Docket: A-358-14
Citation:
2015 FCA 222
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CORAM:
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RYER J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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CHIPPEWAS OF
THE THAMES FIRST NATION
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Appellant
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and
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ENBRIDGE
PIPELINES INC.
THE NATIONAL
ENERGY BOARD
ATTORNEY
GENERAL OF CANADA
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Respondents
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REASONS
FOR JUDGMENT
RYER J.A.
[1]
This is an appeal by the Chippewas of the Thames
First Nation (the “Appellant”) from a decision of the National Energy Board
(the “Board”) approving an application by Enbridge Pipelines Inc. (“Enbridge”) for
the Line 9B Reversal and Line 9 Capacity Expansion Project (the “Project”). The
reasons for the Board’s decision were issued on March 6, 2014 and may be cited
as OH-002-2013.
[2]
The Appellant asks the Court to quash the Board’s
approval of the Project “… because the Board was
without jurisdiction to issue exemptions and authorizations to [Enbridge] prior
to the Crown fulfilling its duty to consult and accommodate the Appellant”.
[3]
For the reasons that follow, I would dismiss the
appeal.
I.
RELEVANT STATUTORY PROVISIONS
[4]
The statutory provisions that are relevant to
this appeal are subsections 21(1), 22(1), 52 and 58 of the National Energy
Board Act, R.S.C., 1985, c. N-7 (the “NEB Act”) and subsection 35(1)
of the Constitution Act, R.S.C. 1985, App. II, No. 44, Schedule B (the “Constitution
Act”).
II.
BACKGROUND
[5]
In 1976, Line 9 began transporting oil eastward
from Sarnia, Ontario to Montreal, Quebec. In 1999, the Board approved a
reversal of the flow of oil. In July of 2012, the Board approved the
re-reversal of the flow of oil in a segment of Line 9 from a location near
Sarnia to a location near Hamilton, Ontario (“North Westover”).
[6]
The application with respect to the Project was
made pursuant to section 58 of the NEB Act. In the application, Enbridge
requested approval for:
a)
a reversal of the direction of the flow of oil
between North Westover and Montreal;
b)
an increase in Line 9’s capacity from 240,000
barrels per day to 300,000 barrels per day; and
c)
the transportation of heavy oil.
[7]
The application stipulated that almost all of
the work to implement the Project would take place within the existing pipeline
right of way or upon property belonging to Enbridge.
[8]
The Board determined that a public hearing in
respect of the Project would be held and issued a Hearing Order to that effect.
The Hearing Order was served upon the representatives of the federal Crown (the
“Crown”) and the Crown in right of each of Ontario and Quebec. The Appellant
was granted intervener status and received funding from Enbridge in respect of
its participation in the hearing.
[9]
Enbridge engaged in discussions with the Appellant
and other Aboriginal groups that were within 50 kilometres of Line 9. The
Appellant acknowledged the consultation efforts by Enbridge but submitted that
these efforts did not meaningfully address their concerns.
[10]
On September 27, 2013, the Appellant and another
First Nation sent a letter (the “Request for Consultation Letter”) to several
ministers of the Crown, including the Minister of Natural Resources. The
signatories noted their concerns with respect to the effect of the Project upon
their Aboriginal and treaty rights and requested that the Crown immediately
initiate a consultation process. They also requested that the Crown inform the
Board that no consultation had taken place, and as a result, procedural steps
involving the Crown and the Appellant would need to be taken.
[11]
The signatories stipulated that Crown
consultation was required because the NEB Act does not provide the Board
with the power to engage in Haida duty consultations on behalf of the
Crown and to do so would be “wholly inappropriate”
given the Board’s role as “an independent,
quasi-judicial body”. In addition, the signatories stipulated that the
Board does not have the jurisdiction to:
•
protect other parts of our land bases to ensure
that there continue to be areas in our traditional territories where we are
able to exercise our rights;
•
address cumulative impacts caused by changes to
other Enbridge pipelines (such as Lines 5 and 6B) and facilities (Sarnia Tank
Terminal) that are required to enable Enbridge to ship 300,000 bpd of crude oil
on Line 9;
•
address cumulate impacts caused by changing the
type of crude oil that will be used as feedstock by petrochemical and chemical
refineries in Sarnia;
•
provide AFN and COTTFN with economic
accommodation for potential impacts to our rights;
•
conduct the public hearing and make a decision
under s. 58 in a way which ensures that, if the Project is approved,
accommodation provided to AFN and COTTFN is commensurate with potential adverse
impacts on our respective rights and interests; and
•
address historic and ongoing infringement of our
rights caused by the construction and operation of Line 9.
[12]
No reply to the Request for Consultation Letter
was made by the Crown prior to the conclusion of the hearing before the Board.
[13]
The hearing process began on October 8, 2013 in
Montreal and ended on October 18, 2013, in Toronto, Ontario. The Crown did not
participate in the hearing.
[14]
At the hearing, the Appellant described its
treaty and Aboriginal rights through written evidence, including a preliminary
Traditional Land Use study outlining the use of land adjacent to the Line 9 right
of way, and oral representations. The evidence contained expressions of the
Appellant’s deep spiritual connection to its traditional land and resources and
its concerns with respect to potential threats to its treaty and Aboriginal
rights that could arise from the approval of the Project. In addition, the
Appellant’s Chief’s affidavit stated that the Appellant was entitled to share
in the revenues that were being generated by the transportation of oil through
Line 9.
