Docket:
A-354-14
Citation: 2015 FCA 179
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CORAM:
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NADON J.A.
DAWSON J.A.
BOIVIN J.A.
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BETWEEN:
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HAMLET OF CLYDE
RIVER, NAMMAUTAQ HUNTERS & TRAPPERS ORGANIZATION - CLYDE RIVER, AND JERRY
NATANINE
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Applicants
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and
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TGS-NOPEC
GEOPHYSICAL COMPANY ASA (TGS), PETROLEUM GEO-SERVICES INC. (PGS), MULTI
KLIENT INVEST AS (MKI), and THE ATTORNEY GENERAL OF CANADA
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Respondents
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and
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NATIONAL
ENERGY BOARD
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Intervener
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
Clyde River (in Inuktitut: Kanngiqtugaapik - ᑲᖏᖅᑐᒑᐱᒃ) is an Inuit hamlet located on the northeast
coast of Baffin Island on Patricia Bay. Patricia Bay lies off the Clyde Inlet,
an arm of Baffin Bay in the Qikiqtaaluk Region of Nunavut. The vast majority of
the residents of Clyde River are Inuit.
[2]
For generations the people
of Clyde River have relied upon the harvest of marine mammals in Baffin Bay and
the adjoining Davis Strait for their food security and their economic, cultural
and spiritual well-being. Marine mammals of particular importance to the
community are the bowhead whale, the narwhal, the ringed, bearded and harp
seals, and the polar bear.
[3]
The Davis Strait/Baffin Bay populations of
bowhead whales have been identified as “threatened”
under the Species at Risk Act, S.C. 2002, c.
29 (SARA) and by the Committee on the Status of Endangered Wildlife in
Canada (COSEWIC). Both SARA and COSEWIC identify the narwhal of the Eastern
Arctic as being of “Special Concern”.
[4]
In May, 2011, TGS-NOPEC
Geophysical Company ASA (TGS), Petroleum Geo-Services Inc. (PGS) and Multi
Klient Invest as (MKI) (together the proponents) applied to the National Energy
Board (Board) for a Geophysical Operations Authorization (GOA) to undertake a two-dimensional
offshore seismic survey program in Baffin Bay and the Davis Strait (Project). The
Project was to be conducted in the open water season for up to five years. The
application was made pursuant to paragraph 5(1)(b) of the Canada Oil
and Gas Operations Act, R.S.C. 1985, c. O-7 (COGOA or the Act).
[5]
On June 26, 2014, the
Board issued a GOA to the proponents on specified terms and conditions.
Attached to the letter notifying the proponents of the issuance of the GOA were
the authorization itself, the terms and conditions that applied to the
authorization and an environmental assessment report prepared by a member of
the Board on its behalf.
[6]
In the environmental
assessment, the Board concluded that “with the implementation of [the project operator’s] commitments,
environmental protection procedures and mitigation measures, and compliance
with the Board’s regulatory requirements and conditions included in this
[Environmental Assessment] Report, the Project is not likely to result in
significant adverse environmental effects.”
[7]
This is an application for
judicial review of the decision of the Board to grant the GOA (Decision).
I.
The Issues
[8]
The issues raised on this
application are:
1.
Do the applicants have
standing to bring this application?
2.
Was the Crown’s duty to
consult with the Inuit in regard to the Project adequately fulfilled?
3.
Did the Board err in
issuing the GOA? Specifically:
a.
Were the Board’s reasons
adequate?
b.
Did the Board reasonably
conclude that the Project is not likely to result in significant adverse
environmental effects?
c.
Did the Board fail to
consider Aboriginal and Treaty rights?
4.
Was the Crown obliged to
seek the advice of the Nunavut Wildlife Management Board?
[9]
For the reasons that follow, I have concluded
that:
1.
The applicants have
standing to bring this application.
2.
The Crown adequately
fulfilled its duty to consult with the Inuit in regard to the Project.
3.
The Board did not err in
issuing the GOA.
4.
The Crown was not obliged
to seek the advice of the Nunavut Wildlife Management Board.
It follows that I would dismiss this
application with costs in favour of the Attorney General of Canada. I would not
award costs to the proponents.
II.
Do the applicants have standing to bring this
application?
[10]
The Attorney General raises, as a preliminary
issue, whether the applicants have standing to challenge the Decision. In his
submission, the applicants are not directly affected by the Decision. Nor
should the applicants be granted public interest standing.
[11]
The Attorney General is
partially supported in this view by the proponents. TGS accepts that the
applicants have standing to make administrative law arguments. It argues,
however, that the applicants do not have standing to pursue claims based on
Aboriginal or treaty rights. PGS and MKI adopt and endorse this submission.
[12]
I begin consideration of
this issue by describing the applicants. The Hamlet is a municipal corporation
which exercises power pursuant to the Hamlets Act, R.S.N.W.T. (Nu) 1988,
c. H-1. This Act provides, in section .01, that the purpose of municipal
governments include providing good government and developing safe and viable
municipalities.
[13]
The Nammautaq Hunters
& Trappers Organization – Clyde River (HTO – Clyde River) is a Hunters and
Trappers Organization (HTO) as defined in the Nunavut Land Claims Agreement. As
such, it is mandated to oversee wildlife harvesting by Inuit (Article 5.7.1)
and to manage wildlife harvesting among its members (Article 5.7.3(d)). Where a
right of action arises to an Inuk, the HTO of which that Inuk is a member may
sue to enforce the right on the Inuk’s behalf.
[14]
Jerry Natanine is a
resident of Clyde River and is currently its Mayor.
[15]
In my view, as TGS
submits, the applicants are directly affected by the Decision and so have
standing to challenge the Decision based upon administrative law principles. I
reach this conclusion on the following basis.
[16]
The Board acknowledged in
its environmental assessment that a number of potential adverse environmental
effects could flow from the Project. These included a decrease in local ambient
air and water quality, potential disturbance of traditional and commercial
resource use if the seismic survey changed the migration route of marine
mammals or fish, and adverse changes to the “ecosystem process” and marine presence due to spills or accidents. As the realization of
any of these potential adverse impacts would affect the applicants’ natural
environment and the livelihood of the members of the HTO, they are directly
affected by the decision within the meaning of subsections 18.1(1) and 28(2) of
the Federal Courts Act, R.S.C. 1985, c. F-7.
[17]
The Board’s findings
referred to in the above paragraph make the authorities relied upon by the
Attorney General distinguishable. For example, in Williams v. Canada
(Minister of Fisheries and Oceans), 2003 FCT 30, 227 F.T.R. 96, a First
Nation was found not to have standing to challenge the issuance of a marine
mammal predator control licence. The First Nation was found not to be directly
affected by the granting of the licence because it adduced no evidence that the
licence had any detrimental impact on its members’ ability to hunt seals.
