Date: 20070530
Docket:06-T-79
Citation:2007 FC 553
Ottawa, Ontario, May 30, 2007
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
HAROLD LEIGHTON on his own behalf
and
on behalf of THE METLAKATLA INDIAN BAND, and
GARRY REECE on his own behalf and
on behalf of the LAX KW’ALAAMS INDIAN
BAND
Applicants
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
As
represented by
the
ATTORNEY GENERAL OF CANADA and
the
MINISTER OF WESTERN ECONOMIC DIVERSIFICATION,
and
the MINISTER OF TRANSPORT, and
the
MINISTER OF THE ENVIRONMENT and
the
PRINCE RUPERT PORT AUTHORITY
Respondents
REASONS FOR ORDER AND ORDER
I.
Introduction
[1]
This is a motion in writing pursuant to the Rule
369 of the Federal Court Rules, 1998, (the Rules) in which the
applicants seek an extension of time under section 18.1 (2) of the Federal
Courts Act (the Act) to bring two judicial review applications (the motion).
One judicial review application would challenge a decision of Transport Canada dated October 27, 2005. The other
judicial review application would judicially review an environmental assessment
dated January 22, 2006.
[2]
This motion, filed on October 27, 2006, was
launched at the suggestion of Justice Von Finckenstein, as he then was, in his
reasons for order and order in dismissing on September 21, 2006, the judicial
review application of Harold Leighton et al. as applicants against Her Majesty
the Queen in Right of Canada, the Minister of Transport and the Attorney
General of Canada as respondents, 2006 FC 1129, Docket T-89-06.
[3]
Harold Leighton is the Chief Councillor of the
Metlakatla Indian Band (Metlakatla) who brings this motion on his own behalf
and as the elected representative of the Metlakatla.
[4]
Garry Reece is the Chief Councillor of the Lax
Kw’alaams Indian Band (Lax Kw’alaams) who brings this motion on his own behalf
and as the elected representative of the Lax Kw’alaams.
[5]
The Metlakatla and the Lax Kw’alaams Indian
Bands are referred to in this motion as the Coast Tsimshian whose traditional
territory is the coastal area of northwest British Columbia along and between
the Lower Skeena and Nass Rivers, an area known as Prince Rupert Harbour which
includes the Port of Prince Rupert managed by the Prince Rupert Port Authority
(the PRPA), a federal port authority.
[6] The
judicial review application before Justice Von Finckenstein was “in respect of
the pending decision of the Minister of Transport to authorize the
Fairview Terminal Conversion and the consequential duty upon the Crown to
consult with, and if appropriate accommodate, the members of the …Bands
regarding the potential adverse impacts … upon asserted … Aboriginal title and
rights.”
[7] Justice
Von Finckenstein determined “I have no choice but to dismiss this application”
because “this failure by the applicants to properly plead their case is fatal
…”
[8] He came to
this conclusion writing at paragraph 27 the following:
“The pending
decision upon which this application refers does not exist. The Minister of
Transport is not required to authorize the conversion. As the lead minister
for the project, he leads the consultation process. If the process is
successful there will be an offer of accommodation. The Coast Tsimshian may
accept it or may go to court to seek judicial review. However there is no
decision required for the Minister of Transport to authorize the conversion
process. At best he will decide that the offer of accommodation made by the
Crown is adequate. However, this application does not concern itself with
that decision, which yet has to be made, in any event.” [Emphasis mine]
[9] He then
said “the applicants could have focused on the October 27, 2005, decision of
Transport Canada, a decision of Transport Canada, on behalf of the Crown, the
Crown would only consult on the Water Component of the terminal conversion in
the notice of application. The applicants did not do so nor did they make a
motion amending their pleadings to seek judicial review of the said October 27,
2005 decision.” [Emphasis mine]
[10] He expressed
his invitation to the applicants to make motions to extend time presently
before me at paragraph 31 of his reasons:
“However, I
should note that there are other avenues of redress available to the
Applicants. First, they can bring a motion requesting an extension of the 30
day filing period and seek to review the decision of October 27, 2005, to only
consult on the water component. Second, they can seek judicial review of
environmental assessment done pursuant to the Canadian Environmental Assessment
Act and the accommodations offered in connection therewith. Third, they can
continue to pursue the judicial review application that has already been filed
with the Federal Court regarding the April 15, 2005, announcement that $30
million in funding would be provided by the Canadian Government to PRPA for the
conversion of the Fairview Terminal.” [Emphasis mine]
II.