[15]
During final argument at the hearing, the
Appellant asserted that the Board was required to decline to grant the Project
approvals requested by Enbridge until Crown consultation had occurred.
[16]
By letter dated January 30, 2014 (the “Crown
Response Letter”), the Minister of Natural Resources replied to the Request for
Consultation Letter. The Minister stated that:
a) the Crown was committed to meeting its legal duty to consult
whenever it contemplates conduct that could adversely affect an established or
potential Aboriginal or treaty right;
b) in support of that commitment, the Government had introduced a
Responsible Resources Plan, which in part addressed Aboriginal consultation
issues in respect of major projects; and
c) the Government relies on Board processes to address potential impacts
to Aboriginal and treaty rights stemming from projects under the Board’s
mandate.
III.
THE BOARD’S DECISION
[17]
The Board acknowledged the potential threat that
the Project could pose to the Appellant’s Traditional Land Use but was
satisfied by Enbridge’s representations as to the safe operation of Line 9 and
contingency operations in case of a pipeline rupture. As a result, the Board
stated that any impacts on the Appellant’s rights would be minimal and
appropriately mitigated. The Board concluded that its approval of the Project
was in the public interest and consistent with the requirements of Parts III
and IV of the NEB Act. Nonetheless, the Board’s approval was subject to
a number of conditions that, according to the Board, would “… enhance [the] current and ongoing pipeline integrity,
safety and environmental protection measures to which Line 9 is already
subject.”
[18]
The Appellant was granted leave to appeal the
Board’s decision, as required under subsection 22(1) of the NEB Act, on
June 4, 2014.
IV.
ISSUES
[19]
The underlying issues in this appeal relate to
the duty (if any) of the Crown, as enunciated by the Supreme Court of Canada in
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004]
3 S.C.R. 511 [Haida Nation], to consult with and accommodate the
concerns of the Appellant relating to potential effects of the Project on their
Aboriginal and treaty rights (the “Haida duty”).
[20]
More particularly, there are two issues:
a) Whether the Board itself has been delegated the power to undertake
the fulfilment of the Haida duty on behalf of the Crown in relation to
the Project; and
b)
Whether the Board was required to determine, as
a condition of undertaking its mandate with respect to Enbridge’s application
for approval of the Project, if the Crown, which was not a party to the
application, was under a Haida duty and, if so, whether the Crown had
discharged that duty.
I will deal first with the latter of the two
issues.
V.
ANALYSIS
A.
Was the Board
required to determine, as a condition of undertaking its mandate with respect
to Enbridge’s application for approval of the Project, if the Crown, which was
not a party to the application, was under a Haida duty and, if so, whether the Crown had
discharged that duty?
Standard of Review
[21]
The issue of whether the Board was required to
determine, as a condition of undertaking its mandate with respect to Enbridge’s
application for approval of the Project, if the Crown, which was not a party to
the application, was under a Haida duty and, if so, whether it had discharged
that duty, is a question of law that is reviewable on the standard of
correctness (Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc.,
2009 FCA 308 at paragraphs 23-24, [2010] 4 F.C.R. 500 [Standing Buffalo];
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at
paragraphs 64-67, [2010] 2 S.C.R. 650 [Carrier Sekani]).
Standing Buffalo Governs
[22]
In paragraph 2 of Standing Buffalo, the
Court stated:
[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.
[23]
The Court answered this question in the negative
and held that the Board was not precluded from exercising its jurisdiction to
hear the applications that were before it. The Court did not decide that the
Board lacked the power to determine whether the Crown was under a Haida
duty and, if so, whether it met that duty (the “Haida Determinations”). Leave
to appeal to the Supreme Court in Standing Buffalo was denied (33480
(December 2, 2010)).
[24]
Subsequent to Standing Buffalo, there
have been no amendments to the NEB Act that negate the continuing
applicability of that decision.
Carrier Sekani
[25]
In late October of 2010, the Supreme Court of
Canada released its decision in Carrier Sekani. In that case, the Crown
in right of British Columbia (the “BC Crown”), acting through the British
Columbia Hydro and Power Authority (“BC Hydro”) sought approval from the
British Columbia Utilities Commission (“BCUC”), under the Utilities
Commission Act, R.S.B.C. 1996, c. 473, to purchase electrical power under a
contract with Rio Tinto Alcan Inc. (“RTA”).
[26]
BCUC allowed BC Hydro’s application. It
determined that the Haida duty had not been triggered because the First
Nation failed to establish that the proposed power purchase contract would
adversely affect any asserted Aboriginal rights. As such, a complete
consideration of the adequacy of consultations was not required.
[27]
On appeal, the British Columbia Court of Appeal
(the “BCCA”) found that a more fulsome inquiry with respect to the Haida
Determinations was required and remitted the matter to BCUC on that basis.