[18]
I next consider whether
the applicants should be granted standing to pursue claims based upon
Aboriginal or treaty rights.
[19]
In Canada (Attorney
General) v. Downtown Eastside Sex Workers United Against Violence Society,
2012 SCC 45, [2012] 2 S.C.R. 524, at paragraph 37, the Supreme Court enumerated
three factors to be considered in the exercise of discretion to grant public
interest standing:
i)
whether there is a serious
justiciable issue raised;
ii)
whether the applicant or
plaintiff has a real stake or genuine interest in the issue; and
iii)
whether, in all of the
circumstances, the proposed proceeding is a reasonable and effective way to
bring the issue before the courts.
[20]
According to the Attorney
General, these factors do not militate in favour of granting standing to the
Hamlet or its Mayor. The Attorney General also submits that HTO – Clyde River
may have public interest standing because its members have harvesting rights
within the Nunavut Settlement Area pursuant to the Nunavut Land Claims
Agreement – a land claim agreement contemplated by section 35 of the Constitution
Act, 1982. In this event, the Attorney General submits that the HTO – Clyde
River must be styled as representing its members.
[21]
The proponents object that
the HTO – Clyde River failed to file evidence it was authorized by the
collective rights holding body under the Nunavut Land Claims Agreement to
pursue these claims.
[22]
In Downtown Eastside
Sex Workers, the Supreme Court instructed that when considering whether to
grant standing, Courts should exercise their discretion and balance the
underlying rationale for restricting standing with the important role of the
courts in assessing the legality of government action. At the root of the law
of standing is the need to balance ensuring access to the courts with
preserving judicial resources (reasons of the Supreme Court at paragraph 23).
The requirements for standing are to be addressed in a liberal and generous
manner (reasons of the Supreme Court at paragraph 2).
[23]
Subsequently, this
approach was applied to allow the Manitoba Métis Federation to advance “a collective claim of the Métis people” (Manitoba Métis Federation Inc. v. Canada
(Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at paragraphs 43-44).
[24]
In my view, there is no
doubt that the application raises serious justiciable issues about whether the
Board’s decision was reasonable and whether the Crown’s obligation to consult
was met. As well, I have no doubt that the application for judicial review of
the Decision is a real and effective way to bring these issues before the
Court. Applying Manitoba Métis Federation, I also have no doubt that the
HTO – Clyde River has a real stake and genuine interest in these issues. I am
satisfied that in these circumstances it should be given public interest
standing.
[25]
Having concluded that all
of the applicants are directly affected by the Decision, and that the HTO –
Clyde River should be given public interest standing, it is not necessary to
consider whether the Hamlet and its Mayor should be given public interest
standing. It is sufficient that the HTO – Clyde River has standing to assert
issues relating to Aboriginal or treaty rights.
[26]
This said, it is relevant
to consider the position of the respondents on the substantive issues raised in
this application: they all assert that the Crown’s duty to consult was
satisfied through the Board’s process. As will be explained in greater detail
below, in its environmental assessment, the Board found that the Project
operator had made sufficient efforts to consult with potentially affected
Aboriginal groups and to address their concerns. The Board also found that
Aboriginal groups had an adequate opportunity to participate in the Board’s environmental
assessment process by attending public meetings held by the Board and by filing
letters of comment with the Board.
[27]
On the first point, the
Board appended as Appendix 2 to its environmental assessment a summary list of
MKI’s consultation activities. Included on the list were two meetings with the
community of Clyde River, a meeting with the Mayor and Council of Clyde River,
a meeting with the HTO – Clyde River and what appears to be a joint meeting
with the Council of the Hamlet and the HTO – Clyde River. Also listed were
consultations with other communities and HTOs. Comments were also sent by the
residents of Pond Inlet. On the second point, letters of comment were sent to
the Board by Clyde River; a joint letter was sent from the Municipality of Clyde
River (signed by its Mayor) and the HTO – Clyde River.
[28]
In this circumstance, it
appears that the respondents rely upon the participation of the applicants and
other similarly situated entities in the consultative process to argue it was a
robust process, while at the same time the Attorney General (and to a lesser
extent the proponents) argue the applicants ought not to be permitted to
challenge the Decision. Had I found it necessary to decide whether the Hamlet
and its Mayor had public interest standing, this would have been, in my view, a
relevant consideration.
[29]
Having dealt with the
issue of standing, I turn to the issue of the requirement of adequate
consultation.
III.
Was the Crown’s duty to consult with the Inuit
in regard to the Project adequately fulfilled?
[30]
The applicants assert
that:
i)
the duty to consult was
triggered by the Board’s receipt of the proponents’ GOA application;
ii)
given that the Inuit
possessed treaty rights to harvest marine mammals in Baffin Bay and the Davis
Strait, and given the impact of the Project on those rights, the duty to
consult lies at the high end of the consultative spectrum;
iii)
when the duty lies at the
high end of the consultative spectrum, there must be meaningful attempts to
engage the Inuit in the decision-making process; this may include a requirement
that the Inuit’s rights and interests be accommodated; and
iv)
the Crown has done “virtually nothing” to discharge its duty.
[31]
In response, the Attorney General submits:
i)
Canada owed a duty to
consult the Inuit residing in Clyde River and other communities in respect of
potential adverse impacts to any rights established or asserted under section
35 of the Constitution Act, 1982 that might result from the
authorization of the Project;
ii)
the scope of consultation
owed was at the mid-range of the consultative spectrum;
iii)
in fulfilling its duty to
consult, Canada relied on the consultative efforts of the proponents and their
agents, and on the administrative process of the Board. The consultation
process, including the Board’s environmental assessment, were specifically designed
to hear and consider all of the applicants’ concerns; and
iv)
the GOA, when read with
the terms and conditions imposed on the Project and the environmental
assessment report, amounts to a reasonable degree of accommodation of the
applicants’ concerns regarding potential impacts to their section 35 harvesting
rights.
[32]
The Attorney General’s
submissions are supported by the proponents who also argue that the Board’s
process could and did fulfil the duty to consult.
[33]
Prior to addressing these
submissions, I will review the applicable standard of review to be applied to
the Decision and then review the relevant legal principles.
A.
Standard of review
[34]
Questions as to the
existence of the duty to consult and the extent or content of the duty are
legal questions, reviewable on the standard of correctness. The consultation
process and the adequacy of consultation is a question of mixed fact and law,
reviewable on the standard of reasonableness (Haida Nation v. British
Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at
paragraph 61-62; and, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
2010 SCC 43, [2010] 2 S.C.R. 650, at paragraph 64).
[35]
The adequacy of the
Board’s reasons are to be addressed within the framework of the reasonableness
analysis, (Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paragraphs
14 to 22.