Background
[11] At the
heart of this motion is the Fairview Terminal (Fairview) built in the 1970’s and its proposed conversion by the Prince
Rupert Port Authority (PRPA) from a break-bulk facility to a container
facility, (the Project). Fairview is built on Kaien Island located in the Port of Prince Rupert situated within Prince Rupert Harbour.
[12] The Phase
I would require a 0.72 hectare wharf extension of the current 21.5 hectares Fairview footprint. The wharf extension
involves dredging and driving piles. Phase II which is in the conceptual stage
would consist of a substantial expansion of the Port of
Prince Rupert.
[13] The Fairview footprint can be divided into
three parts:
1. That part built upon land surrendered by the Coast Tsimshian (the
land portion) of approximately 5 hectares;
2. That part built on landfill (the landfill portion) of approximately
17 hectares which is below the high water mark; and
3. The proposed extension of the wharf over water (the water component)
of approximately 0.72 of an hectare again, below the high water mark.
[14] The Phase
I conversion will also involve upgrading the existing terminal’s substructure
and electrical services, removal of a transit shed and bulk-loading facilities,
relocation and expansion of rail trackage and the installation of three
“super-post-paramax” containers cranes which would enable the facility to
handle the largest generation of container vessels currently in existence.
[15] The
judicial review application decided by Justice Von Finckenstein was filed by
the applicants on January 17, 2006. Five days later, on January 22,
2006, an environmental screening document (ESD) was released. The applicants
have not challenged its results directly by way of judicial review.
[16] Justice
Von Finckenstein had considerable documentation the applicants’ and
respondents’ records on what transpired by way of consultation between the
parties after the applicants were informed on August 30, 2004 on the
proposed Fairview conversion.
[17] He noted
in his reasons the applicants requested consultations on March 30, 2005
on Fairview’s conversion. He
identified exchanges in correspondence on establishing the mechanisms for
consultation. Annex 1 to his reasons for order and order contain a chronology
of consultation correspondence. In bold-type, he identified October 24,
2005, as being the first meeting with Transport Canada where considerable Aboriginal title information was provided by the
applicants.
[18] His
chronology also indicates two days later, a letter dated October 27, 2005
was sent by the Crown representative in the consultation to the applicants stating
that “it is Canada’s position that all rights, title and interest of the
Bands with respect to the land component were absolutely surrendered by the
Metlakatla Indian Band on August 17, 1906 and by the Lax Kw’alaams First
Nation under the Settlement Agreement dated March 31, 2003. Accordingly,
it is our view that the legal obligations of the Crown to consult do not extend
to asserted claims of title interest or rights as against the land component.”
His chronology also indicates in bold type that on December 6, 2005, a
second meeting was held with Transport Canada where the Crown’s representative
reiterated his view that Canada
considered all of the land components surrendered, a position he again asserted
on December 13, 2005. The judicial review decided by Justice Von
Finckenstein was filed a month later. [Emphasis mine]
[19] The
applicants’ record before the applications judge consisted of one volume with
the main affidavit sworn by Garry Reece, detailing the evidence of the
applicants’ Aboriginal rights and title relating to Fairview’s conversion and Kaien Island as well as the history of consultation correspondence with Canada. His affidavit and numerous
exhibits cover 481 pages. The respondents’ record consists of three volumes,
including the affidavits of Mr. Prudhomme, Lisa Walls, Steve Rhodes and Lorne
Keller, which cover 841 pages.
