Date: 20091023
Docket: A-537-08,
A-541-08,
A-542-08, A-475-08
Citation: 2009 FCA 308
CORAM: NOËL J.A.
LAYDEN-STEVENSON J.A.
RYER J.A.
Docket A-537-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
ENBRIDGE PIPELINES INC., CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS and
NATIONAL ENERGY BOARD
Respondents
and
ATTORNEY GENERAL OF SASKATCHEWAN,
THE ATTORNEY GENERAL OF ALBERTA and
THE ATTORNEY GENERAL OF CANADA
Interveners
Docket A-541-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
ENBRIDGE SOUTHERN LIGHTS GP INC. on
behalf of
ENBRIDGE SOUTHERN LIGHTS LP and
ENBRIDGE PIPELINES INC.,
NATIONAL ENERGY BOARD, and CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS
Respondents
and
ATTORNEY GENERAL OF CANADA
Intervener
Docket A-542-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
TRANSCANADA KEYSTONE PIPELINE GP LTD.,
NATIONAL ENERGY BOARD, and CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS
Respondents
and
THE ATTORNEY GENERAL OF CANADA
Intervener
Docket A-475-08
BETWEEN
THE SWEETGRASS FIRST NATION, and
THE MOOSOMIN FIRST NATION
Appellants
and
THE NATIONAL ENERGY BOARD, ENBRIDGE
PIPELINES INC.,
ATTORNEY GENERAL OF CANADA, and
THE CANADIAN ASSOCIATION OF PETROLEUM
PRODUCERS
Respondents
and
THE ATTORNEY GENERAL OF ALBERTA and
THE ATTORNEY GENERAL FOR
SASKATCHEWAN
Interveners
Heard at Ottawa, Ontario, on October
13, 2009.
Judgment delivered at Ottawa,
Ontario, on October
23, 2009.
REASONS FOR JUDGMENT BY: RYER
J.A.
CONCURRED
IN BY: NOËL
J.A.
LAYDEN-STEVENSON
J.A.
Date: 20091023
Dockets: A-537-08, A-541-08,
A-542-08, A-475-08
Citation: 2009 FCA 308
CORAM: NOËL
J.A.
LAYDEN-STEVENSON
J.A.
RYER
J.A.
Docket A-537-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
ENBRIDGE PIPELINES INC., CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS and
NATIONAL ENERGY BOARD
Respondents
and
ATTORNEY GENERAL OF SASKATCHEWAN,
THE ATTORNEY GENERAL OF ALBERTA and
THE ATTORNEY GENERAL OF CANADA
Interveners
Docket A-541-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
ENBRIDGE SOUTHERN LIGHTS GP INC. on
behalf of
ENBRIDGE SOUTHERN LIGHTS LP and
ENBRIDGE PIPELINES INC.,
NATIONAL ENERGY BOARD, and CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS
Respondents
and
ATTORNEY GENERAL OF SASKATCHEWAN
Intervener
Docket A-542-08
BETWEEN:
STANDING BUFFALO DAKOTA FIRST NATION,
and CHIEF RODGER REDMAN, COUNCILLOR WAYNE
GOODWILL,
COUNCILLOR DION YUZICAPPI, COUNCILLOR
VERGIL BEAR,
COUNCILLOR HERMAN GOODPIPE, COUNCILLOR
STELLA ISNANA,
and COUNCILLOR CONRAD TAWIYAKA
as representatives of
THE MEMBERS OF STANDING BUFFALO DAKOTA
FIRST NATION
Appellants
and
TRANSCANADA KEYSTONE PIPELINE GP LTD.,
NATIONAL ENERGY BOARD, and CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS
Respondents
and
THE ATTORNEY GENERAL OF CANADA
Intervener
Docket A-475-08
BETWEEN
THE SWEETGRASS FIRST NATION , and
THE MOOSOMIN FIRST NATION
Appellants
and
THE NATIONAL ENERGY BOARD, ENBRIDGE
PIPELINES INC.,
ATTORNEY GENERAL OF CANADA, and
THE CANADIAN ASSOCIATION OF PETROLEUM
PRODUCERS
Respondents
and
THE ATTORNEY GENERAL OF ALBERTA and
THE ATTORNEY GENERAL FOR
SASKATCHEWAN
Interveners
REASONS FOR JUDGMENT
RYER J.A.
