Date:
20120830
Docket:
T-1995-10
Citation: 2012
FC 1043
Ottawa, Ontario,
August 30, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
REPRESENTATIVE
PROCEEDING
BETWEEN:
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GRAND CHIEF SAMUEL GARGAN on
his own behalf and on behalf of all members of the DEHCHO FIRST NATIONS
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Applicants
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and
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THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and TLICHO GOVERNMENT
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
This
is a motion by the respondents, The Attorney General of Canada and The Minister
of Indian Affairs and Northern Development, for an order dismissing the
applicants’ judicial review application of Order-in-Council (OIC) SI/2010-84 on
the grounds that it has been rendered moot. The respondents also request costs.
Background
[2]
This
case arises from the implementation of the Northwest Territories Protected
Areas Strategy (the NWT PAS). The NWT PAS was developed through
multi-stakeholder participation from government, Aboriginal organizations,
industry groups and non-industry organizations. It was intended to address
concerns about the effects of mining on unique and important ecological regions
in the Northwest Territories.
[3]
The
NWT PAS outlined the following eight-step process for accomplishing its goals:
1. Identify priority
areas of interest;
2. Prepare and
review protected area proposal at regional level;
3. Review and submit
proposal for candidate protected area status;
4. Consider and
where necessary, apply interim protection for candidate area;
5. Evaluate
candidate area;
6. Seek formal
establishment of protected area;
7. Approve and
designate protected area; and
8. Implement,
monitor and review protected area.
[4]
The
NWT PAS was officially signed in 1999 and shortly thereafter, the Horn Plateau
in the Edéhzhíe was announced as one of the first candidate sites under the NWT
PAS Implementation Phase.
[5]
The
Edéhzhíe area is situated in the Mackenzie Valley in the Dehcho Region, within
Treaty 11 in the Northwest Territories. The headwaters of three major drainage
basins are located in the Edéhzhíe area: the Horn, Willowlake and Rabbitskin Rivers. The Edéhzhíe area is valued for its natural, cultural and spiritual
importance by several First Nation communities. These communities are
represented by the applicant, the Dehcho First Nations.
[6]
Pursuant
to the first four steps of the NWT PAS process, the Edéhzhíe Candidate
Protected Area (the Candidate Area) has been protected since June 2002 through
successive OICs that have provided interim withdrawals of surface and
subsurface right dispositions in the area.
[7]
To
implement the fifth step of the NWT PAS process, an Edéhzhíe Working Group
comprising, amongst others, representatives of the applicants, Indian and Northern
Affairs and the Government of Northwest Territories was established to assess
the ecological, cultural and economic values of the area. After completing
several ecological and non-renewable resource assessments, the Edéhzhíe Working
Group made a joint recommendation that an area covering 57% of the original
Candidate Area, referred to as the Edéhzhíe Recommended Boundary Area (the Recommended
Area), be established as the permanent protected area. However, agreement was
not reached on how subsurface protection would be achieved.
[8]
Based
on the Edéhzhíe Working Group’s joint recommendation and pursuant to the sixth
step of the NWT PAS, the applicant Dehcho Grand Chief Sam Gargan and the Tlicho
Government Grand Chief Joe Rabesca submitted a formal request to the
respondent, the Minister of Indian and Northern Affairs, for a designation of
the Edéhzhíe National Wildlife Area with a permanent subsurface land withdrawal
in the Recommended Area.
[9]
Following
receipt of this request, the respondents adopted OIC SI/2010-84, which came
into force on October 31, 2010 for a two year period. Under this OIC, the
surface rights for the Candidate Area as a whole were withdrawn from
disposition. However, the underlying subsurface rights were not withdrawn and
were therefore available for disposition. This differed from previous interim
OICs over the Candidate Area, all of which had withdrawn both surface and
subsurface rights from disposition. As a result of this decreased level of
protection and the respondents’ diversion from the agreed upon NWT PAS
eight-step process, the applicants brought a judicial review application of OIC
SI/2010-84.
