Date: 20091126
Docket: T-645-09
Citation: 2009 FC 1214
Ottawa, Ontario, November 26,
2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JORDIE PROVOST
Applicant
and
THE MINISTER OF INDIAN AFFAIRS
AND
NORTHERN DEVELOPMENT, ALTALINK
MANAGEMENT LIMITED AND
PIIKANI BAND COUNCIL
Respondents
REASONS FOR ORDER AND ORDER
[1]
AltaLink
Management Limited has all the necessary Alberta and federal government
approvals to construct a high-voltage electrical transmission line from Pincher
Creek to Lethbridge. Because
part of the intended route runs across the Piikani Indian Reserve No. 147, the
necessary approvals include a permit from the Minister of Indian and Northern
Affairs and a band council resolution. The band council resolution consenting
to the project was passed in June 2008 following which the Minister issued the
permit the following month.
[2]
Nine
months later, Jordie Provost, a Band member, applied to this Court for orders
setting aside both the permit and the supporting band council resolution.
Broadly speaking, it is Mr. Provost’s position that he was entitled to prior
notice; that the Minister and the Band Council had a duty to consult with him,
and indeed with the entire Band; that he was given no opportunity to make
submissions or comments and that the Minister and the Band Council were obliged
to consider the comments he would have made and to take them into account
before deciding whether to pass a resolution and to issue the permit.
[3]
The
two applications, T-645-09 and T-646-09, which were later consolidated under
court docket number T-645-09, are opposed by the Minister, the Piikani Band
Council and AltaLink.
ISSUES
[4]
The
underlying legislation is section 28 of the Indian Act which provides:
|
28. (1) Subject to subsection (2), any
deed, lease, contract, instrument, document or agreement of any kind, whether
written or oral, by which a band or a member of a band purports to permit a
person other than a member of that band to occupy or use a reserve or to
reside or otherwise exercise any rights on a reserve is void.
(2) The Minister
may by permit in writing authorize any person for a period not exceeding one
year, or with the consent of the council of the band for any longer period,
to occupy or use a reserve or to reside or otherwise exercise rights on a
reserve.
|
28. (1) Sous réserve du paragraphe
(2), est nul un acte, bail, contrat, instrument, document ou accord de toute
nature, écrit ou oral, par lequel une bande ou un membre d’une bande est
censé permettre à une personne, autre qu’un membre de cette bande, d’occuper
ou utiliser une réserve ou de résider ou autrement exercer des droits sur une
réserve.
(2) Le ministre
peut, au moyen d’un permis par écrit, autoriser toute personne, pour une
période maximale d’un an, ou, avec le consentement du conseil de la bande,
pour toute période plus longue, à occuper ou utiliser une réserve, ou à
résider ou autrement exercer des droits sur une réserve.
|
[5]
The
applications give rise to the following issues:
a)
Was
the Minister under a legal duty to consult with Mr. Provost before issuing the
permit? If so, was that duty satisfied?
b)
Is
the band council resolution a decision of a federal board, commission or other
tribunal subject to judicial review by this Court?
c)
Was
the Band Council under a legal duty to consult with Mr. Provost before passing
the resolution? If so, was that duty satisfied?
d)
Does
Mr. Provost have standing to make these applications? The normal rule is that
only persons “directly affected” have standing. If Mr. Provost was not directly
affected, should he be given public interest standing?
e)
Were
the applications filed within time? The normal delay is 30 days which begins to
run from the date the decision was first communicated to the applicant. If not,
should the Court, in its discretion, extend the delays?
f)
In
any event, should the Court, in its discretion, refuse to grant the relief
sought by Mr. Provost considering the delays and that the respondents had
begun to act on the permit before the applications for judicial review were
filed?
DECISION
[6]
In
my opinion:
a)
The
Minister was under no legal duty to consult with Mr. Provost before issuing the
permit. However, if he had such a duty, that duty was satisfied;
b)
In
passing the resolution favouring a permit, the Band Council was acting as a
federal board, commission or tribunal, and the resolution is subject to
judicial review;
c)
The
Band Council was under no legal duty to consult with Mr. Provost before passing
the resolution. However, if it had such a duty, that duty was satisfied;
d)
Mr.