[1]
In the
four appeals that were before the Court, the appellants seek to set aside three
decisions of the National Energy Board (the "NEB") that granted applications for
approvals in respect of three western Canadian pipeline projects following
hearings in which those applications were considered.
[2]
The
appellants raise the novel question of whether, before making its decisions in
relation to those applications, the NEB was required to determine whether by
virtue of the decision in Haida Nation v. British Columbia (Minister of
Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Crown, which was not a
party to those applications or a participant in the hearings, was under a duty
to consult the appellants with respect to potential adverse impacts of the
proposed projects on the appellants and if it was, whether that duty had been
adequately discharged.
[3]
The four
appeals were heard together by order of this Court. These reasons dispose of
each of the appeals and will be filed as reasons for judgment in Court files A-537-08,
A-541-08, A-542-08 and A-475-08.
RELEVANT STATUTORY PROVISIONS
[4]
The
statutory provisions that are relevant to the appeals are subsections 21(1),
22(1) and section 52 of the National Energy Board Act, R.S.C. 1985, c.
N-7 (the “NEB Act”) and subsection 35(1) of the Constitution Act, 1982 (the
"Constitution"). These provisions are reproduced in the appendix to
these reasons.
BACKGROUND
[5]
The NEB held hearings with respect to
applications for approvals in respect of three proposed pipeline projects (the
"Keystone Project", the "Southern Lights Project" and the
"Alberta Clipper Project", collectively, the "Projects").
The Standing Buffalo First Nation ("SBFN"), a Dakota band,
participated as an intervener in the hearings with respect to all of the
Projects. The Sweetgrass First Nation and the Moosomin First Nation ("SFN/MFN")
participated in the hearing with respect to the Alberta Clipper Project through
Battleford Agency Tribal Chiefs Inc. (“BATC”), which intervened in that hearing
on their behalf.
[6]
In the
Keystone hearing, SBFN gave evidence that it had been in negotiations with Canada, through the auspices of the
Office of the Treaty Commissioner, from 1997 to 2006, with respect to asserted
claims in respect of unextinguished Aboriginal title to lands, self-government
rights and ochechea (its status as an ally of the Crown). According to
SBFN, the Crown broke off these negotiations in 2006 and for that reason, SBFN
decided to intervene in the Keystone hearing to advance its interests. To that
end, SBFN informed the Crown of its decision to intervene in the proceedings
and reiterated its desire to resume the negotiations that had broken off.
[7]
In the
Alberta Clipper hearing, the applicant introduced a without prejudice letter,
dated July 25, 2007, in which the Crown took the position that the Dakota First
Nations, including SBFN, “do not have Aboriginal rights in Canada”.
[8]
In the
Alberta Clipper hearing, BATC expressed concerns on behalf of SFN/MFN about
potentially adverse effects that the Alberta Clipper Project would have on
sacred sites and plant gathering for traditional and medicinal purposes. In
this Court, counsel for SFN/MFN raised the concern that the SFN/MFN have
interests in land that will be affected by the Alberta Clipper Project. More
particularly, SFN/MFN asserted that the possibility that their claims to land
under the Treaty Land Entitlement Process might be satisfied by lands affected
by this Project formed part of the basis of their right to Haida
consultation.
[9]
The NEB made three separate decisions (the
"Decisions") with respect to the Projects. In particular:
a.
in Hearing
Order OH-1-2007 (the "Keystone Decision"), dated September 20, 2007,
the NEB granted approvals that were requested by TransCanada Keystone Pipeline
GP ("Keystone") in relation to the Keystone Project, including a
Certificate of Public Convenience and Necessity (a "Section 52
Certificate") under section 52 of the NEB Act;
b.
in Hearing Order
OH-3-2007 (the "Southern Lights Decision"), dated February 19, 2008,
the NEB granted approvals that were requested by Enbridge Southern Lights GP on
behalf of Enbridge Southern Lights LP and Enbridge Pipelines Inc. (collectively
"Enbridge Southern Lights") in relation to the Southern Lights
Project, including a Section 52 Certificate; and
c.
in Hearing Order
OH-4-2007 (the "Alberta Clipper Decision"), dated February 22, 2008,
the NEB granted approvals that were requested by Enbridge Pipelines Inc.