[10]
In
their judicial review application, the applicants applied for various
declarations and orders. They first applied to the Court for declarations that
the respondents were in breach of:
1. Their agreement
with the applicants, pursuant to the NWT PAS, to protect the Recommended Area;
2. Their agreement
to negotiate in good faith with the applicants on the protection of the
Candidate Area;
3. Their agreement
to provide interim protection of the Candidate Area pending the completion of
the NWT PAS Process; and
4. Their
constitutional obligation to consult and, if appropriate, accommodate the
applicants with respect to the decision to only extend partial protection to
the Candidate Area and make the subject lands available for disposition of
subsurface rights.
[11]
The
applicants then applied for, inter alia, orders:
1. Quashing OIC
SI/2010-84;
2. Directing the
respondents to protect the Recommended Area in accordance with the NWT PAS;
3. In the
alternative, directing the respondents to negotiate in good faith with the
applicants on the protection of the Recommended Area and to implement interim
protection of the Candidate Area pending completion of the NWT PAS;
4. Directing the
respondents to consult and, if appropriate, accommodate the applicants with
respect to the decision to only extend partial protection to the Candidate Area
and make the subject lands available for disposition of subsurface rights; and
5. Providing interim
protection of the Candidate Area, or alternatively the Recommended Area,
pending a final determination of this Court on that application, prohibiting
any prospecting, staking, locating or recording of any claim within that area.
[12]
Recently,
on December 8, 2011 and pursuant to subsection 23(a) of the Territorial
Lands Act, RSC 1985, c T-7, the Governor in Council passed OIC PC
2011-1537. On December 21, 2011, this OIC was registered as SI/2011-111.
[13]
This
new OIC repeals OIC SI/2010-84; the subject of the applicants’ judicial review
application. There are two main differences between the two OICs: OIC
SI/2010-84 applied to the Candidate Area as a whole whereas the new OIC
SI/2011-111 only applies to the Recommended Area; and OIC SI/2010-84 withdrew
only surface rights from disposition, whereas OIC SI/2011-111 withdraws both
surface and the subsurface rights from disposition in the subject area.
Issues
[14]
The
respondents submit the following points at issue:
1. Does the Court
have the jurisdiction to strike an application?
2. Is the
application for judicial review moot?
3. Is there any
reason that the Court should exercise its discretion to hear and decide the
application despite the matter being moot?
[15]
I
would rephrase the issues as follows:
1. Is the
application for judicial review filed by the applicants moot?
2. In the
alternative, if the application is moot, should this Court exercise its
discretion and hear the application?
Respondents’ Written Submissions
[16]
The
respondents submit that as OIC SI/2010-84 has been repealed by OIC SI/2011-111,
a judicial review of OIC SI/2010-84 would now only be of hypothetical interest
and is moot.
[17]
The
respondents submit that the Court does have the jurisdiction to strike out an
application where it is so clearly improper as to be bereft of any possibility
of success, or where it is clear that the relief sought has become moot.
[18]
The
respondents submit that as OIC SI/2010-84 is now repealed, there is no longer
any live controversy with regards to the rights of any of the parties relating
to it. Thus, the application for judicial review of OIC SI/2010-84 is moot.
[19]
Despite
a matter being moot, the respondents acknowledge that the Court has the
discretion to determine a matter if the circumstances so warrant. However, such
discretion should be exercised sparingly and with consideration of the
appropriate factors. In referring to this Court’s decision in Democracy
Watch v Canada (Attorney General), 2004 FC 969, [2004] FCJ No 1195, the
respondents submit that the following three part framework should be applied in
considering whether to hear an application despite it being moot:
1. Is there a
continuing adversarial relationship?
2. Are there any
special circumstances to warrant applying scarce judicial resources to
resolving the legal issues posed in the application?
3. Would the Court
be stepping beyond its adjudicative role if it were to continue to hear the
application?
[20]
First,
the respondents submit that as OIC SI/2010-84 is no longer in force and as
there is nothing deriving from its prior existence that could currently affect
the parties, there are no collateral consequences that may arise if this Court
does not hear the application. The respondents submit that an adversarial
relationship between the parties, with regards to the subject matter of the
applicants’ judicial review application, no longer exists.
[21]
Second,
the respondents submit that there are no special circumstances to justify
continuing this judicial review. The respondents note that as OIC SI/2010-84 no
longer has any effect on the legal rights of the parties, the requests for
relief are no longer relevant. The respondents also highlight that OIC
SI/2011-111 provides part of the relief sought in the applicants’ judicial review
application; namely, interim protection of the Recommended Area.