Provost has standing to make the specific allegations set out in his
applications;
e)
Given
the answers above, it is not necessary to consider whether the applications
were timely;
f)
In
any event, should holdings a) and c) be wrong, nevertheless, the Court, in its
discretion, should refuse to grant Mr. Provost any remedy.
THE
PROJECT
[7]
The
proposed 240 kilovolt (kV) transmission line is intended to address the need
for additional wind power generation in southwest Alberta. The project
involves the construction of a new substation, the expansion of two existing
substations and the construction of over 80 km of double-circuit 240 kV
transmission line. The planned right-of-way would cross federal land, including
26 kilometres of the Piikani Reserve, another reserve, the Canadian Food
Inspection Agency’s property at its Lethbridge laboratory, privately owned
land and unoccupied Alberta Crown land.
[8]
The
Alberta Electric System Operator had determined that the project was needed. It
was approved by the Alberta Energy and Utilities Board and assigned to AltaLink
through regulations.
[9]
The
obvious route, which runs more or less in a straight line, crosses the Piikani
Reserve from the southwest to the northeast. A lower voltage transmission line is
already in place, and so the intention is, to the extent practical, to follow
the existing right of way. However, AltaLink has always made it clear that if
it could not conclude arrangements with the Piikani Nation, it was prepared to
route the transmission line around the reserve.
THE
EVIDENCE
[10]
The
sequence of events leading up to the impugned band council resolution and ministerial
permit are not in controversy. What is in controversy is what Mr. Provost knew,
or should have known, at various times and whether his sanguinity until eight
months after the requisite permit was issued was justified.
[11]
Evidence
in affidavit form was forthcoming from Mr. Provost; Derek Green who is the
Alberta Regional Manager of Lands and Environment for Treaty 7 First Nations at
Indian and Northern Affairs Canada (“INAC”); Kirby Smith, currently the Manager
of Resource Development and formerly the Executive Coordinator of the Piikani Nation;
Stephen Hodgkinson, AltaLink’s Vice-President, Corporate Development and
Business Partnership, and Conrad Journeault, AltaLink’s right-of-way planner.
All but Mr. Journeault were cross-examined.
[12]
According
to Mr. Provost, had he been given the opportunity he would have raised the
following concerns:
a)
The
high-voltage overhead transmission line (HVOTL) project will be much larger in
scale than the existing transmission line that runs across the Reserve;
b)
Use of the
existing right-of-way (ROW) where the other transmission line is located and
information about what will happen to the old transmission line. The HVOTL
project does not follow the existing transmission line ROW which results in the
creation of a large utility corridor and the taking up of additional Reserve
land;
c)
The HVOTL
project will significantly increase the voltage of electricity transmission
beyond that of the existing transmission line;
d)
The health
effects on his family and himself from exposure to the electromagnetic fields (EMF)
emitted by the HVOTL project and the existing transmission line;
e)
The health
effects on other Piikani members;
f)
Whether
the routing of the HVOTL project near his Residence and others on Reserve is
appropriate given that there are a number of young children in homes and
attending the Reserve school;
g)
The
location of the HVOTL project and the new ROW;
h)
The
stability and safety of the HVOTL structure itself;
i)
The loss
of use and enjoyment of his Residence, particularly, the view therefrom which
will be obstructed by the project;
j)
There is a
serious housing shortage on the Reserve which makes it extremely difficult for him
to find a new residence and he may not be able to relocate even if he wanted or
needed to as a result of the ROW and the proposed HVOTL project. It is
important to him that he continue to be able to reside in his Residence for
several reasons:
(i)
The
location of the Residence allows him to live within close proximity to his
family members, which is important to him;
(ii)
He enjoys
the Residence and its location generally, and does not want to leave; and
(iii)
Over the
course of the last twenty (20) years, he and his family have invested
significant time and money into improving and maintaining the Residence.
k)
There was
no participation of the broader membership of the Piikani nation in a
discussion of whether the HVOTL project is in the best interests of members of
the Piikani nation and whether the land should be used for this purpose; and
l)
Any
additional comments he may have following a review of the HVOTL project.