[20] In their
memorandum of fact and law opposing the judicial review decided by Justice Von
Finckenstein in paragraph 1 entitled Overview counsel for the respondents wrote
as follows:
“This judicial
review is misconceived. The applicants purport to seek review of the “pending”
decision of the Minister of Transport to authorize the conversion of the
Fairview Terminal operated by the Prince Rupert Port
Authority. There is no statutory jurisdiction conferred by federal legislation
that permits or requires the Minister of Transport to make such a decision. No
authorization is required for the conversion to proceed. The applicants, in
their memorandum of fact and law, do not address this issue at all…instead, the
applicants concentrate wholly on the issue of consultation, ignoring completely
the crux of this application, the so-called decision of the Minister of
Transport. Absent a finding by this Court that the Minister of Transport acted
beyond his jurisdiction regarding the authorization of the conversion, the
nature and quality of consultation is not relevant. The Attorney General of Canada says that since the
applicants did not point to any decision, actual or contemplated, now before
this Court for review, this application must be dismissed. Further, the
Attorney General of Canada says that the issue of jurisdiction to make the “pending” decision
should be determined by this Court before the applicants present their
arguments in total.” [Emphasis
mine]
[21] Prior to
the hearing, Justice Von Finckenstein permitted the applicants to file reply
submissions to the respondents on this point with the respondents entitled to
rebuttal.
III The
Federal Court Decision
[22] After
setting out the background facts, the applications judge described the
chronology mentioned above, indicating that correspondence was exchanged at
meetings held over the next 18 months after March 30, 2005. His
chronology ends on December 13, 2005. He indicates Transport Canada took the lead role in the
consultations with the applicants in August, 2005.
[23] Under the
heading “Duty to Consult”, he referred to the Supreme Court of Canada’s
decision in Haida Nation v. British Columbia (Minister of Forest)
[2004] 3 S.C.R. 511 which he said articulated “a process whereby the Crown has
a duty to consult, and accommodate if necessary, when the Crown has
knowledge of the potential existence of an Aboriginal right or title and
contemplates conduct that may adversely affect the Aboriginal rights or title”
a duty arising from the honour of the Crown and section 35 of the Canadian
Charter of Rights and Freedoms. [Emphasis mine]
[24] At
paragraph 11 of his reasons, he wrote:
“In this case,
the question arises as to whether the Crown properly assessed the claim of the
Coast Tsimshian when it started the process of negotiations”
quoting from
paragraph 37 of Haida, above. [Emphasis mine]
[25] He
described the standard of review and wrote the following at paragraph 13 of his
reasons:
“Here
there is no question as to the existence of a duty to consult, but rather a
question of the assessment of the facts to determine the strength and extent of
the Applicants’ claim. Based on the foregoing quote from Haida it
strikes me as obvious that the issue here, the Crown’s assessment of the
Coast Tsimshian’s claim, has to be reviewed on the basis of the standard of
reasonableness.” [Emphasis mine]
[26] Under a
heading called “Analysis of the Consultation Process”, he first stated at
paragraph 14 that “it was not contested that the Coasts Tsimshian’s provided a
full disclosure of their claims and alleged infringement of their claims by the
conversion of the terminal at the October 24, 2005, meeting. They presented
documents totalling 378 pages consisting of maps, documents and historical
studies.”
[27] At
paragraph 15 he stated the Crown’s position on consultation on the other hand
has changed over time as evidenced by the record. He described those changes
at paragraphs 16, 17, and 18 of his reasons summarizing those positions at
paragraph 19:
“The
Crown’s position, in short, changed from there was no duty to consult with the
Coast Tsimshian to the duty to consult encompassing both the Water Component
and most of the Landfill portion.”
[28] He then
found at paragraph 20 “there is no evidence that the Crown conducted a
proper preliminary assessment of the strength of the Coast Tsimshian case
once being presented on October 24, 2005, with the Coast Tsimshian claim.
Referring to Mr. Prudhomme’s letter of October 27, 2005, he said that letter
“demonstrates that the Crown’s assessment of the strength of the Coast
Tsimshian’s case was not based on any analysis of the evidence the Coast
Tsimshian presented at the October 24, 2005 meeting.”
[29] Beginning
at paragraph 21 he said the Crown’s position on the scope of the consultation
limited solely to the water component of the project to be skewed and
unreasonable. He wrote at paragraphs 21, 22, and 23 as follows:
“It is
impossible to characterize the Crown’s position that only the water component
was subject to consultation, as anything but unreasonable. Its own
submission concedes that the landfill portion was below the high water mark and
therefore could not have been considered part of a surrender or a settlement.