[36]
Similarly, the merits of
the Board’s decision to issue the GOA is reviewable on the standard of
reasonableness because the Board’s decision was fact based, informed by
legislation closely connected to its function.
B.
Relevant legal principles
[37]
The duty to consult is
grounded in the honour of the Crown. The duty arises when the Crown has actual
or constructive knowledge of the potential existence of Aboriginal rights or
title and contemplates conduct that might adversely affect those rights or
title (Haida Nation at paragraph 35).
[38]
The Attorney General
acknowledges a duty to consult
“the Applicants regarding the [Board’s] approval of the GOA” (Attorney General’s memorandum of fact and
law at paragraph 57). In making this acknowledgement, the Attorney General
does not identify the conduct or contemplated Crown conduct that triggered the
duty to consult.
[39]
In my view, this
concession appears, at the least, to reflect the fact that the Board could not
authorize the Project until the responsible Minister had either approved a
benefits plan in respect of the Project, or waived the requirement of approval
(subsection 5.2(2) of the Act).
[40]
In light of this statutory
requirement for ministerial approval, I am satisfied that the Attorney General
correctly acknowledged that the duty to consult was triggered.
[41]
The extent or content of
the duty of consultation is fact specific. The depth or richness of the
required consultation increases with the strength of the prima facie
Aboriginal claim and the seriousness of the potentially adverse effect upon the
claimed right or title (Haida Nation at paragraph 39; Rio Tinto
at paragraph 36).
[42]
When consultation duties
lie at the low end of the consultation spectrum, the claim to title is weak,
the Aboriginal interest is limited or the potential infringement is minor. In
such a case, the Crown may be required only to give notice of the contemplated
conduct, disclose relevant information, and discuss any issues raised in
response to the notice (Haida Nation at paragraph 43). Where the
duty of consultation lies at the high end of the spectrum, a strong prima
facie case for the claim is established, the right and potential
infringement is of high significance to the Aboriginal peoples, and the risk of
non-compensable damage is high. In this type of case, while the precise
requirements will vary with the circumstances, a deep consultative process
might entail: the opportunity to make submissions; formal participation in the
decision-making process; and, the provision of written reasons which show that
Aboriginal concerns were considered and how those concerns impacted on the decision
(Haida Nation at paragraph 44).
[43]
It is now settled law that
Parliament may choose to delegate procedural aspects of the duty to consult to
a tribunal. Tribunals that consider resource issues that impinge on Aboriginal
interests may be given: the duty to consult; the duty to determine whether
adequate consultation has taken place; both duties; or, no duty at all. In
order to determine the mandate of any particular tribunal, it is relevant to
consider the powers conferred on the Tribunal by its constituent legislation,
whether the tribunal is empowered to consider questions of law and what
remedial powers the tribunal possesses (Rio Tinto at paragraphs 55 to 65).
[44]
Thus, for example in Taku
River Tlingit First Nation v. British Columbia (Project Assessment Director),
2004 SCC 74, [2004] 3 S.C.R. 550, the Supreme Court accepted that an
environmental assessment process was sufficient to satisfy the procedural
requirements of the duty to consult. At paragraph 40 of the Court’s reasons,
the Chief Justice wrote that the province was not required to develop special
consultation measures to address the First Nation’s concerns “outside of the process provided for by the
Environmental Assessment Act, which specifically set out a scheme that
required consultation with affected Aboriginal peoples”. Subsequently, in Beckman v. Little
Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at
paragraph 39, this aspect of Taku River was characterized to be a
holding that participation in a forum created for other purposes may satisfy
the duty to consult “if in
substance an appropriate level of consultation is provided”.
[45]
In Taku River, the
Supreme Court also recognized that project approval is “simply one step in the process by which
the development moves forward”
(reasons at paragraph 45). Thus, outstanding First Nation concerns could be
more effectively considered at later stages of the development process. It was
expected that throughout the permitting, approval and licensing process, as
well as in the development of a land use strategy, the Crown would continue to
fulfil its duty to consult, and if required, accommodate.
[46]
When the Crown relies on a
regulatory or environmental assessment process to fulfil the duty to consult,
such reliance is not delegation of the Crown’s duty. Rather, it is a means by
which the Crown can be satisfied that Aboriginal concerns have been heard and,
where appropriate, accommodated (Haida Nation at paragraph 53).
[47]
The consultation process
does not dictate a particular substantive outcome. Thus, the consultation
process does not give Aboriginal groups a veto over what can be done with land
pending final proof of their claim. Nor does consultation equate to a duty to
agree; what is required is a commitment to a meaningful process of consultation.
Put another way, perfect satisfaction is not required. The question to be
answered is whether the regulatory scheme, when viewed as a whole, accommodates
the Aboriginal right in question (Haida Nation at paragraphs 42, 48
and 62).
[48]
Good faith consultation
may reveal a duty to accommodate. Where there is a strong prima facie
case establishing the claim and the consequence of proposed conduct may
adversely affect the claim in a significant way, the honour of the Crown may
require steps to avoid irreparable harm or to minimize the effects of
infringement (Haida Nation at paragraph 47).
[49]
Good faith is required on
both sides in the consultative process: “The common thread on the Crown’s part must be ‘the intention of
substantially addressing [Aboriginal] concerns’ as they are raised […] through
meaningful process of consultation” (Haida Nation at paragraph 42). At the same time,
Aboriginal claimants must not frustrate the Crown’s reasonable good faith
attempts, nor should they take unreasonable positions to thwart government from
making decisions or acting in cases where, despite meaningful consultation,
agreement is not reached (Haida Nation at paragraph 42).
[50]
I now turn to consider the mandate conferred on
the Board.
C.
Is the Board mandated to engage in consultation?
[51]
The Board is established under the National
Energy Board Act, R.S.C. 1985, c. N-7. Subsection 12(2) of that Act confers
jurisdiction on the Board to determine all matters before it, “whether of law or of fact”.
[52]
The COGOA governs petroleum exploration activities
in waters under federal jurisdiction. This Act prohibits any work or activity
related to the exploration of oil or gas in Federal waters unless the work or
activity is authorized under paragraph 5(1)(b) of the Act (subsection 4(b)).
Paragraph 5(1)(b) confers jurisdiction on the Board to authorize
such work or activity. The Board is given full jurisdiction to hear and
otherwise determine all matters under the Act “whether
of law or of fact” (subsection 5.31(3)).