("Enbridge") in relation to the Alberta Clipper Project, including a
Section 52 Certificate.
[10]
The issue
referred to at the beginning of these reasons was squarely raised in motions
that were made by SBFN in the hearings with respect to the Southern Lights and
Alberta Clipper Projects. The motion made in the Southern Lights hearing is
summarized at page 6 of the Southern Lights Decision as follows:
The Notice of
Motion … requested the following decision of the Board
(a)
a
decision that the Board has no jurisdiction to consider the Southern Lights
Application on its merits without first determining whether Standing Buffalo
has a credible claim within the meaning of the Supreme Court's decision in Haida
Nation…;
(b)
a
decision that the duty of fairness requires that the Crown be required to
attend and respond to Standing Buffalo's claim, and that, in absence of any
such response from the Crown, Standing Buffalo's claim should be accepted as
uncontradicted and the Board should then determine that it is without
jurisdiction to determine the substantive merits of the Southern Lights
applications.
[11]
This
motion also raises the collateral issues of the requirement for Crown participation
in the hearing process and the consequences in the event that the Crown does
not participate in that process.
[12]
The
NEB determined
that the motion should not be decided as a preliminary matter because evidence
in the hearing would provide a further factual basis that would be relevant to
the motion and that completing the hearing without first deciding the motion
would not prejudice the SBFN.
[13]
In
its reasons for the Southern Lights Decision, the NEB denied this
motion and held that its mandate was to consider the application before it in
accordance with the public interest. In doing so, the NEB stated that
Aboriginal concerns were taken into account because the applicant was required
to consult with affected Aboriginal groups and mitigative accommodations of
Aboriginal concerns could be ordered. The NEB stated that requirements that may
be imposed upon other governmental authorities with respect to a proposed
federal pipeline project are not relevant to the NEB decision
making process in respect of that project. In addition, the NEB stated that
recourse should be to the courts, and not the NEB, in relation to issues of
whether other governmental authorities have met their legal obligations with
respect to a project that also falls under NEB oversight.
The NEB further
stated that it had no jurisdiction to settle Aboriginal land claims. Finally,
the NEB concluded that because it had the jurisdiction to deal with the
applications before it, without having to adjudicate the existence of a
credible claim within the meaning of Haida, it was not obligated to
require the Crown to attend the hearing to participate in such an adjudication.
[14]
The
motion brought by SBFN in the Alberta Clipper hearing is essentially the same
as the motion that it brought in the Southern Lights hearing and was dealt with
by the NEB in a similar
fashion.
[15]
The
issue raised in the motions brought by SBFN in the Southern Lights and Alberta
Clipper hearings was not raised by way of a formal motion in the Keystone
hearing. As a consequence, the Keystone Decision does not deal with that issue
in the same way as it was dealt with in the Southern Lights and Alberta Clipper
Decisions. However, the issue was raised in an application for a review of the
Keystone Decision, in accordance with subsection 21(1) the NEB Act, that was
made by SBFN on October 12, 2007. Paragraph 9.c. of that application reads as
follows:
… the NEB
erred when, without having first satisfied itself that adequate Crown
consultation had taken place, it implicitly concluded that it had jurisdiction
to consider the application for the certificate of public convenience and
necessity on its merits;
[16]
By
correspondence (the "Keystone Review Decision"), dated February 13,
2008, the NEB denied
SBFN's request for a review of the Keystone Decision.
[17]
The
appellants obtained leave to appeal the Decisions as required by subsection
22(1) of the NEB Act.
ISSUES
[18]
The
issues in this appeal are as follows:
(a) before
considering the applications for Project approvals, was the NEB required to determine
(i) whether
the Crown had a duty to consult, and if appropriate, accommodate the appellants
in relation to the Projects; and
(ii) if
the Crown had such a duty, whether that duty had been discharged; and
(b) does
section 52 of the NEB Act violate subsection 35(1) of the Constitution?