Accordingly, at a minimum, the
consultations should have entailed the Water Component and the Landfill
Portion. Or put differently rather being based on 0.72 hectares the
consultations should have been based on the combined total of 0.72 hectares
(the water component) and approximately 17 hectares (the landfill portion). By
failing to take this position and insisting on discussing solely the water
component the Crown began the entire consultation and accommodation process,
essentially a bargaining process, on a skewed basis.
Regardless of the consultations
held or the accommodations offered by the Crown, the Supreme Court in Haida,
supra, was clear that the focus of the analysis is on the process of
consultation and accommodation and not only on the outcome of the
consultations. I fail to see how the court can find the consultation and
the accommodation offered to be reasonable where the process started out on
such a misconception and minimization of the Coast Tsimshian’s claim. Since
the accommodation by definition is the product of a negotiation process,
reasonable assessment of the claim disclosed by the Coast Tsimshian is
required.” [Emphasis mine]
[30] He held
the applicants should ordinarily be granted relief expressing himself in the
following manner at paragraph 25 of his reasons.
“Given the finding,
the Applicants should ordinarily be granted the relief sought in b) and d) of
their Notice of Application, namely:
In the alternative, a declaration
that Canada has a duty to consult with, and if appropriate accommodate, the
Coast Tsimshian regarding the potential adverse impacts from the proposed
Fairview Terminal Conversion to Coast Tsimshian aboriginal title and rights
upon that portion of the existing Fairview Terminal footprint that lies below
the traditional high-water mark.
[…]
a declaration that Canada has a
duty to consult with, and if appropriate accommodate, the Coast Tsimshian
regarding the potential adverse impacts from the proposed Fairview Terminal
Conversion to Coast Tsimshian aboriginal title outside the existing Fairview
Terminal footprint.” [Emphasis mine]
but for the
reasons previously cited he could not do so , in his view, because of the
failure of the applicants to properly plead their case was fatal. [Emphasis
mine]
[31] It is
worthy to note as a matter of importance that neither the applicants nor the
respondents appealed to the Federal Court of Appeal Justice Von Finckenstein’s
decision. As such, it is a final decision. [Emphasis mine]
IV
Analysis and Conclusions
[32]
Subsection 18.1(2) of the Federal Courts Act requires that an
application for judicial review in respect of a decision or order of a federal
board, commission, or other tribunal must be made within thirty days after the
time the decision or order was first communicated “or within any further time
that a judge of the Federal Court may fix or allow before or after the
expiration of those thirty days”.
[33] To grant
or refuse a request for an extension of time to launch a judicial review
application is a matter of discretion which must be exercised on proper
principles. Those principles are well known with the Federal Court of Appeal’s
decision in Grewal v. Canada (Minister of Employment and
Immigration) [1985] 2 F.C. 263, being the seminal case.
[34] From Grewal,
above, and other decisions of the Federal Court of Appeal, the task at hand is
as follows:
• A number of
considerations or factors must be taken into account in the exercise of the
discretion;
• These factors
include: (1) a continuing intention to bring the application, (2) any prejudice
to the parties opposite, (3) a reasonable explanation for the delay, (4)
whether the application has merit i.e., discloses an arguable case (hereinafter
the four-prong test) and (5) all other relevant factors particular to the
case [emphasis mine], see James Richardson International Ltd. v. Canada
[2006] FCA 180 at paragraphs 33 to 35;
• As explained in
Jakutavicius v. Canada (Attorney General) [2004] FCA 289,
these factors or consideration are not rules that fetter the discretionary
power of the Court. Once the relevant consideration or factors are selected,
sufficient weight must be given to each of those factors or considerations;
• The weight
to be given to each of the factors or considerations will vary with the
circumstance of each case (Stanfield v. Canada, 2005 FCA 107);
• The underlying
consideration in an application to extend time is to ensure that justice is
done between the parties. The usual consideration in the standard
four-prong test of continuing intention, an arguable case, a reasonable
explanation for the delay and prejudice to another party is a means of
ensuring the fulfilment of the underlying consideration of ensuring that
justice is done between the parties. An extension of time can be granted even
if one of the standard criteria is not satisfied (Minister of Human
Resources Development v. Hogervrost, 2007 FCA 41; and
• The factors in
the test are not conjunctive (Grewal, above, at pages 11 and
13).