[53]
Under paragraph 5(1)(d) of the Canadian
Environmental Assessment Act, S.C. 1992, c. 37 (CEAA, 1992) a federal
authority, such as the Board, could not issue an authorization under federal
legislation to enable a project to proceed unless the federal authority first ensured
that an environmental assessment of the project was conducted. While the CEAA,
1992 is no longer in force, it was in force when the proponents sought their
project authorization. Upon repeal of the CEAA, 1992 the Board continued the
environmental assessment process, noting that it continued to have a mandate
under the COGOA to consider the environmental effects of the Project. No one
takes issue with that position.
[54]
Having embarked upon the required environmental
assessment, subsection 37(1) of the CEAA, 1992 required the Board, as the
responsible authority to, either permit the project to proceed or to decline to
exercise its authority to permit the project to be carried out. In exercising
this authority the Board was required to assess the Project’s “environmental effects” and to consider mitigation
measures it considered appropriate.
[55]
Pursuant to subsection 2(1) of the CEAA, 1992 “environmental effect” was defined to include the
effect of any change that a project may cause in the environment, including any
change upon “the current use of lands and resources for
traditional purposes by aboriginal persons”. More specifically,
paragraphs 2(1)(a) and (b) of the CEAA, 1992 provided that:
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“environmental effect” means, in respect of a project,
(a) any
change that the project may cause in the environment, including any
change it may cause to a listed wildlife species, its critical habitat or the
residences of individuals of that species, as those terms are defined in
subsection 2(1) of the Species at Risk Act,
(b) any
effect of any change referred to in paragraph (a) on
(i) health and
socio-economic conditions,
(ii) physical
and cultural heritage,
(iii) the
current use of lands and resources for traditional purposes by aboriginal
persons, or
(iv) any
structure, site or thing that is of historical, archaeological,
paleontological or architectural significance, or
[emphasis added]
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« effets environnementaux » Que ce soit au Canada ou à l’étranger,
les changements que la réalisation d’un projet risque de causer à
l’environnement — notamment à une espèce sauvage inscrite, à son habitat
essentiel ou à la résidence des individus de cette espèce, au sens du
paragraphe 2(1) de la Loi sur les espèces en péril — les répercussions de
ces changements soit en matière sanitaire et socioéconomique, soit sur l’usage
courant de terres et de ressources à des fins traditionnelles par les
autochtones, soit sur une construction, un emplacement ou une chose
d’importance en matière historique, archéologique, paléontologique ou
architecturale, ainsi que les changements susceptibles d’être apportés au
projet du fait de l’environnement.
[Je souligne.]
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[56]
Finally, subsection 18(3) of the CEAA, 1992
provides for public participation in the Board’s process when the Board
determines such participation is appropriate.
[57]
Having described the legislative scheme, it is
relevant to focus on the definition of “environmental
effect” and the extent it required every environmental assessment
conducted pursuant to this legislation to consider any changes to the
environment likely to result in changes to the modern-day use that Aboriginal
people make of the land, its flora and fauna for traditional purposes including
residence, hunting, trapping, gathering, fishing and ceremonies. More
particularly, the question to be asked is whether this provision signalled
Parliament’s intent to confer a mandate on the Board to carry out a
consultative process within the contemplation of Rio Tinto?
[58]
Turning to the legislative history, the
definition of “environmental effect” in section
2 of the CEAA, 1992 was amended to include reference to land use by Aboriginal
persons as a related amendment to the enactment of the Species at Risk Act.
This particular amendment came into force on June 5, 2003.
[59]
Prior to this amendment, it was the position of
the Board that before rendering decisions in cases where the effect of the
decision might be to interfere with an Aboriginal or treaty right, the Board
was responsible to determine whether there had been adequate Crown consultation.
This was expressed in a letter the Board issued on March 4, 2002, to companies
subject to its jurisdiction and others, including “representatives
of Aboriginal peoples”.
[60]
The Board’s position was based upon its
understanding of three decisions of the Supreme Court: R. v. Sparrow,
[1990] 1 S.C.R. 1075; Delgamuukw v. British Columbia, [1997] 3 S.C.R.
1010; and, Québec (Attorney General) v. Canada (National Energy Board),
[1994] 1 S.C.R. 159.
[61]
On August 3, 2005, the Board again wrote to its
stakeholders following issuance of the Supreme Court’s decisions in Haida
Nation and Taku River, stating that the Memorandum on Guidance and
Consultation with Aboriginal Peoples issued on March 4, 2002, might no longer
reflect recent developments in the law. The memorandum was therefore withdrawn.
The Board stated its commitment “to ensuring that
appropriate consultation is carried out in respect of projects where there is a
potential impact on the rights or interests of Aboriginal peoples.” This
position was consistent with the mandate conferred on the Board when the
definition of “environmental effects” was
amended.
[62]
As PGS and MKI submit, at the time the Decision
was made the Board had disseminated two public documents that bear on the issue
of consultation. The first is entitled “Consideration
of Aboriginal Concerns in National Energy Board Decisions” (tab 29 Book
of Authorities GPS and MKI). In this document the Board explains that:
- The Board takes
steps to ensure that it has sufficient evidence before it makes a
decision, including evidence on the impact a proposed project may have on
Aboriginal people.
- In order to
ensure that it has sufficient evidence about the possible impact of a
project on Aboriginal people, the Board requires proponents to contact
potentially affected Aboriginal communities well before an application is
filed with the Board.
- A proponent is
required to include the following information in its application:
•
Identification of all Aboriginal communities
that may be affected by the project and how they were identified.
•
When and how Aboriginal communities were
contacted by the proponent and who the contact person was in each community.
•
Evidence the proponent has provided potentially
affected Aboriginal people with a project overview that clearly explains the
nature of the project, its routing, proposed construction and possible
environmental and socio-economic impacts. The proponent is also to provide
affected Aboriginal peoples with information regarding measures proposed to
minimize such impacts.
•
Documentation and summaries of meetings with
potentially affected Aboriginal people. While details of confidential discussions
need not be revealed, the evidence provided should include enough information
to enable the Board to understand the general issues discussed with Aboriginal
people.
•
Information about the concerns raised by
Aboriginal people, and whether those concerns remain outstanding or have been
addressed by the proponent.
•
An analysis of the potential impacts of the
project on the exercise of traditional practices such as hunting, fishing, trapping
and gathering.
- After reviewing evidence
submitted by a proponent the Board may make a number of information
requests of a proponent or require the proponent to file further evidence
to complete the evidentiary record on Aboriginal issues.
- The Board recognizes
that in some cases Aboriginal groups may be able to participate more
meaningfully in an oral hearing with support from third parties, including
legal and technical specialists. Funding may be available to interested
persons.