[28]
Before the Supreme Court of Canada, BC Hydro and
RTA argued that the BCCA took too wide a view of BCUC’s role in deciding
consultation issues and that BCUC had correctly concluded that the Haida
duty had not been triggered. For its part, the Carrier Sekani Tribal Council
supported the BCCA’s decision to remit the consultation issue back to BCUC for
more fulsome submissions on the consultation issue.
[29]
In allowing the appeal, the Supreme Court determined
that BCUC was correct in finding that it had the power to make the Haida
Determinations and that its conclusion, that the Haida duty had not been
triggered, was reasonable. In doing so, the Supreme Court stated that the role
of each particular tribunal in relation to the Haida Determinations
depends on the duties and powers that the legislature has conferred upon it.
[30]
Specifically, the Supreme Court stated, at
paragraph 69, as follows:
[69] It is common ground that the Utilities
Commission Act empowers the Commission to decide questions of law in the
course of determining whether the 2007 EPA is in the public interest. The
power to decide questions of law implies a power to decide constitutional
issues that are properly before it, absent a clear demonstration that the
legislature intended to exclude such jurisdiction from the tribunal’s power
(Conway, at para. 81; Paul v. British Columbia (Forest Appeals
Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 39). “[S]pecialized
tribunals with both the expertise and authority to decide questions of law are
in the best position to hear and decide constitutional questions related to
their statutory mandates”: Conway, at para. 6. [Emphasis added]
[31]
In addition, at paragraph 70, the Supreme Court
referred to paragraph 71(2)(e) of the Utilities Commission Act that
required BCUC to consider “any other factor that [it]
considers relevant to the public interest”. Thus, the Supreme Court
concluded that BCUC was empowered by the Utilities Commission Act to
make the Haida Determinations in respect of the BC Hydro’s application
for approval of the power purchase contract.
[32]
The Supreme Court also found that a tribunal
having the power to make the Haida Determinations may nonetheless lack
effective remedial powers. At paragraphs 61 and 63, the Supreme Court stated:
[61] A tribunal that has the power to
consider the adequacy of consultation, but does not itself have the power to
enter consultations, should provide whatever relief it considers appropriate in
the circumstances, in accordance with the remedial powers expressly or
impliedly conferred upon it by statute. The goal is to protect Aboriginal
rights and interests and to promote the reconciliation of interests called for
in Haida Nation.
[…]
[63] As the B.C. Court of Appeal rightly
found, the duty to consult with Aboriginal groups, triggered when government
decisions have the potential to adversely affect Aboriginal interests, is a
constitutional duty invoking the honour of the Crown. It must be met. If the
tribunal structure set up by the legislature is incapable of dealing with a
decision’s potential adverse impacts on Aboriginal interests, then the
Aboriginal peoples affected must seek appropriate remedies in the courts: Haida
Nation, at paragraph 51.
[33]
The decision in Carrier Sekani does not
refer to the decision in Standing Buffalo and contains no analysis of
the role of a tribunal in relation to Haida Determinations when the
Crown is not a participant in the proceeding before that tribunal. In Carrier
Sekani, the Crown was before BCUC, and BCUC made the initial Haida
Determination, namely that the Crown was not under a Haida duty in the
circumstances. In my view, Carrier Sekani does not go so far as to
establish that before undertaking its consideration of the matter at issue in
the proceedings before it, a tribunal must make the Haida Determinations
irrespective of whether the Crown is a participant in those proceedings.
Does Carrier Sekani Overrule Standing Buffalo?
[34]
The Appellant submitted that Standing Buffalo
has been overtaken by Carrier Sekani. I am not persuaded that this
is the case.
[35]
The circumstances in Carrier Sekani differed
significantly from those in Standing Buffalo.
[36]
In Carrier Sekani, the BC Crown, in the
form of BC Hydro, was a party to an application to BCUC, seeking approval to
enter into a power purchase agreement with RTA. Thus, there was a specific Crown
action – entering into and performing the electricity purchase contract – that
was subject to the approval of BCUC and that same action was alleged by the
First Nation to constitute Crown conduct that engaged BC Hydro’s duty to
consult. In those circumstances, the question of whether the BC Crown was under,
and, if so, had discharged, a Haida duty was squarely before BCUC. Indeed,
BCUC itself was of the view that it was empowered to make the requisite legal
and factual determinations. If BC Hydro had a Haida duty and it was not discharged,
then BCUC had the ability to prevent BC Hydro from taking the action that allegedly
had an adverse impact upon an asserted interest of the First Nation.
[37]
In Standing Buffalo, the Standing Buffalo
First Nation (“SBFN”) had been engaged in a consultation process with the federal
Crown with respect to asserted claims of Aboriginal title to lands and other
matters for a period of time extending from 1997 to 2006. The Crown ultimately
determined that it had no Haida duty and that it was no longer prepared
to continue the consultations. That prompted SBFN to intervene in the hearing
before the Board with respect to Enbridge’s application, pursuant to section 52
of the NEB Act, for permission to construct the Saskatchewan leg of the
Keystone Pipeline. SBFN requested the Board to compel the Crown to participate
in the hearing so that the Board could determine whether the Crown had met any
applicable Haida duty. If the Crown did not participate, SBFN asserted
that its evidence should be accepted by the Board and, as a result, the Board
should determine that it was without jurisdiction to consider the substantive
merits of Enbridge’s application before it.