[35] Counsel
for the Crown and counsel for the PRPA strongly oppose the motion. They argue
the applicants have not met any one of the factors in the standard four-part
test. They identify no additional factors relevant to the facts of this
particular case. They do not suggest that any one of the standard four factors
should be given more weight than others. They say I cannot assess the merits
of the motion because the affidavit sworn is improper and no proposed judicial
review application was filed in their motion material. Their argument is
premised on a characterization the findings made by Justice Von Finckenstein
concerning the scope of consultations the parties have engaged in as simply
being obiter. They say the Minister of Transport’s letter of October
27, 2005, is not a decision. They argue they will be severely prejudiced if
the motion is granted, premised on the argument the applicants could delay or
completely stop the Project.
[36] Counsel
for the PRPA went further referring to the affidavit of Lorne Keller,
Vice-President, and Project Development. In that affidavit, Mr. Keller
referred to the consultations between the PRPA and the applicants regarding
their asserted Aboriginal rights and title in Prince
Rupert Harbour during the summer of 2004 – a year
before Her Majesty became directly involved.
[37] Mr.
Keller then deposed to consultations with the applicants and accommodation
beyond the 0.72 hectare wharf extension particularly in the context of Canadian
Environmental Assessment Act (CEAA) consultation process “in which
variously the PRPA and three Ministries of the Federal Crown have been involved
with them during different periods over the past two years.” He gave two
examples of accommodations. He also referred to the ESD detailing the
consultations with the applicants.
[38] Mr.
Keller also referred to joint offers of accommodation in early 2006, which he
states were not limited to the 0.72 hectare water extension.
(a)
Extension to challenge the October 27, 2005 decision
[39] As noted,
the applicants seek to extend the time to challenge two decisions: the October
27, 2005, decision to limit the scope of the consultations and the screening
decision made under the CEAA.
[40] For the
reasons expressed below I would grant the applicants an extension of time to
initiate a judicial review application to challenge the October 27, 2005,
decision made by the Minister of Transport. It is that decision which the
applications judge focussed on and specifically mentioned in his
decision.
[41] As an
overall comment, the respondents adopted a rigid formula approach to the
Court’s discretion on a motion for an extension of time. This approach has
been discarded by the Federal Court of Appeal which has indicated flexibility
was required in terms of relevant factors to each particular case, the weight
to be given to each factor varying on the circumstances of each case and the
balancing of all factors in order that a just result is arrived at between the
parties.
[42] The
findings of Justice Von Finckenstein on the scope of the consultation on the
evidence before him are not obiter. They were at the heart of his
consideration of the application before him which entirely focused on Canada’s duty to consult the Coast
Tsimshian in respect of the Project. At paragraph 25 he specifically held, “Given
the finding, the applicants should ordinarily be granted the relief sought in
paragraphs b and d of their notice of application. [Emphasis mine]
[43] However,
as noted, he could not grant this relief because of the manner the applicants
had framed their judicial review application in terms of “the pending decision
of the Minister of Transport to authorize the Fairview Terminal Conversion …”
He agreed with the reply submissions of the Crown, the salient portions of
which were reproduced in Annex II to his reasons.
[44] As noted
in paragraph 29 of his reasons, he referred to the October 27, 2005, letter
which he suggested be one of the subject-matters of this motion.
[45] Again, it
was after the judge stated in paragraph 30 “I have no choice but to dismiss
this application” he then wrote “there are other avenues of redress available
to the applicant.” One of those avenues he identified was to seek an extension
of time to challenge the October 27, 2005, decision of the Minister which, in
the case before him, he could have been considered if the notice of application
had been amended to encompass that
decision.
[46] In my
view, it is perfectly clear from Justice Von Finckenstein’s reasons, he found a
breach by the Crown of its duty to consult the applicants by unreasonably
limiting the scope of the consultations. It is also clear he would have granted
the declatory relief sought in paragraphs b and d of the notice of application
but could not do so because, in his view, of the way the applicants had
structured their application and they had not sought appropriate amendments to
focus on the correct decisions. It also flows clearly from his reasons, why he
made the suggestions to the applicants i.e., they had “other avenues of
redress.” Because of his finding, he wanted the applicants to obtain
appropriate relief and that is why he identified certain decisions made in the
past in the context of the consultation process to which the relief he intended
could be attached.