[63]
The second public document is entitled “Information for Aboriginal People” (tab 30 Book of
authorities GPS and MKI). In this document the Board explains that:
- The Board
requires all proponents to consult with potentially impacted Aboriginal
groups early in the project planning and design phases, when it is easiest
for a proponent to respond to concerns raised by Aboriginal groups.
- While Aboriginal
groups are encouraged to raise their concerns about a project with the
proponent, Aboriginal groups may bring any outstanding concerns or views
about the project directly to the attention of the Board through the
hearing process. These concerns could include concerns about how the
project might impact Aboriginal communities, the use of traditional
territory, and any potential or established Treaty or Aboriginal rights.
The Board will take all relevant concerns into account when determining
whether a project can go ahead and what conditions to place on its
approval.
- The Board
understands that Crown consultation is an issue of interest to Aboriginal
groups. In recent hearings, the Crown has stated that it will rely on the
Board process to the extent possible to meet any duty the Crown may have
to consult with Aboriginal groups.
[64]
I summarize the preceding information as follows:
i)
The Board has a full mandate to decide questions
of law.
ii)
From June 5, 2003, at least until the repeal of
the CEAA, 1992, when considering an environmental assessment, the Board was
required to assess any change to the environment caused by a project that could
result in changes to current land use by Aboriginal persons.
iii) The Board is a decision-maker whose decisions must be made in
accordance with subsection 35(1) of the Constitution Act, 1982.
iv) The Board’s process is designed to ensure that it has sufficient
evidence about the possible impact of a project upon Aboriginal people, the
extent affected Aboriginal groups have been consulted and the extent their
concerns have been addressed, or are still outstanding.
v)
The Board is given a broad discretion when
conducting an environmental assessment: it may permit a project to proceed,
with or without mitigation measures, or it may decline to allow the project to
proceed.
vi) The Board may allow public participation in its process.
vii) The Board may provide funding to affected Aboriginal groups to
enable them to participate more fully in the Board’s process.
[65]
When these facts are read together, and when
they are applied to the principles articulated in Rio Tinto and Taku
River, I conclude that the Board has a mandate to engage in a consultation
process such that the Crown may rely on that process to meet, at least in part,
its duty to consult with Aboriginal peoples. Of course, when the Crown relies
on the Board’s process, in every case it will be necessary for the Crown to
assess if additional consultation activities or accommodation is required in
order to satisfy the honour of the Crown.
[66]
In reaching this conclusion, I am mindful that
the Supreme Court cautioned in Mikisew Cree First Nation v. Canada (Minister
of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at paragraph 64
that consultation cannot be “an afterthought to a
general public consultation”. However, subsequently the Supreme Court
distinguished general public consultation of the sort that occurred in Mikisew
with consultation as a First Nation.
[67]
Thus, in Beckman, at paragraph 79, the
Court observed that in that case the First Nation was consulted as a First
Nation through the Yukon government’s Land Application Review Committee. This
was adequate consultation.
[68]
This is consistent with the holding in Haida
Nation that affirmed the ability of governments to establish regulatory
schemes to fulfil “procedural steps” of the duty
to consult (Haida Nation at paragraph 51). It is also consistent with
the Supreme Court’s decision in Taku River which upheld the Crown’s
reliance on an environmental assessment process to fulfil the duty to consult (Taku
River at paragraph 40). The Supreme Court has, therefore, affirmed that the
duty to consult may be integrated into robust environmental assessment and
regulatory review processes.
[69]
In closing on this issue, strong practical
reasons support this conclusion. As Kirk N. Lambrecht, Q.C. notes in Aboriginal
Consultation, Environmental Assessment, and Regulatory Review in Canada
(Regina: University of Regina Press, 2013) at page 110:
[…] robust environmental assessment and
regulatory review of projects comprise a reasonable process for gathering and
assessing information on the significance of project impacts on Aboriginal
peoples. Integration will foster potential for reconciliation in regard to a
project to be served efficiently by project proponents, tribunals, the Crown,
the courts, and Aboriginal peoples. Integration early in the planning stages of
projects can foster effective and efficient dialogue and inform project
decision making. This is a good beginning to relationship building early in the
planning stages of project development.
[70]
In the present case the Crown engaged in no
additional or independent consultation. Therefore, the next issue to be
considered is whether in the present case the Crown’s duty to consult was
properly and adequately discharged through the Board’s process.
D. What was the scope of
the required consultation?
[71]
As described above, the Crown concedes that the
duty to consult was triggered, and submits that the scope of consultation
required was at the mid-range of the duty to consult spectrum. The applicants
argue that the duty to consult lies at the high end of the spectrum.
[72]
The depth or richness of the required consultation
increases with the strength of the prima facie Aboriginal claim and the
seriousness of the potentially adverse effect upon the claimed right.
[73]
In the present case, the Aboriginal right is
acknowledged by the Crown: under the Nunavut Land Claims Agreement the Inuit
possess a treaty right to continue hunting, fishing and harvesting in the
Nunavut settlement area. As to the potential effect of the Project upon this
right, migratory marine mammals harvested by the Inuit move through the Project
area. Potential adverse environmental effects found by the Board include:
i)
Sensory and physical disturbance to marine
mammals causing: temporary reduction in hearing sensitivity; permanent hearing
impairment; masked communication; and, changes in behaviour and distribution
including avoidance of the seismic ship and alteration of migration routes.
ii)
Potential disturbance to traditional and
commercial resource use if the survey changes the migration routes of marine
mammals or fish.
iii)
Adverse changes to marine life presence due to
spills or accidents releasing hydrocarbons into the marine environment.
[74]
In my view, the potential impacts of the project
are such that deep consultation was required. The inquiry now moves to whether
the nature and scope of the process before the Board was sufficiently deep and
thus whether it was proportionate to the preliminary assessment of the strength
of the case supporting the existence of the right and to the seriousness of the
potentially adverse effect on that right (Haida Nation at paragraphs 39,
43 to 45; Taku River at paragraphs 29 to 32; Rio Tinto at
paragraph 36).
E. Did
the consultative process fulfil the duty to consult?
[75]
The two principal arguments the applicants make
in respect of the adequacy of the consultation are:
i)
The Crown rejected the request made that it
conduct a Strategic Environmental Assessment (SEA).
ii)
The public participation afforded by the Board
was not a substitute for formal consultation and the proponents’ efforts were “woefully inadequate” (applicant’s memorandum of fact
and law at paragraph 113).
[76]
I disagree.
[77]
Dealing first with the request that the Crown
complete a SEA before issuing any licences authorizing seismic testing, the
applicants submit that there is an absence of baseline data on the ecology of
the Project area. In their view, this makes it impossible to make informed and
responsible policy decisions about extraction activities in the region.