ANALYSIS
The Haida Duty
[19]
The
duty to consult that is at issue in these appeals is the Crown’s duty to
consult as described in Haida. Paragraph 35 of the Supreme Court of
Canada’s decision in that case stipulates that:
… the duty arises when
the Crown has knowledge, real or constructive, of the potential existence of
the Aboriginal right or title and contemplates conduct that might adversely
affect it …
[20]
Guidance
with respect to how to determine whether the Crown is subject to a Haida
duty, and, if such a duty exists, how to determine the scope of that duty, is
provided at paragraph 37 of that decision, which reads as follows:
There is a distinction
between knowledge sufficient to trigger a duty to consult and, if appropriate,
accommodate, and the content or scope of the duty in a particular case.
Knowledge of a credible but unproven claim suffices to trigger a duty to
consult and accommodate. The content of the duty, however, varies with the
circumstances, as discussed more fully below. A dubious or peripheral claim may
attract a mere duty of notice, while a stronger claim may attract more
stringent duties. The law is capable of differentiating between tenuous claims,
claims possessing a strong prima facie case, and established claims.
Parties can assess these matters, and if they cannot agree, tribunals and
courts can assist. Difficulties associated with the absence of proof and
definition of claims are addressed by assigning appropriate content to the
duty, not by denying the existence of a duty.
[21]
The
final phase in the Haida analysis is whether the duty to consult, and if
appropriate accommodate, has been discharged by the Crown.
[22]
It
is evident that the existence, scope and fulfillment of a Haida duty are
matters that can be agreed upon by the Crown and the affected Aboriginal
groups. However, where agreement on any or all of these matters cannot be
reached, adjudication may be required. In addition to references to
adjudication in paragraph 37 of Haida, at paragraph 60 of that decision,
the Court states:
… 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.
The Jurisdictional Issue
[23]
In
the context of these appeals, the appellants assert that before the NEB could decide whether or
not to grant the requested Project approvals, it was required to determine
whether the Crown was subject to a Haida duty to consult the appellants
in respect of the Projects. If such a duty was found to exist, the appellants
assert that the NEB was then required to
determine the scope of that duty and whether the Crown discharged it. Thus, the
appellants assert that the NEB
was required to undertake the full Haida analysis before it could make
the Decisions.
Standard of Review
[24]
In
my view, this issue squarely raises a true question of the jurisdiction of the NEB, a question that is to
be reviewed on the standard of correctness (see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
2008 SCC 9, at para. 59).
NEB did not undertake the Haida analysis
[25]
Nowhere
in the Decisions did the NEB make any finding that
the Crown was or was not subject to a Haida duty. In other words, the NEB did not determine the
existence of a Haida duty. It follows, in my view, that submissions with
respect to the scope of such a duty, and whether or not the Crown has fulfilled
it, need not be considered in these appeals. If I were to conclude that the NEB erred in not
undertaking the initial step in the Haida analysis, I would remit the
entire Haida analysis to the NEB for its consideration.
[26]
I
would also add that because the NEB did not undertake the Haida analysis
prior to making the Decisions, in my view, it follows that the Decisions cannot
be taken as encompassing any conclusions with respect to whether the
consultations that were undertaken by the proponents of the Projects were, or
were not, capable of discharging, or sufficient to discharge, any Haida
consultation duty that the Crown may have in respect of the Projects.
The Paul and Kwikwetlem Decisions
[27]
Counsel
for SFM/MFN argued that the decisions in Paul v. British Columbia (Forest
Appeals Commission), [2003]
2 S.C.R. 585,
2003 SCC 55, and Kwikwetlem
First Nation v. British
Columbia
(Utilities Commission),
2009 BCCA 68, [2009] 9 W.W.R. 92, authoritatively determine this jurisdictional
question. I
disagree.
[28]
In Paul,
the B.C. Forest Appeals Commission
found that Mr. Paul, an Aboriginal, had contravened section 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, by cutting down four trees that he
intended to use to build a deck on his home. The question in the case was
whether the British Columbia legislature had validly conferred on that
Commission the power to decide questions relating to Aboriginal rights and
title in the course of adjudicating whether Mr. Paul had contravened section 96
of the Code, including the question of whether in cutting down the trees Mr.
Paul was engaged in the exercise of the Aboriginal rights.
