresponded with the NEB regarding its status as a jurisdiction and
how the two could collaborate. It also corresponded with the MPMO expressing
its dissatisfaction with the consultation process of the Crown. Given that the
issue of whether the NEB actually fulfilled all its obligations under section
18 after April 2, 2014 is not before us, we do not propose to go into the
details of this correspondence to which the parties made little, if any,
reference. Suffice it to say that after the TWN provided its documentation to
the NEB and then its proposed timeline in November 2014, the NEB confirmed the TWN’s
status as a “jurisdiction” on what it described
as a broad interpretation of section 18 of CEAA 2012.
[65]
The TWN filed various information requests (IR),
using the NEB process. Apart from sending an IR to TM in May 2014, it made an
IR on June 21, 2014 to the “federal agencies”,
including several pages of questions in respect of how the Crown had met its
duty to consult to that point. The response to such an IR is not in the record
before us. The MPMO also filed an IR asking the TWN various questions in
relation to the concerns that the MPMO had identified as having been raised by the
TWN to that point, asking what specific concerns remained to be addressed.
Again, the response of the TWN is not before us.
[66]
On May 26, 2015, the TWN filed its technical
assessment report, as well as its expert evidence before the NEB. The TWN
concluded that it cannot accept any risk of a spill, even on a small scale, let
alone a worse-case spill, and that it would thus not consent to the Project
going ahead.
[67]
On May 27, 2015, as part of the evidence
submitted by NRCan (MPMO), the NEB received the preliminary assessment of the rights
of the First Nations involved in the Crown consultation process (see paragraph 5
above), as well as details of the consultation plan of the Crown (Supplemental
Appeal Book, Volume 2, Tab 15, and Affidavit of Mark Youden dated January 21,
2016.) There is no evidence that the NEB was made aware of the result of this
assessment or of the details of this consultation plan at any time prior to April
2, 2014.
[68]
It is worth reproducing the following passage of
the May 27, 2015 submissions of NRCan in respect of the Crown consultation plan:
49. Information made available to the Crown
throughout each phase of the consultation process will be consolidated into a
Crown Consultation Report, which is separate and distinct from the NEB report
to the GIC. The Crown Consultation Report will summarize the procedural aspects
of consultations undertaken and the substantive issues raised by Aboriginal
groups, as well as how these issues may be addressed in this process. Draft
sections of the Crown Consultation Report will be shared with Aboriginal groups
for review and comment before it is finalized and used to inform the GIC.
50. In addition to providing an opportunity
to review and comment on the Crown Consultation Report, Aboriginal groups may
have an opportunity to provide a submission outlining any outstanding concerns,
issues or fundamental views in respect of the Project that would, along with
the Crown Consultation Report, fully inform the Crown about Aboriginal views.
51. The results of the early engagement, NEB
review process and post-hearing consultations are consolidated into an
information package that supports GIC decision-making with respect to the Project.
(Page 1286, paragraphs 49 to 51 of the May
27, 2015 written evidence submission)
[69]
The above-mentioned documents namely, the
consultation report and any submissions made by First Nations on this report, particularly
those of the TWN, are not included in the record before us.
IV.
Analysis
A.
Preliminary Issues
[70]
The role of the courts when administrative
decisions are challenged, be it by way of appeals or applications for judicial
review, is the same. It is to first to “deal with any
preliminary issues, determine the standard of review, use that standard of
review to assess the administrative decisions to see if the court should
interfere, and then, if we consider interference to be warranted, decide what
remedy, if any, should be granted”: Northern Gateway at
paragraphs 76-77 and Laïque Québécois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3 (Laïque Québécois).
[71]
We will thus proceed first with the preliminary
issues described earlier at paragraphs 25 and 26 above. Broadly speaking, what
the AG and TM posit is that it would be inappropriate for this Court to decide
the questions raised by the TWN (see paragraph 24 above) that were not raised by
it before the NEB, knowing that the TWN could have raised them and chose not to
do so. Also to be considered is the fact that, in the subsequent process, the
TWN was fully heard on issues related to its substantive concerns flowing from
the impact and the risks associated with increased marine shipping. Further, before
the GIC makes one of the decisions set out at sections 53 and 54 of the NEBA,
the TWN will have the ability to address any concern as to whether the Crown’s
duty to consult has been met, or whether the process set out in the NEBA
and the CEAA 2012 has been followed (see also sections 30 and 31 of the CEAA
2012).