[38]
In Carrier Sekani, the party seeking an
approval from BCUC was the Crown itself. In contrast, the Crown did not
participate in the approval proceedings before the Board in Standing Buffalo.
Instead, the party seeking approval from the Board was Enbridge, a private-sector
corporation that was unrelated to the Crown.
[39]
The non-participation of the Crown in the
hearing process in Standing Buffalo is significant.
[40]
While it is clear that the Board has the power
to decide questions of law, it is important to note that the Haida
Determinations also include factual findings. As stated by the Supreme Court in
Haida Nation, at paragraph 61:
[61] …The
existence or extent of the duty to consult or accommodate is a legal question
in the sense that it defines a legal duty. However, it is typically premised on
an assessment of the facts. …
Similarly the question of whether an
existing Haida duty has been met is largely factual.
[41]
Because the Crown participated in the
proceedings in Carrier Sekani, BCUC was in a position to make the factual
findings required by the Haida Determinations in the normal adversarial
context. If the Board had decided to make the Haida Determinations in Standing
Buffalo, it would have had to make the requisite factual findings outside
of that adversarial context.
[42]
Moreover, it is noteworthy that the implied
power of a tribunal to undertake the Haida Determinations, which is
stipulated in paragraph 69 of Carrier Sekani, refers to “constitutional issues that are properly before” the
tribunal. Because the Crown was not a party to the Project approval
proceedings, it is not clear that the Haida Determinations were “properly before” the Board in these proceedings.
[43]
The contrast between Carrier Sekani and Standing
Buffalo is also marked in terms of the remedial capacity of the respective
tribunals in those cases.
[44]
In Carrier Sekani, BCUC was in a position
to deny the approval requested by BC Hydro if it determined that BC Hydro had a
Haida duty but had not fulfilled it.
[45]
In Standing Buffalo, the Board had no
remedial power over the Crown. It was unable to deny a request from the Crown
because the Crown had not requested anything from it. If the Board had decided
to make the Haida Determinations (in the absence of evidence or argument
from the Crown) and had concluded that the Crown has not fulfilled an
applicable Haida duty, the Board’s only recourse – as asserted by SBFN –
would have been to decline to adjudicate upon Enbridge’s pipeline construction
application. Thus, the Board’s remedy would have been to effectively deny Enbridge’s
approval request because of a failure on the part of the Crown.
[46]
As stipulated by the Supreme Court in paragraph
61 of Carrier Sekani (reproduced above), a tribunal’s remedial powers,
which are directed towards the promotion of the reconciliation of interests,
are limited to those conferred upon it by statute. Holding the pipeline
approval application under consideration in Standing Buffalo in abeyance
as some sort of leverage over the Crown, so as to force it to become a
participant in the hearing before the Board, would not, in my view, have been
an appropriate way to promote the reconciliation of interests called for in Haida
Nation.
[47]
As is apparent from paragraph 63 of Carrier
Sekani (reproduced above), the Supreme Court acknowledged that tribunals
may lack practical and effective remedial powers to deal with failures on the
part of the Crown to comply with applicable Haida duties. In such
circumstances, the Supreme Court states that the appropriate remedies must be
sought in the courts.
[48]
This Court’s decision in Standing Buffalo
validated the fulfillment of the Board’s regulatory mandate with respect to
Enbridge’s application for pipeline construction approval. However, that
decision did not leave SBFN without any ability to have the Crown’s Haida
duty adjudicated. In that case, SBFN could have sought judicial review of the
Crown’s decision to terminate the consultations with SBFN in 2006.
[49]
In conclusion, it is my view that Carrier
Sekani has not overruled Standing Buffalo because the Supreme Court
did not address the issue of whether a tribunal is obligated to make the Haida
Determinations in a proceeding before it in which the Crown does not
participate as a party. Accordingly, in my view, the principle established in Standing
Buffalo continues to apply.
Is Standing Buffalo
Distinguishable?
[50]
The circumstances in Standing Buffalo are
substantially the same as those in this appeal. In both instances, the Board
was asked by Enbridge, a private-sector corporation, for an approval in respect
of a pipeline project. In both instances, the Crown had no direct involvement
with the proposed activities. In both instances, the First Nation stipulated
that the Crown was under, but had not fulfilled, a Haida duty. In both
instances, the First Nation asked the Board to hold the application before it
in abeyance unless and until the Board was satisfied that the Crown’s asserted Haida
duty has been met.
[51]
Notwithstanding these similarities, the Appellant
argues that Standing Buffalo is distinguishable on the basis that the
application before the Board in that case was brought under section 52 of the NEB
Act while the application in respect of the Project was brought under
section 58 of the NEB Act.
[52]
The Appellant asserts that because a section 52
approval is subject to a review and final approval by the Governor-in-Council, it
is unnecessary for the Board to undertake the Haida Determinations where
the Crown does not participate in the section 52 proceeding. This is apparently
so because the Governor-in-Council is in a position to overrule or suspend the
section 52 approval decision, should it decide to engage in a Haida duty
consultation process. This assertion is unpersuasive.
[53]
First, this alleged rationale for the decision
in Standing Buffalo appears nowhere in the reasons in that case.