[22]
In
addition, the respondents submit that there is no reason to expect that the
legal issues raised in this application are likely to recur frequently or that
cases raising the same points will always disappear before being resolved. The
respondents note that one of the central issues raised in this application,
whether the Crown’s duty to consult applies to legislative acts such as OICs,
is currently before the BC Court of Appeal in the appeal of the decision of Adams
Lake Indian Band v British Columbia (Lieutenant Governor in Council), 2011
BCSC 266, [2011] BCJ No 363.
[23]
The
respondents also submit that there is nothing lost, either to the parties or to
society in general, if the issues raised in the applicants’ judicial review
application are not decided at this time. The respondents note that OIC
SI/2011-111 evidences that the goal of creating a National Wildlife Area in the
Recommended Area continues. Thus, there are no social costs associated with
leaving the application undecided.
[24]
Third,
the respondents submit that the Court must be careful not to depart too far
from its traditional role of resolving disputes. As there is no longer a
dispute affecting the rights of the parties or the public in general, the
respondents submit that there is no compelling reason for the Court to hear and
rule on this application. Thus, convening a hearing and issuing a decision
would serve no useful purpose.
[25]
For
these collective reasons, the respondents submit that the applicants’ judicial
review application should be struck, together with an award of costs for this
motion.
Written Submissions of the
Applicants (in the Judicial Review) Dehcho First Nations
[26]
The
applicants firstly submit that the application for judicial review is not moot
and therefore the Attorney General’s motion should be dismissed.
[27]
In
the alternative, the applicants submit that should the motion be granted, then
they should be granted lump sum costs of the main proceeding.
[28]
The
applicants submit that the respondents do not meet the first part of the test
in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] SCJ No
14, as there is still a live controversy between the parties.
[29]
If
the Court grants the Attorney General’s motion to dismiss, the applicants
should be awarded their costs of the main application for judicial review and
of this motion.
Written Submissions of the Tlicho
Government
[30]
The
Tlicho Government supports the submissions and arguments of Dehcho First Nations.
[31]
The
Tlicho Government also submits that interim protection should be provided for
the subject area pending completion of the PAS process.
[32]
The
Tlicho Government submitted that the issues raised are not moot.
[33]
The
Tlicho Government submitted that the application for judicial review should be
scheduled for hearing.
[34]
As
to costs, the Tlicho Government adopts the position of the applicants.
Analysis and Decision
[35]
Issue
1
Is the application for
judicial review filed by the applicants moot?
The doctrine of mootness
permits a Court to refuse to decide a case if it only raises a hypothetical or
abstract question (see Borowski above, at paragraph 15). The first step
in determining mootness is to assess whether the Court’s decision will resolve
a controversy that affects, or may affect, the rights of the parties. The
controversy must be live both when the proceedings are first brought, as well
as when the Court is called on to decide the case (see Newfoundland and
Labrador v Canada (Minister of Transport), 2003 FC 1228, [2003] FCJ No 1571
at paragraph 19; and Borowski above, at paragraphs 15 and 17).
[36]
In
this case, there was clearly a controversy when the applicants first brought
their judicial review application. This controversy arose from the respondents’
early adoption of OIC SI/2010-84, which rendered subsurface rights available
for disposition in the Candidate Area prior to the completion of the agreed
upon NWT PAS eight step process. Nevertheless, the respondents argue that the
repeal of OIC SI/2010-84 by OIC SI/2011-111 has eliminated this controversy and
there is thus no live controversy currently before the Court.
[37]
Although
OIC SI/2011-111 removes both surface and subsurface rights from disposition, it
does so only in a portion of the Candidate Area; namely, in the Recommended
Area. Surface and subsurface rights are still available for disposition on the
lands contained within the Candidate Area, but outside the Recommended Area
boundaries. This is not insignificant, as the Recommended Area only comprises
57%, or just over half, of the territorial lands covered by the Candidate Area.
[38]
Further,
although the Edéhzhíe Working Group’s recommendation only pertained to the
Recommended Area, the last steps of the NWT PAS process remain incomplete.