[13]
AltaLink’s
negotiations with the Chief and the Band Council were well underway in 2004 when
a memorandum of understanding, which contemplated a joint venture with respect
to a new transmission line on Piikani land, was executed. It is noteworthy that
at that time Mr. Provost was one of the 12 band councillors. He had been
elected in early 2003 and remained in office until January 2007.
[14]
Mr.
Provost claims never to have seen this memorandum of understanding, that there
was a split in the Band Council and that there had been some secret meetings to
which he had not been invited. Mr. Green agrees that there was some dysfunction
but says that only occurred later on in that Band Council’s term when one
councillor died and another resigned, making it difficult to obtain the
required quorum of seven. Mr. Hodgkinson, who only came on board in 2006, was
also of the view that the Council was dysfunctional until a new chief and slate
of councillors were elected in 2007. Be that as it may, Mr. Provost admitted in
cross-examination that contrary to his first affidavits, in which he said that
the discussions during his term in office were preliminary in nature, they were
more detailed than that. Indeed the discussions at that point were between AltaLink
and Piikani Energy Corporation, a wholly-owned subsidiary of Piikani Investment
Corporation, which in turn was owned by the band. Mr. Provost was a director of
the Piikani Utilities Corporation, but appears to have paid no attention to what
was going on. He said “things slip by me.”
[15]
In
April 2005, the Band Council carried a motion approving a right-of-way for the
proposed transmission line. Mr. Provost was not at that meeting and cannot
recall whether he received notice thereof, but points out that no specific
route was then mapped out.
[16]
In
August 2005, the Chief wrote to the Alberta Energy and Utilities Board
confirming that the Band Council had approved a land corridor through the
reserve and that they objected to any alternative route around the reserve. Again
Mr. Provost professes no knowledge of this letter. One can well understand the
Chief’s point. Although the precise details were not yet worked out, in
consideration of granting a right-of-way, the Piikani Nation would receive a considerable
amount of money upfront, annual payments, jobs would be created and it would be
given the opportunity to buy into a joint venture with AltaLink.
[17]
On
27 January 2006, the Band Council passed a resolution with regard to the
mandate of the Piikani Energy Corporation with respect to energy projects. In
addition to the recital stating:
Whereas pursuant to the inherent rights
and powers granted under the Indian Act, R.S.c. I-6, the Chief and
Council of the Piikani Nation are empowered to exercise decisions on behalf of
the Piikani Nation;
reference
was made a number of previous band council resolutions covering wind farm and
hydro electric projects. It was resolved that Piikani Energy Corporation was
authorized:
…to take all steps necessary to negotiate
with and reach agreement with Altalink Management Limited subject to approval
by Chief and Council on an arrangement to construct and operate and finance a
proposed 240kV transmission line on Piikani lands and involve the Piikani
Nation in the ownership thereof.
[18]
Mr.
Provost signed that resolution.
[19]
It
seems that he did not then, nor at any previous time, nor at any subsequent
time before March or April 2009, voice any concern. In cross-examination he
said he had not objected to the transmission line at that point in time. Yet, he
had to be aware that the route as finalized could well be in close proximity to
his house as there was already a transmission right-of-way nearby.
[20]
He
also concedes that he was at a meeting of the Band Council with representatives
of INAC in October 2006. Again he was not concerned that the new line was
considerably bigger than the existing line, and he was not aware of adverse
health effects because of electromagnetic fields. He professes to be under the impression
that that was neither the time nor the place to raise any concerns. Concerns
ought only to be raised once the negotiations were essentially complete.