[72]
To deal with the preliminary issues, we will
consider the statutory scheme, the relevant principles of administrative law,
the nature of the Decisions and whether they were intended to be final in
respect of any issue, and the particular circumstances of this case as it
stands today.
1)
Statutory Framework and administrative
law principles
[73]
The distinctive features and the uniqueness of
the legislative framework which provide a complete code for the issuance of a
CPCN have very recently been fully described in Northern Gateway at
paragraphs 92 to 124. We adopt that description, and there is no need for us to
repeat it here. What is important to recall is that the GIC is the only
decision-maker in respect of the approval of an application for a CPCN.
[74]
We will however reproduce subsections 22(1) and (4)
of the NEBA because the TWN’s proceedings were instituted pursuant to
subsection 22(1) and subsection 22(4) was subsequently added when the
legislator adopted the new statutory framework for the issuance of a CPCN:
|
Appeal to
Federal Court of Appeal
|
Appel à la Cour d’appel fédérale
|
|
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.
|
|
(4) For greater certainty, for the purpose of this section, no
report submitted by the Board under section 52 or 53 — or under section 29 or
30 of the Canadian Environmental Assessment Act, 2012 — and no part of any
such report, is a decision or order of the Board.
|
(4) Pour l’application du présent article, il est entendu que tout
rapport — ou partie de rapport — présenté par l’Office au titre des articles
52 ou 53 ou au titre des articles 29 ou 30 de la Loi canadienne sur
l’évaluation environnementale (2012) ne constitue ni une décision ni une
ordonnance de celui-ci.
|
[75]
It is only in 2012 that the legislator added
subsection 22(4) to make it clear that for the purpose of this section, the
report submitted by the NEB under sections 52 and 53 of the NEBA, or
sections 29 and 30 of the CEAA 2012 does not constitute a decision or order
of the Board. The same applies to any part of any such report.
[76]
CEAA 2012 does
not contain a provision dealing with the review of decisions made thereunder.
[77]
Subsection 22(1) of the NEBA applies to a
large number of decisions where the NEB is the final decision maker. These
include interlocutory decisions such as a final ruling on an application to
intervene or a final decision disposing of an application to approve an
application under sections 44, 58 and 58.11 of the NEBA, for example. However,
in our view, it does not apply to the Decisions made in this case, for the
reasons that follow.
[78]
The legislator is presumed to know the general
principles of administrative law that have been applied by the courts in their
review of administrative decisions. The relevant principles here are at the
very core of administrative law. First, whether the review is initiated by way
of an appeal or a judicial review application, the Supreme Court of Canada made
it clear that courts do not review decisions of administrative tribunals on the
same standard of review as they review decisions of courts such as the Federal
Court (Laïque Québécois). Second, except in exceptional cases, courts
should not intervene prematurely in the administrative process set out by the
legislator and the administrative tribunal (Canada (Border Services Agency)
v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at
paragraphs 30-33). Finally, courts do not generally deal with issues that could
have been raised before the administrative tribunal but were not so raised (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011SCC 61at paragraph 23, [2011] 3 S.C.R. 654; Forest Ethics Advocacy
Association v. Canada (National Energy Board), 2014 FCA 245, as per
paragraphs 46, 47, 54, 55 and 57, [2015] 4 F.C.R. 75). A corollary to these
principles is that decisions of administrative tribunals are generally assessed
on the basis of the record that was before that decision-maker at the time it
made its decision.
[79]
The Supreme Court of Canada has repeatedly
explained that these general principles are meant to ensure that courts respect
the legislator’s choice that certain questions be decided by expert tribunals
or other expert administrative decision makers, and that when courts are called
upon to intervene, they should have the benefit of that expertise as well as an
appropriate record to do so.
[80]
That the record typically must be the one that
was before the administrative decision-maker is no trivial matter. This ensures
that courts will properly apply the standards of review. Indeed, it is
important to underline that if the parties were able to add whatever evidence
they thought relevant to argue new issues, the courts would in fact be simply
substituting their own views for those of the administrative decision makers.
This is inappropriate not only in respect of factual findings that should be left
to be made by the administrative decision-maker, but also in respect of
questions of law that call for an interpretation of the decision-maker’s home
statute or a closely-related statute where the presumed standard of review is
reasonableness. This standard entitles the decision-maker to deference and, in
most cases, to a range of possible interpretations.