Secondly, the Crown that allegedly has not yet engaged in Haida duty
consultations could well be the Crown in right of a province. In Standing
Buffalo, Saskatchewan intervened and argued that the Board lacked
jurisdiction to undertake a Haida duty analysis in respect of the Crown
in right of Saskatchewan (see also Fond du Lac Denesuline First Nation v.
Canada (Attorney General), 2010 FC 948 at paragraphs 230-231, 377 F.T.R. 50;
aff’d on narrower grounds 2012 FCA 73).
[54]
Thirdly, a review of the NEB Act,
including sections 52 and 58 of the NEB Act, reveals nothing that
addresses the question of whether the Board has the power to make Haida
Determinations. If that power exists it must be implicit in the Board’s ability
to decide questions of law. Equally, nothing in the NEB Act directs or
requires the Board to exercise such an implicit power in respect of an
application under either sections 52 or 58 of the NEB Act where the
Crown is not a party to such an application. Indeed, subsection 52(2) of the NEB
Act stipulates that the Board shall have regard to all considerations that
appear to it to be directly related to the pipeline and gives the Board a
further discretion to consider the factors that are listed in paragraphs 52(2)
(a) to (e) of the NEB Act. And, as this Court determined
in Forest Ethics Advocacy Association v. Canada (National Energy Board),
2014 FCA 245, 465 N.R. 152, at paragraph 69, in considering the section 58
application in respect of the Project, the Board must consider issues similar
to those stipulated in subsection 52(2) of the NEB Act and that in doing
so, the Board is empowered to determine the issues that it will consider. In
that case, the Court upheld the Board’s determination that it was not required
to consider affects associated with so-called “upstream”
and “downstream” activities that were alleged to
have been related to the Project.
[55]
Fourthly, it is the case that a section 52
approval will be subject to a further order by the Governor-in-Council but a
section 58 order will not. However, the apparent finality of a section 58
approval proceeding does nothing to assist the Board in making the Haida
Determination when the Crown is not a participant in that proceeding. Such
finality does not, in and of itself, establish that the constitutional issues
embedded in the Haida Determinations are “properly
before” (see Carrier Sekani at paragraph 69) the Board when the
Crown itself is not a participant before the Board. Moreover, I find it
difficult to understand how Parliament’s intention, when it enacted section 58
of the NEB Act to allow the Board to make final decisions in respect of
matters falling under that section, should be construed in light of the Crown’s
Haida duties when the date of enactment of that provision predates both
the enactment of the Constitution Act and the enunciation of the Crown’s
Haida duties in Haida Nation by over 45 years.
[56]
In my view, the essential factual context in Standing
Buffalo is indistinguishable from the factual context in this appeal. For
that reason, it is my view that the principle established in Standing
Buffalo ought to be followed in this appeal. In that regard, I note that
nowhere in any of the memoranda of law before this Court is there an argument
that this Court should disavow its decision in Standing Buffalo, in
accordance with the principles established in Miller v. Canada (Attorney
General), 2002 FCA 370, 220 D.L.R. (4th) 149 (see also ViiV Healthcare
ULC v. Teva Canada Ltd., 2015 FCA 93 at paragraph 18, [2015] F.C.J. no. 455
(QL)).
The non-participation of the Crown
[57]
The Crown decided not to participate in the
Project approval proceedings before the Board and no comprehensive explanation
was put forward for that decision. It is possible that the Crown was of the
view that Enbridge’s application entailed no Crown conduct that could engage
the Haida duty. If the Crown had appeared before the Board, this and
other issues could have been argued. But that did not occur.
[58]
In the final analysis, the Board determined that
it would entertain Enbridge’s section 58 application without making the Haida
Determinations. In doing so, in my view, it made no reviewable error.
Conclusion
[59]
For the foregoing reasons, I conclude that the
Board, in the absence of the Crown as a participant in the section 58 application
in respect of the Project, was not required, as a precondition to its
consideration of that application, to determine whether the Crown was under a Haida
duty, and if so, had discharged that duty, in respect of the Project.
B. Was the Board under a Haida Duty?
Standard of Review
[60]
The issue of whether the Board has the power to
undertake and discharge a Haida duty on behalf of the Crown in respect
of the Project is a question of law that is reviewable on the standard of
correctness (Carrier Sekani at paragraph 67).
The Board’s Constitutional Duty
[61]
It is clear that the Board is obligated to carry
out its mandate in a manner that respects the provisions of subsection 35(1) of
the Constitution Act.
[62]
The Board’s mandate includes ensuring that the
interests of Aboriginal groups in relation to the Project approval application
are considered by it and by the Project proponent. In this regard, the Board
required Enbridge to engage in extensive dialogue with the Appellant and other
First Nations. In doing so, the Board ensured that it adhered to its
constitutional obligations under subsection 35(1).
[63]
It is important to note that the Board’s duty to
ensure appropriate levels of consultation with Aboriginal groups is not the
same as the Crown’s Haida duty. That said, as a practical matter,
consultations with Aboriginal groups that arise in the Board’s section 58
application process may very well deal with, and hopefully remediate if
necessary, the same Aboriginal concerns that arise when the Crown engages in Haida
duty consultations. In other words, it should not matter whether a problem is
solved in the Board’s consultation process or the Crown’s Haida duty
consultation process.