[21]
During
the more than two years from when his term of office expired until March 2009,
he seems to be singularly unaware of ongoing discussions. In March 2007,
approximately 600 notices of a proposed April meeting of the band were mailed
to Piikani members living on the reserve within 800 metres of the project. In
addition, AltaLink information packages were hand-delivered. Mr. Provost denies
receiving the information package. He states he lived in unit 4B. AltaLink’s
Mr. Journeault, together with members of the band, was hand-delivering
information packages. The list he had, which was prepared by the band, showed a
unit 4A against which Mr. Provost’s name appeared and a unit 4B with a question
mark. Mr. Journeault checked off 4A meaning that he hand-delivered the
information package to someone at that address. He cannot recall whether or not
that person was Mr. Provost.
[22]
Mr.
Provost makes much of the fact that the scheduled band meeting in April was
cancelled, but, consistent with his general lack of interest, there is no
indication that he was aware of the meeting.
[23]
A
few months later the Band Council hosted an open house involving various booths
and materials, including the AltaLink project.
[24]
Following
negotiations among the Band Council, AltaLink and INAC, the Band Council passed
a requesting the Minister to grant a section 22 permit to AltaLink.
[25]
In
October 2007, a resource committee newsletter was published within the reserve
which gave considerable detail of the project. Again Mr. Provost professes no
knowledge of that newsletter, but in any event submits that since the
newsletter stated that negotiations were ongoing, it was still premature to
raise concerns.
[26]
In
addition, public notice was given of hearings of the Canadian Environmental
Assessment Agency and the Alberta Utilities Commission, both of which concluded
there was no evidence of health issues.
[27]
According
to Mr. Provost, during the period from January 2007 until early 2009, the HVOTL
project occasionally came up in conversations he had with other band members.
Their discussions consisted of speculation about when the project might be
constructed and what jobs might possibly be created. Yet, when in the course of
one of these conversations in March 2009 he was told that the project was going
ahead, he contacted band officers and was readily provided with a copy of the
permit, a permit which had already been registered.
THE
MINISTER’S DUTY TO CONSULT
[28]
It
is not contested, and indeed following the decision of the Supreme Court in Opetchesaht
Indian Band v. Canada, [1997] 2 S.C.R. 119, it could hardly be contested,
that the issuance of this right-of-way for 65 years or as long as required,
even though subject to renewals, was of a temporary nature, so that the
required approval was that contemplated by section 28(2) of the Indian Act.
The Act contains a number of provisions relating to the acquiring of interests
in reserve land by non-band members. Section 28(2) requires consent of the band
council. Other sections dealing with approvals are 20(2), 35, 37, 38, 53(1)(b),
58(1) and 58(3). Some specifically require a band membership vote, such as an
absolute surrender of reserve land which, in accordance with section 39, must
be assented to by a majority of the electors of the band.
[29]
This
is not a case in which the Minister was under notice of a dispute within the
band, or one in which more than one group claimed to be the band chief and
council. The resolution was unanimous, and the Minister was under no obligation
to pierce the corporate veil, so to speak.
[30]
In
this case, in line with Opetchesaht, above, collective consent was given
by way of a resolution of the Band Council. Indeed, the British Columbia Court
of Appeal noted in its earlier decision in Opetchesaht, (1994) 41
B.C.L.R. (2d) 145 at paragraph 30 (Q.L.), that section 28(2) is consistent with
Parliament’s intention to broaden the operation of representative government in
band affairs.
[31]
In
the alternative, if the Minister was under a duty to consult, that duty was
discharged. In Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, Madam Justice L’Heureux-Dubé set out a non-exhaustive list
of five factors to aid in determining the scope of the duty to be procedurally
fair in specific situations. The five factors are:
a)
The
nature of the decision being made and the procedure and process followed in
making it;
b)
The
nature of the statutory scheme and the terms of the statute pursuant to which
the body operates;
c)
The
importance of the decision to the individual or individuals affected;
d)
The
legitimate expectations of the person challenging the decision; and
e)
The
choice of procedure made by the agency itself.