[29]
The
Supreme Court of Canada answered these questions in the affirmative and at
paragraph 47 of its decision, Bastarache J. added an illuminating observation:
My conclusions mean that
the Commission has jurisdiction to continue hearing all aspects of the matter
of Mr. Paul's four seized logs. Unless he moves in the Supreme Court of British
Columbia for a declaration respecting his aboriginal rights, Mr. Paul must
present evidence of his ancestral right to the Commission. As yet he has merely
asserted his defence. If he is unsatisfied
with the Commission's determination of the relationship between his s. 35
rights and the prohibition against cutting trees in s. 96 of the Code, he can
move for judicial review in the Supreme Court of British Columbia. The standard
of review for the Commission's determinations concerning aboriginal law will be
correctness.
[30]
In
my respectful view, Paul provides no authoritative support for the
proposition that the NEB was required to
undertake the Haida analysis before considering the merits of the
Project approval applications. If anything, paragraph 47 of Paul appears
to me to indicate that the courts are the appropriate venue for the
adjudication of Aboriginal issues.
[31]
In Kwikwetlem
First Nation, the British Columbia Utilities Commission considered an
application for an approval of an electrical transmission project by the British
Columbia Transmission Corporation. In that case, the Commission accepted that
it was under a Haida duty and negotiations were undertaken by the
parties on that basis. The question before the Court was whether the Commission
could issue an approval without first having decided whether the duty to
consult had been discharged to that point in the proceedings. It is noteworthy
that all parties accepted that British Columbia Transmission Corporation was
the Crown or a Crown agent for the purposes of the Haida analysis and
that the consultations undertaken by it took place in furtherance of its Haida
duty. Thus, the question of whether or not the British Columbia Utilities
Commission was required to undertake the entire Haida analysis to
determine whether the applicant before it was under a duty to consult was not
before the Commission. The
existence of the Haida duty was not contested.
[32]
In
the appeals under consideration, the applications before the NEB were made by Keystone,
Enbridge Southern Lights and Enbridge, private sector entities that are not the
Crown or its agent. Accordingly, I am of the view that Kwikwetlem First
Nation does not support the proposition that the NEB is required to
undertake the Haida analysis before considering the merits of the
applications of Keystone, Enbridge Southern Lights and Enbridge that were
before it.
[33]
I
note as well that the applicant before the British Columbia Utilities
Commission in Carrier Sekani Tribal Council v. British Columbia (Utilities
Commission), 2009 BCCA 67, [2009] 4 W.W.R.
381, 89 B.C.L.R. (4th) 298, was accepted by the parties as being the Crown or
its agent. Accordingly, I am of the view that this case provides no support for
SFN/MFN's argument on this issue.
[34]
Finally, I
would add that the NEB itself is not under a Haida
duty and, indeed, the appellants made no argument that it was. The NEB is a
quasi-judicial body (see Quebec (Attorney General) v. Canada (National Energy
Board), [1994] 1 S.C.R. 159, at page 184,
and, in my view, when it functions as such, the NEB is not the Crown or its agent.
Failure to undertake Haida analysis
infringes subsection 35(1) of the Constitution
[35]
Subsection
35 of the Constitution reads as follows:
|
35(1) The existing
aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed.
|
35(1) Les
droits existants — ancestraux ou issus de traités — des peuples autochtones
du Canada sont reconnus et confirmés.
|
[36]
In
asserting that the NEB erred in failing to
undertake the Haida analysis before reaching its Decisions, the
appellants state that the NEB
must exercise its decision-making function in accordance with the dictates of
the Constitution, including subsection 35(1) thereof. I agree with that
statement, which is supported by the decision of the Supreme Court of Canada in
Quebec (Attorney General) v. Canada (National Energy Board), at page 185.
[37]
The
appellants then contend that while the NEB's mandated consultation by the Project
proponents may have addressed potential infringements of Aboriginal rights by
those proponents, the failure of the NEB to undertake the Haida analysis means
that potential infringements of those rights by the Crown would not be
addressed. Thus, the argument goes, by failing to undertake the Haida
analysis, the NEB could be sanctioning
potential infringements of Aboriginal rights by the Crown, thereby breaching
subsection 35(1) of the Constitution.