Did the Crown delegate its Haida duty to the Board?
[64]
As informed by the Supreme Court in Haida
Nation, and more recently in Carrier Sekani, the Crown’s Haida
duty can be delegated to a tribunal by appropriate legislation.
[65]
None of the parties to this appeal argued that
the NEB Act contained any provisions that gave rise to a delegation of
the Crown’s Haida duty to the Board, and I have been unable to discern
any provision of that legislation that can be interpreted to produce such a
delegation.
[66]
While it is within the power of Parliament to require
the Board to discharge the Crown’s Haida duty, mandating the Board to
perform such additional duties would require it to function outside its core areas
of technical expertise. Moreover, it seems to me that requiring the Board to
consult with First Nations on behalf of the Crown would make it very difficult,
if not impossible, for the Board to then adjudicate – in its capacity as a
quasi-judicial tribunal and a court of record – upon the issue of the adequacy
of those consultations. Perhaps these observations explain why Parliament has
not taken legislative steps to expand the jurisdiction of the Board by adding
such additional duties.
The Crown Response Letter
[67]
In the present circumstances, the Crown did not
participate as a party to the application for Project approval. However, in the
Crown Response Letter, the Minister of Natural Resources stated as follows:
In your letter, you reference the importance
of Crown consultation with Aboriginal groups under section 35 of the Constitution
Act, 1982. I can assure you that the Government of Canada is committed to meeting
its legal duty to consult whenever it contemplates conduct that could adversely
affect an established or potential Aboriginal or treaty right. Where a duty to
consult exists, the federal Crown will meet its consultation obligations in an
effective and meaningful manner.
Later in that
letter, the Minister stated that:
The National Energy Board’s (NEB) regulatory
review process is where the Government’s jurisdiction on a pipeline project is
addressed. The Government relies on the NEB processes to address potential
impacts to Aboriginal and treaty rights stemming from projects under its
mandate. The NEB provides an open, comprehensive and participatory venue for
all affected parties to express their project-related concerns and interests.
[68]
I do not accept that this latter passage constitutes
an effective delegation to the Board of the Crown’s responsibility for the
performance of any portion of its Haida duty, if such a duty arose in
relation to the Project. Carrier Sekani informs that the question of whether
a tribunal has been given the power to carry out the Crown’s Haida
duties is to be determined from a review of the legislation that creates the tribunal.
This implies that an effective delegation by the Crown of its Haida
duties requires legislation to that effect. I leave open the question of
whether some formal type of disposition other than legislation could be
employed by the Crown to produce an effective delegation of its Haida
duties. Suffice it to say that, in my view, the Crown Response Letter is
insufficient to produce such a delegation, especially so when it is recalled
that this letter was not sent until after the hearing before the Board ended.
[69]
In my view, the existence of the Crown’s Haida
duty, if any, and the fulfillment of that duty, should it be found to exist, are
issues that should not be taken to have been determined by the decision of the Board.
It follows that the existence and fulfillment of any Haida duty on the
part of the Crown in respect of the Project are matters in respect of which
there has been no judicial pronouncement. For greater certainty, it is my view
that the question of whether Parliament’s enactment of the NEB Act, over
20 years before the enactment of the Constitution Act and over 40 years before
the decision in Haida Nation, could be said to constitute Crown
conduct that is sufficient to trigger the Haida duty is not a matter
that was decided by the Board. If the enactment of the NEB Act
constitutes the impugned Crown conduct and that conduct occurred over 60 years
before the Project application, one is presented with the logical impossibility
that the Haida consultations in respect of the Project were required to
have taken place prior to the enactment of that legislation.
[70]
In the same vein, one would wonder whether it can
realistically be suggested that in enacting of the NEB Act, ‒ over
20 years before the enactment of the Constitution Act and over 40 years
before the Haida duty to consult was enunciated
by the Supreme Court ‒ the federal government was attempting “to avoid its duty to consult” (see paragraph 62 of Carrier
Sekani).
[71]
In contrast to the enactment of the NEB Act
in the 1950’s the Province of Alberta recently enacted the Responsible
Energy Development Act, S.A. 2012, c. R – 17.3. Section 21 of that
legislation specifically states that the Alberta Energy Regulator has no
authority to make the Haida Determinations, seemingly indicating an
intention on the part of that legislative body that such determinations must be
made by the courts.
[72]
At the hearing of this appeal, the Appellant
acknowledged that the Crown Response Letter could have been regarded as a
refusal by the Crown to engage in consultations and that an application for
judicial review could have been brought with respect to that refusal.
[73]
Once before a court, the Haida
Determinations could be made in the context of the evidence and arguments
presented by the parties and an appropriate remedy sought. The panoply of
potential available judicial remedies was described by the Supreme Court at
paragraph 37 of Carrier Sekani, as follows:
[37] The remedy for a breach of the duty to
consult also varies with the situation. The Crown’s failure to consult can lead
to a number of remedies ranging from injunctive relief against the threatening
activity altogether, to damages, to an order to carry out consultation prior to
proceeding further with the proposed government conduct: Haida Nation,
at paras. 13-14.