[32]
The only
procedural requirement was that imposed by section 28(2) of the Act, and that
was satisfied by the band council resolution. The statutory scheme of the Act
sets out various safeguards. Section 28(2) is clearly at the lower end of the
spectrum. There is no evidence of legitimate expectations. There is no basis
for Mr. Provost’s position that he was entitled to a consultation.
[33]
Membership,
be it in a band, or as an ordinary resident or citizen, has both rights and
obligations. Mr. Provost had ample opportunity to voice concerns years before
the permit was issued. Indeed some concerns he expressed were covered in the
environmental assessment report referred to above. Many of his concerns are
inconsistent one with the other.
IS
THE BAND A FEDERAL BOARD, COMMISSION OR TRIBUNAL?
[34]
All
parties assumed that the Band Council, in passing the resolution, was making a
decision as a federal board, commission or tribunal. I agree that it was acting
pursuant to statutory authority under the Indian Act. However, in terms of a
checklist, it is important to keep in mind that not all band decisions are
decisions subject to judicial review (Devil’s Gap Cottagers (1982) Ltd. v.
Rat Portage Band No. 38B, 2008 FC812,
[2009] 2 F.C.R. 267).
[35]
It
is in this context that I have considered, and left aside, the Band Council’s submissions
that the decision was legislative in nature, and made on broad grounds of
public policy, as the lands subject to the permit are being taken up for public
purposes, and as the Piikani Nation is receiving an economic benefit therefrom.
Many decisions of this nature are subject to judicial review.
THE
BAND COUNCIL’S DUTY TO CONSULT
[36]
I
find that the Chief and the Band Council were under no legal duty to consult
with Mr. Provost. It may have been politically wise to do so. This is an
elected Chief and Band Council who always face the revenge of the ballot box.
The same overall reasoning which led to my conclusion that the Minister owed no
duty applies to the band as well.
[37]
Mr.
Provost certainly had no legitimate expectations that he would be consulted as
an ordinary band member as one of the resolutions he signed as a band
councillor clearly stated that it was the opinion of the Chief and the Band Council
that they spoke for the nation.
[38]
In
any event, he had every opportunity to speak his mind, and chose not to do so.
Whether or not he thought it premature to speak when he had the opportunity is
not material. Although the final details were not worked out until 2008, the
parameters were always obvious, and if the Band Council had a duty, it
discharged it by sponsoring various meetings and by issuing newsletters.
DOES
MR. PROVOST HAVE STANDING?
[39]
Mr.
Provost has standing to assert the specific allegations in his applications. He
asserts that there was a duty to consult. Obviously if there were such a duty,
he would have been “directly affected” by any failure do so. It is important to
note that Mr. Provost does not assert that the decision of the Band Council to
support the project and the Minister’s decision to issue the permit were
unreasonable. It is beyond the scope of these judicial reviews to comment as to
whether he would have standing were he to have made such allegations.
SHOULD
THE RELIEF BE GRANTED?
[40]
The
time cherished remedies of mandamus, certiorari, quo warranto,
prohibition, injunction, declaratory and other relief lumped together in
sections 18 and 18.1 of the Federal Courts Act are discretionary in
nature. Section 18.1(4) of the Act provides that the Court may grant
relief. This is consistent with the whole history of prerogative writs and
extraordinary remedies (Canadian Pacific Ltd. v. Matsqui Indian Band,
[1995] 1 S.C.R. 3 at paragraph 30 and following, and 112).
[41]
Had
he been the least bit attentive, Mr. Provost not only could have addressed the
Minister, and the Band Council, but other decision makers as well, decision
makers whose approval was also necessary in order for the project to go
forward. The project, from the very outset, always had the same parameters: the
route, compensation to the band, job creation, business opportunities and time
limits. Indeed if judicial review were granted, it might well turn out that Mr.
Provost would agree that his concerns are groundless.
[42]
“There
is a time for everything…A time to be silent and a time to speak…” (Ecclesiastes).
Mr. Provost’s time has come and gone.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
applications for judicial review are dismissed, with costs.
2.
A
copy of this order, and accompanying reasons, shall be placed in court file
number T-646-09.
“Sean Harrington”
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