[81]
Naturally, as is almost always the case, these
general principles bear some exceptions to ensure that courts can deal with
special circumstances. For example, where there exists an issue of procedural
fairness that could not have been raised before the decision-maker, the parties
may adduce new evidence supporting their allegation in that respect. Additional
evidence may also be allowed to put issues into context, when appropriate (Association
of Universities and Colleges of Canada v. Canadian Copyright Licencing Agency
(Access Copyright), 2012 FCA 22 at paragraphs 18-20, 428 N.R. 297; Connolly
v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44; Delios v.
Canada (Attorney General), 2015 FCA 117; Bernard v. Canada (Revenue
Agency), 2015 FCA 263 at paragraphs 16-28, 479 N.R. 189).
[82]
In the present proceeding, it is evident that
much of the evidence in the record before us was not before the NEB on April 2,
2014. Some of it was filed by consent and we allowed the filing of additional
material to provide context for the arguments with respect to the alleged
breach of procedural fairness as well as the assertion that it is not appropriate,
at this stage, for the Court to deal with the issues raised by the TWN.
[83]
The NEBA provides that the NEB has the
jurisdiction to decide all questions of fact or law, including constitutional
questions such as those raised before us (section 12 of the NEBA and Forest
Ethics at paragraph 49). In fact, it appears from Appendix 7 to the Report
that the NEB did deal with constitutional questions in the course of its
proceedings, such as the constitutionality of section 55.2 of the NEBA,
a review of the List of Issues on the basis of an alleged infringement of
section 7 of the Charter of Rights and Freedoms as well as issues of
procedural fairness, such as the alleged bias of a panel member.
[84]
Moreover, the legislator expressly provided that,
subject to two exceptions that are irrelevant here, the NEB has the power to
vary and rescind any of its decisions or orders (subsection 21(1) of the NEBA).
[85]
We see nothing in the applicable legislative
scheme that would enable us to conclude that the legislator intended to allow a
review by way of an appeal under section 22 on a broader basis than what is usually
permitted by the application of the general principles of administrative law
referred to above.
2)
Application of the principles to the
Decisions
[86]
In its various memoranda (see note 22 and
paragraphs 28 to 30 of the TWN’s Supplemental Memorandum of Fact and Law dated
June 9, 2016), the TWN submits that:
i)
The Decisions are final in that they cement the
parameters of the EA going forward,
ii)
Because the Crown will not be able to correct
its failing after the fact, decisions taken in breach of the Crown’s duty to
consult must be challenged at the first opportunity before the EA is carried
out,
iii)
The Decisions are all important as they are not
simply recommendations but decisions of prescribed steps set out in the
statutory scheme,
iv)
A refusal to review these Decisions on appeal at
the earliest opportunity would deprive the TWN of an effective remedy and would
be unfair. It would result in cost, inconvenience and delay.
i.
The Hearing Order
[87]
The NEB is master of its own process and
procedure. It is thus important to first examine the Hearing Order in which the
NEB explains, at section 4.4, how to raise a question of procedure or substance
that requires a Board decision. The NEB makes it crystal clear that this must
be done by way of a motion pursuant to section 35 of the National Energy
Board Rules of Practice and Procedures, 1995. One cannot thus simply remain
silent or totally disregard the process set out by the NEB by raising questions
of law in correspondence with the NEB (see letter of April 22, 2014 at
paragraph 58 above). A simple review of Annex 7 of the Report (pages 505-506)
confirms that the NEB decided hundreds of motions on the merits presented in
accordance with the Hearing Order (Subsequent Hearing Orders). This fluid
approach is well-adapted to a proceeding involving so many parties. It is
evident that, in this proceeding, the NEB exercised its discretion to use its
power under section 21 differently than what is described in its general
guidelines (Fourth Supplementary Book of Authorities of the TWN, Tab 2) as the
NEB determined that it was prepared to revisit determinations upon receipt of a
motion.
[88]
In light of this, it is difficult to conceive
how the Hearing Order before us could be viewed as final and how its issuance without
prior consultation of the myriads of potential interveners could constitute a
breach of procedural fairness when it is clear that it was subject to
amendment. Indeed, the Hearing Order was amended as early as April 24, 2014
after an intervener sought an extension of certain deadlines, and it has since
then been substantially amended. In fact, in section 4.4 of the Hearing Order,
the NEB refers to the possibility of seeking an extension by way of a motion as
one example of how questions should be put to it. The NEB also granted an
extension of one month to enable a First Nation that sought collaboration
pursuant to section 18 of CEAA 2012 so that it could file its evaluation
report outside of the filing deadlines imposed on other interveners by the version
of the Hearing Order that was applicable at that time.