[74]
The scope of the remedial powers of a court or
judicial review would also extend to declaratory relief such as that which was
proposed by the Yukon Court of Appeal in Ross River Dena Council v.
Government of Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100. In that case, the
Court recognized an acknowledgment from Crown counsel that the legislature of
the Yukon might wish to make legislative amendments to address the consultation
issues under consideration and, accordingly, it suspended the declarations that
it was otherwise prepared to make. Such flexible relief can generally be
provided by the Courts in judicial review proceedings.
[75]
Indeed in the excerpt from the Request for
Consultation Letter (reproduced in paragraph 11 above), the Appellant itself
acknowledged a number of limitations on the jurisdiction of the Board to
address all of their concerns about the impact of the project on them. However,
it is not obvious to me that the consequence of the absence of provisions in
the NEB Act (enacted over 50 years ago) that would enable the Board to
meaningfully remediate any established breach by the Crown of its Haida
duty ought to be that Enbridge’s Project approval application must be held up
indefinitely.
[76]
An application for judicial review in relation
to the existence and fulfillment of a Haida duty was heard by the
Federal Court in Brokenhead Ojibway Nation v. Canada (Attorney General),
2009 FC 484, 345 F.T.R. 119 [Brokenhead].
[77]
In that regard, the holding of Justice Barnes,
at paragraph 37 of Brokenhead, is worthy of note:
[37] The Treaty One First Nations maintain
that there must always be an overarching consultation regardless of the
validity of the mitigation measures that emerge from a relevant regulatory
review. This duty is said to exist notwithstanding the fact that Aboriginal
communities have been given an unfettered opportunity to be heard. This
assertion seems to me to represent an impoverished view of the consultation
obligation because it would involve a repetitive and essentially pointless
exercise. Except to the extent that Aboriginal concerns cannot be dealt with,
the appropriate place to deal with project-related matters is before the [Board]
and not in a collateral discussion with either the [Governor-in-Council] or
some arguably relevant Ministry.
[78]
In other words, achieving practical solutions to
project-related problems by recourse to the mainstream regulatory jurisdiction
of the Board is a worthy objective that should be pursued.
Conclusion
[79]
For the foregoing reasons, I conclude that there
has been no delegation by the Crown to the Board, under the NEB Act or
otherwise, of the power to undertake the fulfillment of any applicable Haida
duty of the Crown in relation to the Project.
VI.
DISPOSITION
[80]
For the foregoing reasons, I would dismiss the
appeal with costs to Enbridge. As neither the Crown nor the Board asked for
costs, none will be awarded in their favour.
“C. Michael Ryer”
“I agree
Wyman W. Webb
J.A.”
RENNIE J.A. (Dissenting Reasons)
I.
Overview
[81]
A point of divergence arises between my
colleagues and I with respect to the effect of Rio Tinto Alcan Inc. v.
Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650, 2010 SCC 43 on the
responsibility of the Board to assess the adequacy of the Haida Nation v.
British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73
consultation. My colleagues have found that in the absence of the Crown as a
party to the proceedings before the Board, it is not required to undertake the Haida
analysis as a precondition to the exercise of its regulatory oversight
jurisdiction. This result is predicated on the previous decision of this Court
in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009
FCA 308.
[82]
In my view, the foundation on which Standing
Buffalo was predicated has been altered by Carrier Sekani, such that
it no longer ought to be followed. At a minimum, the factual and legal contexts
in this appeal are markedly different from those in Standing Buffalo so
as to require re-consideration of that decision. Insofar as this appeal raises
the question of the role of a tribunal in respect of the duty to consult in
circumstances where the Crown is not a party to the proceedings and the
tribunal is the final decision maker, we are in uncharted waters.
II.
The factual
context
[83]
On April 8, 1975, the Government of Canada
entered into an agreement with Interprovincial Pipe Line Inc. (IPL) to
construct a pipeline from Sarnia to Montréal (the Montréal Extension) in order
to transport crude oil from western sources to eastern refineries. The Montréal
Extension, now known as Line 9, was opened on June 4, 1976; Line 9 was built
without the Crown having consulted with the Chippewas of the Thames First
Nation (the Chippewa).
[84]
IPL reached an agreement with the Government of
Canada on June 4, 1996, whereby IPL would continue to own and operate Line 9,
and Canada was released from its rights and obligations under previous
agreements.
[85]
On November 29, 2012, Enbridge Pipelines Inc.
(Enbridge), as the current owner and operator of Line 9, filed its application
to the Board seeking approval to reverse the direction of flow for the 639
kilometer segment of Line 9 from North Westover, Ontario to Montréal (Line 9B),
Québec, and to increase the annual capacity of Line 9 from the current 240,000
barrels of diluted bitumen per day to 300,000 barrels of heavy crude per day.
[86]
Line 9 is located in the traditional territory
of the Chippewa and crosses the Thames River, from which the Chippewa and their
ancestors have harvested resources. The Chippewa have Aboriginal and treaty
rights in the Thames watershed, and assert an undetermined claim of title over
the bed of the Thames River and its resources.