[47] I stress,
once again, that none of the parties appealed his decision to the Federal Court
of Appeal. His findings must stand because his decision is a final one for the
purposes of this motion.
[48] In my
view, Justice Von Finckenstein’s determination in the case before him is a
relevant and important factor particular to this case, one which should
be given considerable weight.
[49] The
jurisprudence is clear that considerable weight must be accorded on a motion to
extend time where the underlying judicial review application which is out of
time evidences merit and provides an indication that the decision-maker
challenged was in error. Such was the case in Grewal, above, where the
delay was over a year but where the applicant had a very strong case on the
merits. Such was also the case in Jakutavicius, above, where Justice
Rothstein, then a member of the Federal Court of Appeal, found that the
decision-maker “may well be in error.” Such was the case in a recent decision
dated February 20, 2007 by my colleague Justice Martineau, in Huard v. Procureur
Général du Canada, 2007 CF 195, where he authorized a judicial review which
had been out of time for several years taking into account the underlying
application for judicial review had considerable merit. Such is the case here
in respect of the October 27, 2005, decision.
[50] There are
additional factors particular to this case which affects the exercise of my
discretion and the weight to be given to any particular relevant factor. These
considerations are:
• The back-drop
to the motion is a Charter right guaranteed by section 35 and the duty
to consult about them which engages the honour of the Crown. The respondents
recognize these considerations;
• In Haida,
above, the Chief Justice had this to say about duty to consult and accommodate:
“This case is the
first of its kind to reach this Court. Our task is the modest one of
establishing a general framework for the duty to consult and accommodate, where
indicated, before Aboriginal title or rights claims have been decided. As this
framework is applied, courts, in the age-old tradition of the common law, will
be called on to fill in the details of the duty to consult and accommodate.”
[Emphasis mine]
• In Haida,
above, under the heading Administrative Review, the Chief Justice wrote at
paragraph 60:
“Where the
government's conduct is challenged on the basis of allegations that it failed
to discharge its duty to consult and accommodate pending claims resolution,
the matter may go to the courts for review. To date, the Province has
established no process for this purpose. The question of what standard of
review the court should apply in judging the adequacy of the government's
efforts cannot be answered in the absence of such a process. General principles
of administrative law, however, suggest the following.” [Emphasis mine]
• The duty to
consult is ongoing and the extent of consultation varies with the
circumstances, see Haida, above, paragraphs 41, and 43 to 46;
• The essence of
this motion is a search for an appropriate procedural vehicle through which the
applicants can obtain relief on what they claim and the applications judge
found was an unreasonable limit to the scope of consultation about the Fairview conversion. It is still an open
question how best to trigger review proceedings before the Court when issues
related to the duty to consult in the context of Aboriginal claims arise. This
debate is evident in the British Columbia Courts (see Huu-Ay-Ahi First
Nation v. British Columbia (Minister of Forests) [2005] 3 C.N.L.R. 74. At the Federal
Court level, judicial review may proceed without a decision or order (see
Krause v. Canada [1999] F.C.J.
No. 179 (FCA).
[51]
Technically speaking, the respondents are correct to say the applicants have
not made out an intention within 30-days and up until now to seek judicial
review of the Minister’s October 27, 2005, decision to cut down the scope of
consultations. In the particular circumstances of this case I give little
weight to the factor because the focus of this motion is on a procedural
vehicle. Clearly the respondents were aware the applicants were dissatisfied
about the stance the Crown took to the scope of the consultations which emerged
in October of 2005 and was confirmed in December of that year. That is why
they launched the proceedings which Justice Von Finckenstein decided.
[52] For the
same reason I accord little weight to the factor of having a reasonable
explanation for not seeking to launch before now a judicial review from the
October 27, 2005, decision. While a lack of understanding about appropriate
relief may, in some circumstances, not constitute a reasonable explanation for
the delay in launching a judicial review, the additional factors particular to
this case are such as to lead me to discount this factor.
