Date:
20080117
Docket: A-113-06
A-561-06
Citation:
2008 FCA 20
CORAM: NOËL J.A.
SHARLOW J.A.
RYER
J.A.
BETWEEN:
MINISTER OF ENVIRONMENT, MINISTER OF
FISHERIES AND OCEANS, MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
and MINISTER OF TRANSPORT
Appellants
and
DENE THA' FIRST NATION
Respondent
and
IMPERIAL OIL RESOURCES VENTURES LIMITED,
on behalf of the Proponents of the Mackenzie Gas Project, NATIONAL ENERGY
BOARD, and ROBERT HORNAL, GINA DOLPHUS, BARRY GREENLAND, PERCY HARDISTY,
ROWLAND HARRISON, TYSON PERTSCHY AND PETER USHER, all in their capacity as
panel members of a Joint Review Panel established pursuant to the Canadian
Environmental Assessment Act to conduct an environmental review of the
Mackenzie Gas Project
Respondents
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Heard at Edmonton,
Alberta, on January 16,
2008.
Judgment delivered from the Bench at Edmonton, Alberta, on January 17, 2008.
REASONS FOR
JUDGMENT OF THE COURT
Date:
20080117
Docket: A-113-06
A-561-06
Citation: 2008
FCA 20
CORAM: NOËL
J.A.
SHARLOW
J.A.
RYER J.A.
BETWEEN:
MINISTER OF ENVIRONMENT, MINISTER OF
FISHERIES AND OCEANS, MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
and MINISTER OF TRANSPORT
Appellants
and
DENE THA' FIRST NATION
Respondent
and
IMPERIAL OIL RESOURCES VENTURES LIMITED,
on behalf of the Proponents of the Mackenzie Gas Project, NATIONAL ENERGY
BOARD, and ROBERT HORNAL, GINA DOLPHUS, BARRY GREENLAND, PERCY HARDISTY,
ROWLAND HARRISON, TYSON PERTSCHY AND PETER USHER, all in their capacity as
panel members of a Joint Review Panel established pursuant to the Canadian
Environmental Assessment Act to conduct an environmental review of the
Mackenzie Gas Project
Respondents
and
ATTORNEY GENERAL OF ALBERTA
Intervener
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Edmonton, Alberta, on January 17, 2008)
[1]
On May 17,
2007, the Dene Tha’ First Nation applied for judicial review of certain
decisions of the appellants (the Ministers) relating to the design and creation
of the regulatory and environmental review process for the Mackenzie Gas
Pipeline. The basis of the application was the allegation that the Ministers
had failed to fulfil their obligation under section 35 of the Constitution
Act, 1982 to consult with the Dene Tha’ in relation to the creation of the process.
[2]
On March 9,
2006, Justice Phelan rendered a judgment with elaborate reasons dismissing a
motion by the Ministers to stay the Federal Court proceedings (2006 FC 307). On
November 10, 2006, he rendered a further judgment again with elaborate reasons granting
the application for judicial review (2006 FC 1354). The Ministers have appealed
both judgments. The respondent Imperial Oil Resources Ventures Limited supports
the appeal, as does the intervener, the Attorney General of Alberta.
[3]
The
parties have settled the dispute that led to the application for judicial
review, rendering these appeals moot. However, this Court ordered on October
10, 2007, that the appeals would be heard on their merits despite being moot.
[4]
Having
considered the submissions in support of the appeal, we find no error on the
part of Justice Phelan, in relation to either decision, that warrants the
intervention of this Court.
[5]
The first
appeal (A-113-06) is an appeal of the decision to dismiss the motion to stay
the proceedings. As that decision was discretionary, this Court will intervene
only if the decision was based on an error of law or if the discretion
was exercised erroneously (that is, if the judge did not place sufficient or
any weight on relevant considerations), or if he had regard to irrelevant
factors or failed to have regard to relevant factors (Elders
Grain Co. v. Ralph Misener (The) (C.A.), [2005] 3 F.C.R. 367, at
paragraph 13). Applying these tests, we find no basis for intervention in this
case.
[6]
The second appeal (A-561-06) relates to the decision of Justice
Phelan to allow the application for judicial review. He concluded that a duty
to consult arose at some point between 2002 (during the development of the
Cooperation Plan) and 2004 when the planning of the environmental and
regulatory process was substantially completed by the execution of the Joint
Review Panel Agreement. He also concluded that the Crown had failed to consult
with the Dene Tha’ during that period, with the result that concerns specific
to the Dene Tha’ in relation to the process were not considered.
[7]
A
number of submissions were made to the effect that the decision of Justice
Phelan to grant the application for judicial review was based on one or more
errors of law or fact. We do not consider it necessary to recount those
submissions in detail. It is enough to say that we have been unable to detect
any error of law, or any palpable and overriding error of fact.
[8]
In our view, this case does not establish a new principle
relating to the determination of when the duty to consult arises, or the
content of the duty to consult. We do not agree with the suggestion that this case imposes
on the Crown an obligation that is different or more onerous than is justified
by the jurisprudence, including Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Taku River Tlingit First Nation v. British
Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, and Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R
388.
[9]
This case turns entirely on its own facts. Having regard
to the evidence on the record, it was open to Justice Phelan to find as a fact
that, given the unique importance of the Mackenzie Gas Pipeline, and the
particular environmental and regulatory process under which the application for
approval of the Mackenzie Gas Pipeline would be considered by the Joint Review
Panel and the National Energy Board, the process itself had a potential impact
on the rights of the Dene Tha’. It was also open to him to find as a fact that,
at some point during the period from 2002 and 2004, it was sufficiently certain
that there would be an application for approval of the Mackenzie Gas Pipeline
that the obligation to consult was triggered. He was not required, as a matter
of law, to conclude that no consultation obligation arose until the formal
application for approval was filed. The test framed by the Supreme Court of
Canada in the cases cited above does not dictate such a rigid or inflexible
approach.
[10]
We do not
accept the submission of counsel for the Ministers that Justice Phelan, in
assessing whether there had been adequate consultation, applied a standard of
correctness rather than reasonableness. That argument is based essentially on
the proposition that Justice Phelan failed to appreciate the elements of the
regulatory scheme, or the relevant facts relating to what was intended or
expected to occur in the course of the proceedings before the Joint Review
Panel and the National Energy Board. We find nothing in the record to support
that argument. Once Justice Phelan found, as he was entitled to do, that the
obligation to consult arose in relation to the development of the environmental
and regulatory process, and that there had been no consultation at all in that
regard, he was bound to conclude that the Ministers had not fulfilled their
duty.
[11]
We should not be taken to agree with every statement made
by Justice Phelan in his reasons. For example, we do not agree with the
suggestion (at paragraphs 53 and 61 of his reasons) that adequate consultation
in relation to an asserted Aboriginal right cannot be achieved unless the
person or agency representing the Crown is empowered to determine the validity
of the right. Nor do we agree that this case is “on all fours” with Mikisew
Cree (paragraph 102 of his reasons), although the facts of that case are
similar to the facts of this case, in that in both instances the Crown failed
to respect the legitimate requests of the First Nation at the appropriate time.
Counsel for the Ministers argued that the reasons also contain a number of
examples of imprecise language. Any such errors are minor, and certainly are
not serious enough to warrant reversing the decision.
[12]
The
appeals are accordingly dismissed.
“Marc Noël”
“K. Sharlow”
“C.
Michael Ryer”
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