[89]
That said, even if the Hearing Order or any of
the other Decisions for that matter were considered final and within the ambit
of subsection 22 (1), the TWN has not established that they were made in breach
of their procedural rights. The TWN also argued before us that the process adopted
by the NEB was unfair because it did not provide it with an opportunity to be
heard in respect of the issues addressed by the Hearing Order before the order
was issued. However, the TWN failed to explain why the process chosen by the
NEB (to make all requests by filing a motion), which clearly enabled the 400
interveners to seek changes to the Hearing Order (or any other Order made
without the concerned party’s input for that matter), was not sufficient to
meet the NEB’s duty to act fairly in the context of this massive and complex
proceeding. If the TWN felt prejudiced by any part of the Hearing Order, it
could have sought to have it changed. It appears it did not do so. In addition,
there is no evidence that the Decisions had any impact on the ability of the TWN
as an intervener to present all the evidence it thought relevant or to carry
out its technical assessment of the Project in a satisfactory manner and to
present that assessment to the NEB.
ii.
The Completeness Decision
[90]
With respect to the Completeness Decision, we first
note that, in its reasons, the NEB expressly responded to the views expressed
by those who actually raised concerns before April 2, 2014. There was no
indication that the TWN could not have presented their views before April 2,
2014, as was done by the City of Burnaby and another First Nation. The TWN
certainly was already of the view that there were problems as it expressed in its
letter to the Minister dated March 5, 2014.
[91]
But more importantly, in its reasons (Appeal
Book, Volume 1 at pages16-18), the NEB states that:
i)
The completeness determination is really such an
initial threshold question that the Board does not typically seek comments and
makes its determination before deciding which participants it will hear from on
a given application.
ii)
The completeness determination, as an initial
threshold question, does not preclude participants from expressing their views
on and/or asking questions about what they consider to be deficiencies in the
application through the hearing process.
iii)
The NEB takes a holistic approach to
completeness and considers whether there are important issues missing from the
application that would make participants unable to engage in a debate at the
Public Hearing.
[92]
Here, the TWN refused to express its concerns to
TM in accordance with the process set out in the NEB Filing Manual. That
process seeks to ensure that an application such as that of TM would be as
complete as possible when filed. In such circumstances, the TWN surely must be
required to be proactive and diligent in voicing its concerns to the NEB, given
that the deficiencies, if any, could be the direct result of its choice not to
participate in the NEB process before the filing of the application.
[93]
An application does not need to contain every detail
to be found complete enough to engage public debate through the hearing process.
That is evidenced by the fact that the NEB, itself, sent a 95-page request for
further details to TM on April 15, 2014, and shortly thereafter, the TWN issued
its own IR to TM.
[94]
Our reading of Appendix 7 of the Report confirms
that the NEB was open to vary its Completeness Decision if contested by way of
a motion at any time before the final arguments started. But, it was not
willing to forego the need to file a motion to do so. Once again, it appears
that the TWN did not follow the process set out by the NEB to raise its
concerns and thus did not avail itself of the opportunity to be heard.
iii.
The CEAA 2012 Decision
[95]
Turning now to the CEAA 2012 Decision,
the NEB Filing Manual states that:
The NEB will review and assess the scope of
the EA based on the evidence before it. Although elements of the project
or the scope of factors to be considered may change over the course of a
proceeding (e.g., as a result of public or Aboriginal
input, or changes to the project), the application is usually the prime
source of information and starting point for establishing what the Board will
consider in the environmental assessment of a project.
[Our emphasis] (AG Book of Authorities
Volume 1, Tab A-2, page 4A-20)
[96]
In this case, the CEAA 2012 Decision was
varied when the Project was amended. Although no other motions were filed to
seek any other changes, this does not mean that the NEB was not open to do so.
In fact, very early on in the process (Ruling No. 25 dated July 23, 2014), the
NEB did consider on its merits a motion made by several interveners seeking to
expand the List of Issues published on July 29, 2013 so as to include “environmental and socio-economic effects associated with
upstream and downstream activities”. This occurred even though the NEB had
already expressly decided that it would not consider those specific issues. It
is thus difficult to conclude that the TWN could not have presented to the NEB
the issues raised before us in respect of the description of the designated
project first advertised on CEARIS and later included in the CEAA 2012 Decision.