[78]
In my view, adequate consultation did not
mandate the completion of a SEA for the following reasons.
[79]
First, adequate consultation does not require
agreement. Instead, accommodation requires that Aboriginal concerns be “balanced reasonably with the potential impact of the
particular decision on those concerns with competing societal concerns.
Compromise is inherent to the reconciliation process” (Taku River at
paragraph 2).
[80]
Second, the assertions that there is an adequate
baseline data on the ecology of the Project area and that the absence of such
data makes it impossible to make informed decisions are unsupported by the evidence.
[81]
Third, in section 3.2 of its environmental
assessment, the Board noted the absence of a SEA. It went on to note that the
Board was required to assess applications before it on a case-by-case basis. “The Board’s determination of the Project’s potential for
significant environmental impacts under COGOA is independent of possible or
pending strategic or regional assessments and planning or management processes,
although such information would be considered if it were available and
appropriate.” The applicants have not shown this to be an unreasonable
conclusion.
[82]
Finally, as will be discussed below in greater
detail, the GOA was issued on terms and conditions that require annual, ongoing
monitoring and reporting to Aboriginal communities. These forward-looking
conditions ameliorate any scientific uncertainty by allowing future input as
scientific knowledge may be acquired and as any impacts of the Project are
observed.
[83]
I now turn to the nature of the consultation
afforded to the applicants and affected Aboriginal groups.
[84]
At section 6.1 of its environmental assessment,
which appears to have been prepared sometime prior to June 26, 2014, the Board
summarized the consultation conducted by the project operator MKI. Points noted
by the Board were that:
- MKI had been
discussing the Project with Aboriginal groups since January 2011.
- In May 2011, the
Board received a petition from the community of Clyde River opposing the
project. Additionally in the following month the Arctic Fisheries Alliance
and the Baffin Fisheries Coalition filed letters of comment with the Board
indicating a need for further consultation between MKI and the stakeholders.
In July 2011, MKI postponed the Project until the 2012 season so that it
could invest more time and resources to consult with the Inuit communities
and other stakeholders, and achieve a better understanding of Inuit traditional
knowledge. Subsequently, MKI revised the Project commencement date several
times. The Board issued its 1st Information Request in February 2012
asking MKI to respond to the letters of comment received by the Board. In
response, MKI addressed the questions raised and committed to conducting
an Aboriginal Traditional Knowledge Study. It also indicated that it had
contracted a resource management company to assist in developing an
Aboriginal consultation plan. In May 2012, MKI outlined the details of its
consultation program in response to the Board’s 2nd Information Request.
- Following
community meetings held in June, October, November and December 2012, MKI
distributed Community Engagement Reports summarizing the meetings. The
summaries were sent to the affected communities and to the Board. In
response to comments raised at the June and October meetings, MKI
circulated a Question and Response Document, as well as a Supplementary
Report on marine seismic research and mitigation measures. These two
reports were translated into Inuktitut.
- General themes
that arose from the June 2012 community meetings included concerns
regarding the impact of the Project on traditional resources, a
willingness to collaborate to ensure negative effects were mitigated and
the need for more study/public education on the effect of seismic surveys
on fish and whales.
- Recommendations
made by community members during the meetings included the use of Passive
Acoustic Monitoring and the undertaking of an Inuit Qaujimatuqangit (IQ)
study (i.e. a study of Inuit Traditional Knowledge).
- MKI participated
in public meetings conducted by the Board in the communities of Pond
Inlet, Clyde River, Qikiqtajuak and Iqaluit from April 29, 2013 to May 2,
2013. Representatives from its resource management company, NEXUS Coastal,
PGS and TGS provided a presentation on the Project and when possible
answered questions related to it. A number of questions related to MKI’s
environmental impact assessment were not addressed during the public
meetings and MKI committed to following this up.
- In August 2013,
MKI filed with the Board responses to questions outstanding from the Board’s
public meetings. MKI had assessed the interaction between certain marine
mammal species and the Project, and used the results of this assessment to
inform its survey acquisition plan. Additional details were provided on
the role of Marine Mammal Observers (MMOs) and MKI committed to the installation
of Passive Acoustic Monitoring on board the seismic vessel to listen for
cetaceans. MKI also advised that the final observation reports of the MMOs
would be provided to the affected communities. Finally, MKI and its Community
Liaison Officers would work with the Arctic Fisheries Alliance and the
Baffin Fisheries Coalition to avoid interaction between the Project and
harvesting activities.
- After the public
comment period ended, MKI filed a reply with the Board in November 2013
discussing how it would use IQ in the Project design and how it had
accessed all publicly available IQ information about marine mammal
movements. MKI had applied to the Nunavut Research Institute for a Social
Sciences and Traditional Knowledge research permit in order to allow it to
conduct an IQ study. MKI would work with the communities of Pond Inlet,
Clyde River and Qikiqtajuak on the design of the IQ study.
- In the November
2013 reply MKI reiterated its commitment to continue consultation with the
communities during the Project and after field operations ended MKI
advised that it would have a Community Liaison Officer in each of Pond
Inlet, Clyde River, Qikiqtajuak and Iqualuit throughout the life of the
Project.
[85]
In section 6.2 of its environmental assessment,
the Board discussed the participation of Aboriginal groups in its regulatory
process. Points noted were:
- The Board’s regulatory
process was designed to facilitate the participation of Aboriginal groups
and to enable them to convey their views on the Project. The Board had
determined that public participation in the environmental assessment
process was appropriate and materials related to the environmental
assessment were placed on the public registry. Important Board documents
were translated into Inuktitut.
- On March 22,
2013, the Board issued a discussion paper that outlined potential
environmental effects, concerns raised and mitigation measures relevant to
the Project. The Board also conducted public meetings, on the dates set
out above, in the communities of Pond Inlet, Clyde River, Qikiqtajuak and
Iqualuit for the purpose of collecting oral comments on the Project. Transcripts
from the public meetings were posted on the public registry.
- During the Board’s
public meetings, community members sought information regarding the
effects of previous seismic programs on marine mammals, the acoustic
properties of marine seismic surveys, sound modelling for the Project and
potential effects of the Project on walruses, seals and polar bears. MKI
was unable to answer numerous questions from community members.
- On May 13, 2013,
the Board found there were deficiencies in the Project application
regarding the assessment of socio-economic impacts and Inuit consultation.
As a result, the Board suspended its assessment of the Project application.
Additional information was filed by MKI on August 30, 2013 and the Board
resumed its assessment of the application. The Board accepted written
comments on the project from the public until October 31, 2013.