[53] Prejudice
to the respondents is, of course, an important factor. The respondents assert
this is the case but that factor is premised on the assumption the applicants
want to delay or completely shut down the Project. The facts are against the
respondents.
[54] There is
no evidence before me Phase I of the Project is not proceeding to completion
and there is no evidence granting an extension of time to review the scope of
consultation would cause Phase I of the Project not to be completed on
schedule. Any discussion of Phase II is speculative.
[55] It would
take interim injunctive relief to cause the kind of prejudice the respondents
invoke. None has been sought by the applicants in Docket T-1890-05, which is
an application for judicial review launched by the applicants on October 25,
2005, and has been the subject-matter of a recent decision of Prothonotary
Tabib (See 2007 FC 550).
[56] Moreover,
the Chief Justice in Haida, above, down-played the utility of injunctive
relief when issues related to the duty to consult arise in Aboriginal cases
(see paragraphs 12 to 14).
[57]
Balancing all of the appropriate factors with the weight I have assigned to
them in the context of justice between the parties, I am persuaded time should
be extended to allow the applicants the opportunity to seek judicial review of
the Minister of Transport’s decision of October 27, 2005.
[58] I am
aware the respondents argue the letter of October 27, 2005 on behalf of the
Minister of Transport is not a decision. Justice Von Finckenstein held it was
a decision and, in any event, I am of the view the circumstances of Krause,
above, applies – no decision is required.
[59] For the
purposes of extending the time to challenge the October 27, 2005, decision, I
did not take into account the evidence on consultations contained in the Keller
affidavit. That evidence represents a collateral attack upon Justice Von
Finckenstein’s decision which is impermissible.
[60] In Grewal,
above, Chief Justice Thurlow at page 279, letter d to g attached a condition on
the grant of an extension of time. I am not prepared to impose it but would
commend it to the parties as a way to expedite the matter. In that context, the
parties may wish to fashion, by agreement, a process whereby they agree how
further consultations should take place. Such agreement is very much more
desirable than litigation, a point underlined in Haida, above.
[61] I would,
however, attach as a condition to the granting of this motion that immediately
after the judicial review is served and filed it be case-managed in conjunction
with docket T-1890-05 in order to avoid duplication.
[62] Let me be
clear as to the implications of this grant of an extension of time to challenge
the October 27, 2005, decision to limit the consultations to the 0.72 hectare,
the water component of the Fairview footprint.
[63] Justice
Von Finckenstein found the consultations should, at a minimum, have entailed
the water component and the landfill component rather than being based only on
the 0.72 of a hectare. This is why he determined the Crown’s approach on the
consultation and the accommodation process, which he characterized as a
bargaining process, to be skewed.
[64] The
evidence before Justice Von Finckenstein on the scope of the consultations
between the parties did not go beyond December 13, 2005.
[65] The grant
of this motion to extend time enables the parties to put before the Court
evidence on the scope of the consultations and accommodation after December 13,
2005, to date in order to determine whether the Crown’s duty to consult and, if
necessary, accommodate has been fulfilled.
[66] This is
where Mr. Keller’s evidence would be appropriate for consideration.
(b)
Extension of time to Challenge the EDS of January 22, 2006.
[67] The grant
of the first part of the applicants’ motion provides them with a procedural
vehicle to test whether the Crown has fulfilled its obligations in the
circumstances to appropriately consult with the applicants in respect of the Fairview conversion.
[68] It seems
to the Court unnecessary to authorize another procedural vehicle to challenge
the EDS in relation to how consultations in respect of the applicants’ asserted
Aboriginal rights, title and interest were carried out.
[69] The
consultations about Aboriginal interests in the CEAA process are an
integral part of the Crown’s obligations to consult with respect to the overall
Fairview conversion and should
not be severed from that process. In the circumstances I adjourn sine die
this part of the applicants’ motion for an extension of time.
ORDER
THIS COURT
ORDERS that the applicants’ motion to extend the
time within which to serve and file a judicial review application against the
October 27, 2005, decision rendered on behalf of the Minister of Transport,
limiting the scope of consultations in respect of the Fairview conversion is
granted. The applicants shall have leave to do so within 30 days from the date
of this Order. Costs to the applicants in any event of the cause.
“François Lemieux”
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