[38]
The appellants
further argue that in the context of an application for a Section 52
Certificate, the NEB must "have regard
to all considerations that appear to it to be relevant", as specifically
stated in section 52 of the NEB Act. And, according to the appellants, whether
the Crown has, and has satisfied, a Haida duty, are matters that are
relevant to, and therefore must be addressed by, the NEB. A failure to do so,
their argument continues, would result in breach by the NEB of its obligation to
make its decisions in accordance with the dictates of the Constitution.
[39]
For
several reasons, I cannot accede to these arguments.
[40]
First,
as noted above, the decision in Quebec (Attorney General) v. Canada (National Energy Board) establishes that in
exercising its decision-making function, the NEB must act within the dictates of the
Constitution, including subsection 35(1) thereof. In the circumstances of these
appeals, the NEB dealt with three
applications for Section 52 Certificates. Each of those applications is a discrete
process in which a specific applicant seeks approval in respect of an
identifiable Project. The process focuses on the applicant, on whom the NEB imposes broad
consultation obligations. The applicant must consult with Aboriginal groups,
determine their concerns and attempt to address them, failing which the NEB can impose
accommodative requirements. In my view, this process ensures that the applicant
for the Project approval has due regard for existing Aboriginal rights that are
recognized and affirmed in subsection 35(1) of the Constitution. And, in
ensuring that the applicant respects such Aboriginal rights, in my view, the NEB demonstrates that it is
exercising its decision-making function in accordance with the dictates of
subsection 35(1) of the Constitution.
[41]
Secondly,
the appellants were unable to point to any provision of the NEB Act or any
other legislation that prevents it from issuing a Section 52 Certificate
without first undertaking a Haida analysis or that empowers it to order
the Crown to undertake Haida consultations.
[42]
Thirdly,
the Province of Saskatchewan argued that the NEB lacks jurisdiction to
undertake a Haida analysis where the Crown that is alleged to have a Haida
duty is the Crown in right of a province. The appellants did not contest this
limitation on the ability of the NEB to conduct a Haida analysis in relation
to the Crown in right of a province.
[43]
Fourthly,
a determination that the NEB was not required to
determine whether the Crown was under, and had discharged, a Haida duty
before making the Decisions does not preclude the adjudication of those matters
by a court of competent jurisdiction. Indeed, the quotations from paragraphs 37
and 60 of Haida and paragraph 47 of Paul point towards recourse
to the courts in such circumstances.
[44]
I would
add that the ability of an Aboriginal group to have recourse to the courts to
adjudicate matters relating to the existence, scope and fulfillment of a Haida
duty in respect of the subject matter of an application for a Section 52
Certificate should not be taken as suggesting that the Aboriginal group should
decline to participate in the NEB process with respect to such an application. As
previously stated, the NEB process focuses on the duty
of the applicant for a Section 52 Certificate. That process provides a
practical and efficient framework within which the Aboriginal group can request
assurances with respect to the impact of the particular project on the matters
of concern to it. While the Aboriginal group is free to determine the course of
action it wishes to pursue, it would be unfortunate if the opportunity afforded
by the NEB process to have Aboriginal
concerns dealt with in a direct and non-abstract matter was not exploited.
THE CONSTITUTIONAL QUESTION
[45]
The
SFN/MFN argue that the NEB Act or portions thereof are invalid on the basis
that they violate subsection 35(1) of the Constitution. In R. v. Sparrow,
[1990] 1 S.C.R. 1075, the validity of a regulation that prescribed limits on
the length of fishing nets was impugned by an Aboriginal person on the basis
that the particular regulation was inconsistent with subsection 35(1) of the
Constitution. In that case, the Supreme Court of Canada held that the party
impugning a piece of legislation has the onus of establishing that the
legislation has the effect of interfering with an existing Aboriginal right. If
that onus has been satisfied, the onus then shifts to the Crown to establish
that the interference is justified.
[46]
In
the present circumstances, the assertions of SFN/MFN fall well short of what is
required of them to meet their burden of establishing that the NEB Act or any
portion of it has the effect of interfering with any Aboriginal or treaty
rights they may possess. The assertion that the entire NEB Act infringes an
existing Aboriginal or treaty right of the SFN/MFN is entirely unsubstantiated.