- Aboriginal
groups actively participated during the environmental assessment process.
The Board received letters of comment from many Inuit communities and
organizations. During the Board’s public meetings, community members asked
questions of MKI and the Board, and expressed their concerns regarding the
Project.
- Issues and
concerns raised by Aboriginal people throughout the environmental
assessment process included: the environmental impacts on marine mammals
(including whale migration routes, calving and feeding), fish and
invertebrates; effects on traditional and commercial harvesting; adequacy
of mitigation of potential harm to marine mammals; the need for
discussions with communities and the use of IQ; the use of seismic data
and future exploration plans, the impacts of offshore drilling; the absence
of a regional environmental assessment or wildlife management planning
efforts; and, the management of waste, wastewater and ballast water.
[86]
In section 6.3 of the environmental assessment
the Board expressed its own views:
- The Board found
that MKI had made sufficient efforts to consult with potentially impacted
Aboriginal groups and to address the concerns that were raised.
- MKI enhanced its
consultation program and provided potentially impacted Aboriginal groups
with adequate information about the Project. It gave them opportunities to
make their views known in a timely manner to MKI and the Board.
- The Board found
that Aboriginal groups had an adequate opportunity to participate in the
Board’s environmental assessment process. Aboriginal groups filed letters
of comment with the Board. Aboriginal groups also had the opportunity to
ask questions and bring forward concerns during the Board’s public
meetings held in potentially affected communities.
- MKI had
implemented actions and made commitments as a result of its consultation
with Aboriginal groups. Examples cited by the Board included: contracting
NEXUS Coastal to assist in developing an Aboriginal consultation plan;
committing to employing two Inuit observers, one on the seismic vessel and
the other on the support vessel; committing to the installation of Passive
Acoustic Monitoring on board the seismic vessel to listen for marine
mammals; committing to conducting an IQ Study and to working with Inuit communities
on the design of the study; preparing a survey acquisition plan based on
an interaction assessment of the Project and certain marine mammal
species; committing to continuing consultation with Inuit communities
throughout the duration of the Project; committing to hiring Community
Liaison Officers in four of the communities to facilitate communication
between it and the communities; committing to sharing a final observation
report with Inuit communities; and committing to working with the Baffin
Fisheries Coalition and the Arctic Fisheries Alliance to avoid interaction
between their respective operations.
- The Board was of
the view that concerns regarding potential environmental effects from the
Project on traditional resource use were addressed by the mitigation
measures developed by MKI and set out in section 7.2 of the environment
assessment.
- The Board was of
the view that MKI meaningfully engaged with Aboriginal groups in respect
of the Project to an extent that was commensurate with the scope of the
Project. The Board expressed the expectation that MKI would continue its
consultation activities with Aboriginal groups throughout the lifecycle of
the Projects. Conditions outlined in section 7.4 of the environmental
assessment would require MKI to incorporate available IQ into the Project
design, to provide MMO reports and status updates of environmental
commitments to Inuit communities and to conduct Project update meetings.
[87]
The applicants do not challenge the Board’s
recitation of the facts. Instead, they argue that:
i)
As the Board noted, at the community meetings
the proponents were unable to answer questions put to them.
ii)
The August 30, 2013 response to the Board’s
notification that it had suspended its assessment of the Project application
was a 3,926 page “data dump” that was not
meaningful consultation. The vast majority of the response was not translated
into Inuktitut. Hard copies were sent only to four Hamlet offices. While posted
on the Board’s website, many residents of Clyde River do not have Internet
access. For those who do, the servers are too slow to download such large
documents; the Mayor was unable to download the document when he tried.
iii)
The proponents did not integrate IQ into the
design of the Project.
[88]
In my view these concerns may be addressed as
follows.
[89]
First, the proponents’ inability to answer
questions at the Board’s community meetings was the subject of the Board’s
letter of May 31, 2013 to the proponents. This letter required the proponents
to answer these questions. Subsequently, the Board accepted the adequacy of the
proponents’ responses.
[90]
Second, hard copies of the proponents’ August
30, 2013 response were couriered to the hamlet offices in Pond Inlet, Clyde
River, Qikiqtajuak and Iqualuit - the locations where Board sponsored public
meetings took place. There is no evidence that any other hamlet office
requested a copy of the response. Similarly there is no evidence that any
entity requested additional copies, or complained that the information was not
available on the Internet. The documents that were translated were the responses
to the unanswered questions identified by the Board in its letter of May 13,
2013, and a report published by Jasco Applied Sciences entitled “Underwater Sound Propagation from a 4118 [cubic inch]
Airgun Array.” These were viewed by NEXUS Coastal to be of greatest
interest to the communities involved in the consultation. The Board extended
the deadline for comment upon the August 30, 2013 filing and there is no
evidence any further extension was sought.
[91]
Third, Condition 7 of the Terms and Conditions
attached to the GOA requires MKI to file a report describing how IQ has been
considered and incorporated into the Project design. This report is to be filed
30 days prior to the commencement of the Project for each operational season.
It was not helpful, or consistent with reciprocal, good-faith consultation,
that both the Clyde River Hamlet Council and the HTO - Clyde River refused to
participate in the IQ study conducted by NEXUS Coastal on the proponents’
behalf (Affidavit of Christopher Milley at paragraphs 80-81).
[92]
In my view, the nature and the scope of the
process afforded by the Board was sufficient to uphold the honour of the Crown.
The process provided timely notice of the Project to potentially affected
Aboriginal groups, including the Inuit of Clyde River.
[93]
The proponents were required to provide detailed
information about the Project area and its design, to respond to comments
provided to the Board by affected Aboriginal groups, to consult affected
Aboriginal groups and to answer their questions.
[94]
The Board held meetings at which community
members could address concerns to the Board.
[95]
The proponents changed aspects of the Project’s
design as a result of the consultation process. In addition to the actions and
commitments described above by the Board, certain survey lines were shortened
in order to stop the survey process further away from the shore and/or the
border between the ocean and sea-ice in direct response to community concerns
(Milley affidavit at paragraph 39).
[96]
The Board’s regulatory process was designed to
facilitate the participation of Aboriginal groups and to enable them to convey
their views on the Project.
[97]
The Board in its environmental assessment assessed
the concerns raised by Aboriginal groups and the responses and undertakings of
the proponents. The report demonstrates that Aboriginal concerns were
considered and shows how those concerns were taken into account by the Board in
its report, and in the Terms and Conditions imposed on the GOA.