Until the entire eight step NWT PAS process is complete, interim protection to
the entire Candidate Area should remain in place. The seventh step of the NWT
PAS requires that “appropriate regional bodies co-sign and announce protected
area establishment agreement”. The eighth and final step in the NWT PAS process
is to manage, monitor and review the protected area. If surface and subsurface
rights on the lands outside the Recommended Area, but within the Candidate
Area, are available for disposition during this important review stage, it will
be more difficult to incorporate all or portions of these lands at a later
stage if the need is identified during the final stage. As noted in the initial
NWT PAS Bi-Annual Report (1999-2001): “interim protection helps to ensure that
the special values of the candidate site are not jeopardized during the next
steps in the planning process”.
[39]
Interim
protection was also included by the applicants in the relief they sought in
their judicial review application. However, no such interim protection is
provided under OIC SI/2011-111, whose scope is limited to the Recommended Area.
Thus, contrary to the situation in Borowski above, some of the relief
sought by the applicants in this case does still remain relevant (at paragraph
26).
[40]
There
also remains a live controversy with regards to the respondents’ unilateral
adoption of OIC SI/2010-84. As I found in Newfoundland above, a live
controversy can exist where a question arises as to the Minister’s lawful
exercise of its power (at paragraph 20). In this case, the respondents’ action
in enacting OIC SI/2010-84 was clearly questionable, particularly in light of
the applicants’ asserted Aboriginal and treaty rights and title to the Edéhzhíe
area, which attracts the honour of the Crown. The fact that the respondents
have repealed and replaced OIC SI/2010-84 enforces this finding.
[41]
In
addition, this is an important issue to address at this point, as the Edéhzhíe
Candidate Area is only one of the first few areas to be protected under the NWT
PAS process. The treatment of this area will therefore serve as an important
precedent for the future protection of other unique and important ecological
areas across the Northwest Territories.
[42]
For
these collective reasons, I find that a live controversy does still exist.
Therefore, the applicants’ judicial review application is not moot and should
be heard by this Court.
[43]
Issue
2
In the alternative, if
the application is moot, should this Court exercise its discretion and hear the
application?
Despite a matter being moot,
this Court retains the discretion to determine a matter if the circumstances so
warrant. In Borowski above, Mr. Justice Sopinka explained that the
following criteria were relevant to exercising this discretion (at paragraphs
29 to 42):
1. Continued
adversarial relationship;
2. Judicial economy;
and
3. Court’s role as
the adjudicative branch.
[44]
Although
all three factors are relevant, Mr. Justice Sopinka acknowledged that “[t]he
presence of one or two of the factors may be overborne by the absence of the
third, and vice versa” (see Borowski above, at paragraph 42).
[45]
With
regards to the first criteria, Mr. Justice Sopinka explained that (see Borowski
above, at paragraph 31):
[…]
although the litigant bringing the proceeding may no longer have a direct
interest in the outcome, there may be collateral consequences of the outcome
that will provide the necessary adversarial context […] [emphasis added]
[46]
In
this case, there are clearly possibilities of collateral consequences. As
mentioned above, the new OIC SI/2011-111 does address the disposition of
subsurface rights in the Recommended Area, but does not provide interim
protection to the lands located outside the Recommended Area boundaries, but
within the Candidate Area boundaries. It is thus likely that if this judicial
review application is not heard, the applicants will bring a judicial review
application of OIC SI/2011-111. In addition, the Edéhzhíe Candidate Area is
only one of the first areas to be protected under the NWT PAS process. Thus,
the manner in which the different parties treat the NWT PAS process for this
area will likely have an important impact on the success or failure of future
efforts made within this process. Finally, during the time that OIC SI/2010-84
was in effect, prior to its repeal by OIC SI/2011-111, it is possible that
subsurface rights were claimed throughout the entire Candidate Area. These
potential collateral consequences provide the necessary adversarial context
favouring this Court’s exercise of its discretion to hear the applicants’
judicial review application.
[47]
Turning
to the second criteria, Mr. Justice Sopinka explained in Borowski above:
34. […]
The concern for judicial economy as a factor in the decision not to hear moot
cases will be answered if the special circumstances of the case make it
worthwhile to apply scarce judicial resources to resolve it.