[47]
SFN/MFN
make reference to a single provision of the NEB Act, section 52, and argue that
it is invalid because it does not include a specific provision stating that, in
making decisions required of it under that legislation, the NEB must adhere to
the protection afforded to existing Aboriginal and treaty rights of Aboriginal
peoples of Canada. I am unable to accept this argument.
[48]
It
is clear from the decision of the Supreme Court of Canada in Quebec
(Attorney General) v. Canada (National Energy Board) that the NEB is required to conduct
its decision-making process in a manner that respects the provisions of
subsection 35(1) of the Constitution. In my view, the failure of the NEB Act to
specifically refer to this requirement in section 52, or elsewhere in the NEB
Act, is insufficient to invalidate that provision.
The A-542-08 Appeal
[49]
Keystone
argued that SBFN’s appeal should be limited to an appeal from the Keystone
Review Decision alone and not from the Keystone Decision itself. And, since
SBFN’s memorandum of fact and law says nothing about the Keystone Review
Decision, Keystone contends that SBFN’s appeal must be dismissed. In view of my
proposed disposition of the jurisdictional and constitutional issues, I do not
propose to deal with this issue.
DISPOSITION
[50]
For
the foregoing reasons, I would dismiss each of the appeals, with costs to the
respondent Enbridge Pipelines Inc. in Court files A-537-08 and A-475-08, the respondent
Enbridge Southern Lights GP Inc. in Court file A-541-08 and the respondent
TransCanada Keystone Pipeline GP Ltd. in A-542-08.
“C.
Michael Ryer”
“I agree.
Marc Noël J.A.”
“I agree
Carolyn
Layden-Stevenson J.A.”
APPENDIX
National Energy Board Act, R.S.C. 1985, c. N-7, subsections
21(1) and 22(1) and section 52
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21(1) Subject
to subsection (2), the Board may review, vary or rescind any decision or
order made by it or rehear any application before deciding it.
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21(1) Sous
réserve du paragraphe (2), l’Office peut réviser, annuler ou modifier ses
ordonnances ou décisions, ou procéder à une nouvelle audition avant de
statuer sur une demande.
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22. (1) An appeal
lies from a decision or order of the Board to the Federal Court of Appeal on
a question of law or of jurisdiction, after leave to appeal is obtained from
that Court.
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22.
(1) Il peut être interjeté
appel devant la Cour d’appel fédérale, avec l’autorisation de celle-ci, d’une
décision ou ordonnance de l’Office, sur une question de droit ou de
compétence.
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52.
The Board may, subject to the approval of the Governor in Council, issue a
certificate in respect of a pipeline if the Board is satisfied that the
pipeline is and will be required by the present and future public convenience
and necessity and, in considering an application for a certificate, the Board
shall have regard to all considerations that appear to it to be relevant, and
may have regard to the following:
(a)
the availability of oil, gas or any other commodity to the pipeline;
(b)
the existence of markets, actual or potential;
(c) the economic
feasibility of the pipeline;
(d)
the financial responsibility and financial structure of the applicant, the
methods of financing the pipeline and the extent to which Canadians will have
an opportunity of participating in the financing, engineering and
construction of the pipeline; and
(e)
any public interest that in the Board’s opinion may be affected by the
granting or the refusing of the application.
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52.
Sous réserve de l’agrément
du gouverneur en conseil, l’Office peut, s’il est convaincu de son caractère
d’utilité publique, tant pour le présent que pour le futur, délivrer un
certificat à l’égard d’un pipeline; ce faisant, il tient compte de tous les
facteurs qu’il estime pertinents, et notamment de ce qui suit :
a) l’approvisionnement
du pipeline en pétrole, gaz ou autre produit;
b)
l’existence de marchés, réels ou potentiels;
c) la
faisabilité économique du pipeline;
d) la
responsabilité et la structure financières du demandeur et les méthodes de
financement du pipeline ainsi que la mesure dans laquelle les Canadiens
auront la possibilité de participer au financement, à l’ingénierie ainsi qu’à
la construction du pipeline;
e) les
conséquences sur l’intérêt public que peut, à son avis, avoir sa décision.
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Constitution Act, 1982, subsection
35(1)
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35(1) The existing
aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed.
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35(1) Les
droits existants — ancestraux ou issus de traités — des peuples autochtones
du Canada sont reconnus et confirmés.
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