[97]
Furthermore, even if as argued by the TWN, the CEAA
2012 Decision was a decision within the meaning of subsection 22 (1), it
appears unlikely that the description of the designated project in the CEAA
2012 Decision is the result of an error of law as opposed to the
application of a rather clear definition in CEAA 2012 to the facts, i.e.
to the Project. Leave was granted by this Court without any comment as to which
question raised by the TWN was a question of law within the meaning of section
22. The test applicable to grant leave is not the same as that applicable by
the panel hearing the matter, especially when its jurisdiction is involved. Moreover,
the record before us contains much more detail than at the leave stages. Thus, res
judicata simply does not apply.
[98]
As mentioned, the NEB included the impact of increased
marine shipping in the List of Issues it made public in July 2013. It also included
the cumulative effect such increased shipping may have as part of the factors to
be reviewed under paragraph 19(1)(a) of CEAA 2012. If the TWN believed
that there was a material difference between an assessment of the impact of
increased marine shipping under the NEBA as opposed to under CEAA
2012, it ought to have raised the issue with the NEB as deciding that issue
calls for an interpretation by this administrative tribunal of its home statute
as well as a closely related statute. This is especially so where, as in this
case, the argument is directed at what recommendations the NEB is empowered to make
under each statute.
[99]
To summarize our views in respect of the Decisions, none were
final. They did not cement the parameters of the assessment made by the NEB. Moreover,
based on the evidence before us, it appears that the TWN chose not to avail
itself of the opportunity to be heard to have the Decisions varied. Such
failure would disentitle the TWN from arguing that the Completeness Decision and
the CEAA 2012 Decision taint the Report and the NEB’s recommendations
because they were not modified.
B.
Section 18 of CEAA 2012
[100] We
now turn to what was presented as a distinct and separate issue from the
constitutional issue of the Crown’s duty to consult - an alleged failure to
make an offer to consult as per section 18 of CEAA 2012 prior to making
the Decisions.
[101] Contrary
to what was argued, in our view, the NEB did offer to consult and
collaborate pursuant to section 18 of the CEAA 2012 with any and all
parties that might be “jurisdictions” on December 20, 2013, when it published its notice to that
effect on CEARIS.
[102] One
of the purposes of the legislative scheme adopted in 2012 was to ensure the
timely review of applications for a CPCN, whether or not they involve an EA
under the CEAA 2012. While the TWN did not agree with the strict timelines
in the legislation or that this legislative purpose is important, the NEB was nevertheless
bound to pursue it and was required to deal with TM’s application expeditiously.
[103] Prior
to April 2, 2014, the TWN failed to provide the NEB with all the information the
NEB reasonably required to determine the jurisdictional issue. It also failed
to advise the NEB that it was expecting that no decisions would be made to
advance the process set out in the NEBA without its status first being
confirmed and a collaboration plan established.
[104] In the circumstances, it would be inappropriate for this Court to
comment further on how collaboration under section 18 should generally function
as it has yet to really be addressed by the NEB. This is especially so,
considering that the only issue here is whether the NEB had to offer to consult
and collaborate before making the Decisions. There is nothing in the record as
to whether the other responsible authorities under CEAA 2012 have issued
any guidelines in that respect. There is no doubt that having guidelines dealing
with this point would be beneficial, although the exact nature of the
collaboration will likely vary depending on the circumstances. That is not to
say, however, that without them, one could unduly delay the process provided
for in the legislative scheme.
C.
The Crown’s Duty to Consult
[105] As mentioned, the TWN did not raise this constitutional issue with
the NEB before seeking the intervention of this Court. Again, there is no doubt
that it could have done so by following the process adopted by the NEB in this matter (see paragraph 83 above). This is particularly troubling with respect to
the allegation that NEB had the duty to consult under CEAA 2012 as it
was not until mid-way through its argument before us that the TWN took the
position that the duty applied to the NEB, itself. This is contrary to the position
the TWN expressed in its correspondence with the Minister. That the NEB could not itself consult was used as justification for requesting a government to
government process or the setting up of a parallel process outside of the NEB process.
[106] In addition, in Forest Ethics (at paragraphs 46, 47, 54 and
55), this Court reiterated that it is particularly important not to bypass the
administrative tribunal process when dealing with constitutional issues. The
Court even expressed some doubt as to whether it had the discretion discussed
in Alberta Teachers when constitutional questions are raised for the
first time before a reviewing court.
[107] In its submissions with respect to the preliminary issue, the TWN particularly
focused on the need to raise a potential breach of the Crown’s duty to consult
at the earliest opportunity to ensure that it can obtain an effective remedy,
i.e. to quash the Decisions and send the matter back to the NEB for
redetermination.