35. The
concern for conserving judicial resources is partially answered in cases that
have become moot if the court's decision will have some practical effect on
the rights of the parties notwithstanding that it will not have the effect
of determining the controversy which gave rise to the action. […]
36. Similarly
an expenditure of judicial resources is considered warranted in cases which
although moot are of a recurring nature but brief duration […] The mere
fact, however, that a case raising the same point is likely to recur even
frequently should not by itself be a reason for hearing an appeal which is
moot. It is preferable to wait and determine the point in a genuine adversarial
context unless the circumstances suggest that the dispute will have always
disappeared before it is ultimately resolved.
37. There
also exists a rather ill-defined basis for justifying the deployment of
judicial resources in cases which raise an issue of public importance of
which a resolution is in the public interest. The economics of judicial
involvement are weighed against the social cost of continued uncertainty in the
law. […] [emphasis added]
[48]
In
this case, there are several factors that justify the use of judicial resources
to hear the applicants’ judicial review application. Again, this is one of the
first implementation efforts of the NWT PAS process; a process produced from
collective multi-stakeholder efforts and intended for recurring and wide use to
protect ecologically sensitive lands across the Territory. In Newfoundland
above, I also considered that it was important that the applicable government
policy had been extended to apply to several other sites (at paragraph 28).
[49]
This
case also raises questions of public importance regarding the relationship
between the Crown and Aboriginal peoples. When such questions arise, it is
important to recall that the honour of the Crown is always at stake in its
dealings with Aboriginal peoples (see R v Sparrow, [1990] 1 S.C.R. 1075,
[1990] SCJ No 49 at paragraph 75; R v Marshall, [1999] 3 S.C.R. 456, [1999]
SCJ No 55 at paragraphs 49 and 51; and Haida Nation v British Columbia
(Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 at paragraph 16). As Chief
Justice McLachlin explained in Haida Nation above, at paragraph 17:
The
historical roots of the principle of the honour of the Crown suggest that it
must be understood generously in order to reflect the underlying realities
from which it stems. In all its dealings with Aboriginal peoples, from the
assertion of sovereignty to the resolution of claims and the implementation of
treaties, the Crown must act honourably. Nothing less is required if we are
to achieve "the reconciliation of the pre-existence of aboriginal
societies with the sovereignty of the Crown": Delgamuukw, supra,
at para. 186, quoting Van der Peet, supra, at para. 31. [emphasis
added]
[50]
Thus,
in summary, I find that this case raises sufficient special circumstances to justify
the use of judicial resources.
[51]
Third,
Mr. Justice Sopinka explained that the Court must be cognizant of its proper
law-making function. Else, “[p]ronouncing judgments in the absence of a dispute
affecting the rights of the parties may be viewed as intruding into the role of
the legislative branch” (see Borowski above, at paragraph 40). As
mentioned above, although OIC SI/2011-111 provides a greater level of
protection within the Recommended Area, it leaves a large portion of land
outside these boundaries unprotected from surface and subsurface claims while
the final steps of the NWT PAS process remain incomplete. I therefore do not
find that this Court will be intruding into the role of the legislative branch
by hearing the applicants’ application.
[52]
Further,
this issue should be decided at this time, because until it does, the lands
outside the Recommended Area, but within the Candidate Area, continue to be
available for resource staking and claiming. Such staking or claiming raises
the potential concerns from the effects of mining on ecologically sensitive
lands that the NWT PAS was intended to address. Such effects, although local in
the short-term, raise potential long-term environmental impacts with broad
social costs affecting Canadians across the country.
[53]
In
summary, even if the applicants’ judicial review application is considered
moot, I find that this Court should exercise its discretion and hear the
application due to the special circumstances that it presents.
[54]
The
motion of the respondents is dismissed with costs to the applicants and Tlicho
Government.
ORDER
THIS
COURT ORDERS that the motion of the respondents is
dismissed with costs to the applicants and Tlicho Government.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Territorial
Lands Act,
RSC 1985, c T-7
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23. The
Governor in Council may
(a) on
setting out the reasons for withdrawal in the order, order the withdrawal of
any tract or tracts of territorial lands from disposal under this Act;
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23. Le
gouverneur en conseil peut :
a)
par décret motivé, déclarer inaliénables des parcelles territoriales;
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