[98]
Those terms and conditions shape how the project
will go forward and allow Aboriginal concerns to be expressed at later stages
of the Project process. Thus:
•
Condition 8 requires MKI to file a MMO report
with the Chief Conservation Officer for each operational season, annually by
February 15. All such reports are to be accessible to the public and to be provided
to interested communities. The Board specifies nine categories of information
to be provided in these reports “at a minimum”.
•
Condition 9 requires MKI to provide an
environmental assessment update to the Chief Conservation Officer prior to each
operational season that includes any changes in its “Species
at Risk assessment and cumulative effects”.
•
Condition 10 requires MKI to conduct Project
update meetings in interested communities following each operational season for
the duration of the Project. It is to file with the Chief Conservation Officer
and the communities a summary of the meetings for each operational season. The
summaries must include the meeting minutes, identify concerns raised during the
meetings and explain how MKI will address these concerns.
[99]
As the Supreme Court noted in Taku River,
at paragraph 45, project approval is simply one step in the process by which
the development moves forward. Throughout all stages of the process the Crown
will be expected to continue to fulfil its duty to consult.
[100] For these reasons, I am satisfied that to date the Board’s process
afforded meaningful consultation sufficient that the Crown may rely upon it to
fulfil its duty to consult. The environmental assessment and the Terms and
Conditions imposed upon the GOA provide a reasonable degree of accommodation of
the applicants’ concerns about potential impacts caused by the Project upon
their section 35 harvesting rights.
IV.
Did the Board err in issuing the GOA?
A.
Were the Board’s reasons adequate?
[101] The applicants argue that the Board breached its duty to give
reasons. In their submission, the Board gave no reasons for its decision to
issue the GOA. To the extent the respondents argue that the decision should be read
along with the environmental assessment, this argument is said to be unavailing
because the environmental assessment dealt only with environmental concerns.
The COGOA also requires the Board to consider things such as the safety of the
Project and whether the proponents meet the financial responsibility
requirements. As well, the Board is to approve a project’s Development Plan and
ensure that the Minister has approved the required Benefits Plan. The Board’s
reasons are said not to deal with these issues.
[102] I see no merit in this submission. The Board’s reasoning is found in
the environmental assessment and the terms and conditions imposed on the GOA.
These reasons deal with the real controversy: what are the potential impacts of
the Project on the section 35 Aboriginal right to harvest wildlife.
[103] When the GOA is read in the light of the environmental assessment,
the terms and conditions imposed upon the GOA and the entirety of the Board’s
record, this Court is well able to understand why the GOA was issued.
[104] As to the other items the Board was required to address, Condition 2
and the second page of the GOA letter deal with project safety. A development
plan was not required under paragraph 5.1(1)(a) of the COGOA
because the seismic survey did not involve the development of a pool or field.
The applicants have acknowledged that the Minister approved the proponents’
benefit plan (applicants’ memorandum of fact and law at paragraph 99) and they
have not alleged that the proponents do not meet the financial responsibility
requirements.
[105] The Board’s reasons were adequate.
B.
Did the Board reasonably conclude that the
Project is not likely to result in significant adverse environmental effects?
[106] The applicants say that once the Board acknowledged that the Project
could have significant adverse environmental effects, the Board unreasonably
accepted that the proposed mitigation measures would limit the adverse effects.
The Board is said to have accepted “cherry-picked”
scientific articles without assurances the articles were current, relevant,
peer-reviewed or based on generally accepted marine biology methods.
[107] Again, I see no merit in this submission.
[108] The Board analysed the environmental effects in section 7 of the
environmental assessment. After setting out the potential adverse environmental
effects, the Board reviewed the proposed mitigation measures. It found those
measures would minimize the possibility of marine mammals occurring in close
enough proximity to the airgun discharge to suffer permanent or temporary
hearing damage or behavioural change.
[109] After concluding the Project was not likely to cause significant
adverse effects, the Board went on to consider any potential cumulative
environmental effects. In the Board’s view these would be minimal due to the
mitigation measures.
[110] There was an extensive evidentiary record before the Board. The
applicants have not pointed to any finding made by the Board that was not
supported by any evidence. The applicants have not established that the
evidentiary record before the Board was in any way flawed.
C.
Did the Board fail to consider Aboriginal and
treaty rights?
[111] The applicants argue that because the environmental assessment
contains no mention of the Inuit’s constitutional and treaty rights, or the
Crown’s duty to consult, the Board failed to consider these rights and
obligations.
[112]
Again I see no merit in this submission. As
explained above, the Board engaged in lengthy consideration about the extent of
Aboriginal consultation and the potential impacts to traditional harvesting.
The Board knew the Inuit had section 35 protected harvesting rights that had to
be taken into account.
V.
Was the Crown obliged to seek the advice of the
Nunavut Wildlife Management Board?
[113] The applicants argue that the Crown breached the terms of the
Nunavut Land Claims Agreement. Specifically, they say that Article 15.3.4
requires the Crown to consult the Nunavut Wildlife Management Board when Crown
conduct “would affect the substance and value of Inuit
harvesting rights and opportunities within the marine areas of the Nunavut
Settlement Area”.
[114] Again, I disagree.
[115]
Read in its entirety, Article 15.3.4 provides:
Government shall seek the advice of the NWMB
with respect to any wildlife management decisions in Zones I and II which
would affect the substance and value of Inuit harvesting rights and
opportunities within the marine areas of the Nunavut Settlement Area. The
NWMB shall provide relevant information to Government that would assist in
wildlife management beyond the marine areas of the Nunavut Settlement Area. [Emphasis
added.]
[116] From the wording of this provision the question to be answered is
whether the decision to issue the GOA was a “wildlife
management” decision.
[117] The Nunavut Wildlife Management Board is created in Part 2 of
Article 5 of the Nunavut Land Claims Agreement. Its powers, duties and
functions are enumerated in Articles 5.2.33 and 5.2.34. It is to be the main
instrument of wildlife management and the regulator of access to wildlife. The
scope of the Wildlife Management Board’s powers demonstrate that wildlife
management decisions are decisions that relate generally to things like
establishing levels of total allowable harvest and the management and
protection of wildlife and wildlife habitat.
[118] Wildlife management decisions do not include decisions such as the
issuance of a GOA. This is reflected in Article 12 of the Nunavut Land Claims
Agreement which deals with Development Impact. Under Article 12.2.2, it is the
Nunavut Impact Review Board that is to screen project proposals and review the
ecosystemic and socio-economic impact of proposed projects.
VI. Conclusion
[119] For the above reasons, I would dismiss the application for judicial
review with costs payable by the applicants to the Attorney General of Canada.
In these circumstances, I would have the proponents bear their own costs.
“Eleanor R. Dawson”
“I agree.
M. Nadon J.A.”
“I agree.
Richard Boivin J.A.”
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