[108] In this particular case, we see no good reason to exercise our
discretion in favour of the TWN on that basis. It cannot be said that putting
the issue before the NEB before proceeding under section 22 of the NEBA
would have unduly delayed the matter. Indeed, how could one conclude that the
way the TWN chose to proceed could ever have led to the only prompt solution,
when it bypassed the more obvious route of asking the NEB to consider its
issues? In fact, the route the TWN chose has caused significant delay. Moreover,
the TWN did not conduct itself as if a decision in the present proceeding was
urgent.
[109] Also, even if there had been a breach of the duty to consult, is not
clear what remedy would be appropriate. It appears that the TWN had the
opportunity to fully express its views to the NEB in respect of all of its
concerns, including the impact of increased marine shipping and the fact that
it was not prepared to accept any risk of a spill. Furthermore, the
consultation process is not yet completed. Issuing a declaration in these
circumstances about the scope of the duty to consult in respect of
interlocutory decisions could have no practical effect as any breach might well
have been remedied by the subsequent process before the Board or may still be
remedied through the consultation that is currently ongoing.
[110] The TWN relied on several cases, including some from the British
Columbia Court of Appeal, where courts have intervened as soon as a “scoping decision” was made where the tribunal did not
consult with an impacted Aboriginal group before issuing the scoping decision.
None of these cases involved the unique legislative framework applicable here.
They are also not particularly relevant to the determination of the preliminary
issues that arise here considering the fluid process adopted by the NEB to ensure that all questions raised by interveners could be dealt with promptly by way
of a motion. We therefore do not find the cases cited by the TWN to be of
assistance.
[111] Further, considering that the NEB has issued the Report, the
question of whether or not the Crown has fulfilled its duty to consult is an
issue that will have to be assessed and decided by the GIC (Northern Gateway
at paragraph 166).The GIC has the power to ask the NEB to reconsider
certain issues if it feels that it is necessary to do so. It can also refuse to
give its approval if it concludes that the Crown has not met its constitutional
duty to consult. Those decisions are themselves subject to review by this Court
in due course, as was done in Northern Gateway.
[112] Finally, we underscore that the Court must be careful not to use its
discretion in a manner that would effectively take the matter out of the hands
of the GIC contrary to the clear intention of Parliament.
[113] In light of the foregoing, we have not been persuaded that the Court
should intervene at this stage. However, we believe that in the particular
circumstances of this case, the Court should ensure that the TWN is not
prejudiced by this dismissal as the dismissal is grounded in part on the basis
that it would be premature for the Court to address the issues surrounding
consultation when the consultation process is ongoing and the GIC has not yet
decided if the Crown discharged its duty to consult with the TWN about the
Project. Thus, we propose that the dismissal be without prejudice to the TWN’s
right to raise the issues it raised before us (with the exception of issues
pertaining to the alleged final nature of the Decisions and the NEB’s alleged
breach of section 18 of CEAA 2012 before April 2, 2014) in any
proceeding it might deem necessary to institute to contest the ultimate
decision of the GIC.
V.
Costs
[114] This leaves only the issue of costs. As there was no further hearing
after the adjournment was granted, we are satisfied that no costs should be
awarded on the AG’s motion which was supported by the TWN. The matter of the costs
resulting from the failure of the TWN’s counsel to give proper notice that the TWN
had changed its legal position on a core component of the case is more serious.
We have not been persuaded that the TWN could not have given such notice before
October 27, 2015. Its new argument was premised both on this Court’s decision
in Clyde River, issued in August 2015, and the Supreme Court decision in
Carrier Sekani. Respect for the process of this Court and of the rights
of the other parties to respond is essential. The TWN did not even advise the
Court at the beginning of the hearing of its fundamental change in position, a
change which it ought to have known was serious. Because of the nature of the
question at issue, all agreed that the Court should hear the TWN’s argument
subject to the parties’ right to consider it properly and make further submissions.
We thus propose to grant costs in respect of the change in position the amount
of $500.00 plus the traveling costs of one counsel only (each) to the AG and TM,
who were required to re-attend in Vancouver as a result of the change in
position. With respect to the appeal per se, considering the result and
all the circumstances, we propose that each party bear its own costs.
"Johanne Gauthier"
"Mary J.L. Gleason"
I agree
Wyman W. Webb
J.A.
Email this Content