[87]
On September 27, 2013, in advance of the Board’s
public hearings in regards to Enbridge’s application, Chief Joe Miskokomon of
the Chippewa and Chief Christopher Plain of the Aamjiwnaang First Nation (AFN)
sent a letter to the Prime Minister, the Minister of Aboriginal Affairs and
Northern Development Canada, and the Minister of Natural Resources. The letter
listed concerns relating to a breach of their Aboriginal and treaty rights, and
specifically raised the issue of the Crown’s failure to consult the respective
First Nations about the proposed project:
Despite being clearly subject to this
constitutional duty, the federal Crown has failed to consult us about the
Project.
Unless you take the actions requested of you
in this letter, there will be no opportunity in the future for the Crown to
consult with AFN and [the Chippewa] about the Project. […] The [Board] has the
authority under s. 58 of the [Act] to make orders granting the
exemptions without consulting you or the Governor-in-Council, meaning that
there will be no further opportunities in the current regulatory approvals
process for the Project for the federal Crown to consult with AFN and [the
Chippewa].
[88]
The Chippewa fully participated in the hearings
before the Board and received generous funding in support. The Board’s hearing
process closed on October 18, 2013. It was not until January 30, 2014 that the
Minister of Natural Resources (the Minister) replied to the Chiefs’ letter. The
Minister wrote:
I can assure you that the Government of
Canada is committed to meeting its legal duty to consult whenever it contemplates
conduct that could adversely affect an established or potential Aboriginal or
treaty right. Where a duty to consult exists, the federal Crown will meet its
consultation obligations in an effective and meaningful manner.
[…]
The National Energy Board’s (NEB) regulatory
review process is where the Government’s jurisdiction on a pipeline project is
addressed. The Government relies on the NEB processes to address potential
impacts to Aboriginal and treaty rights stemming from projects under its
mandate.
[89]
Before the Board, the appellant repeated its
request that the Minister attend the hearings so as to engage in consultations.
The requests were not answered. Unlike Standing Buffalo where there had
been many years of unproductive discussions between the First Nation and the
Crown, here there have been none.
[90]
It is important, in my view, not to conflate the
substantive legal questions which underlie this appeal with the degree to which
aboriginal title and treaty interests may be affected by Line 9. In order for
the duty to consult to be engaged, the action must have an appreciable, adverse
effect on the ability to exercise aboriginal rights; Carrier Sekani,
para. 46. Here, the effects may in fact, be minimal. The Board found as much.
Enbridge’s section 58 application is to reverse the flow of the pipeline to its
original direction and to change the content and volume of the line. But that
is not the point. What is in issue is the question of the duty to consult where
a tribunal is the final decision maker.
III.
The legislative
context
[91]
The appeal in Standing Buffalo arose from
three decisions of the Board that granted applications for approvals in respect
of three pipeline projects pursuant to section 52 of the NEB Act. A
company is not permitted to operate a pipeline unless the Board has issued a
certificate under section 52 of the NEB Act.
[92]
Decisions made pursuant to section 52 are not
final. Rather, section 52 approval is a stop en route to the Governor in
Council, the ultimate decision maker. Section 54 of the NEB Act allows
the Governor in Council to either direct the Board to issue a certificate or to
dismiss the application for a certificate. Thus, in Standing Buffalo,
the role of the Board as a final decision maker with respect to the duty to
consult was not engaged. A Crown decision or Crown action, in the form of the
Governor in Council decision pursuant to section 54 awaited, clearly triggering
the duty to consult.
[93]
This appeal, however, arises from a decision of
the Board to approve an application by the respondent under section 58 of the NEB
Act. Section 58 enables the Board to exempt a proposed expansion or
extension to an existing pipeline from the requirement of obtaining a new
certificate. Additions or modifications to existing physical facilities qualify
for a section 58 exemption where they involve 40 kilometers or less of existing
pipeline.
[94]
Importantly, subject to appeal to this Court
with leave, the decision of the Board is final. The Minister has no power to
direct the Board to revise or amend its decision. This is apparent on the face
of the legislation, and was confirmed by counsel at the hearing of this appeal.
[95]
The legislative framework which underlies this
appeal is, therefore, markedly different than that of Standing Buffalo.
In Standing Buffalo, final decision making powers remained with the
Governor in Council, and therefore there was no question of Crown action or
conduct. Here, in a section 58 proceeding, the Board is the ultimate decision
maker.
IV.
Tribunals
and the duty to consult
A.
The duty to consult
[96]
In order to situate the issue in this appeal a
brief re-capitulation of the role of tribunals in relation to the duty to
consult is in order.
[97]
The question was first considered in 1994 by the
Supreme Court of Canada in Québec (Attorney General) v. Canada (National
Energy Board), [1994] 1 S.C.R. 159. In that case, the affected First Nation
relied on the duty to consult as a basis for arguing that the NEB was subject
to a heightened level of procedural fairness. Justice Iacobucci, delivering the
judgment of the Court, rejected this argument and held that the duty to consult
did not attach to quasi-judicial tribunals such as the NEB, as the duty to
consult was based on the fiduciary duties owed to Aboriginal peoples as part of
the honour of the Crown. Therefore, an imposition of such a duty on an
independent tribunal would be inconsistent with the requirement of neutrality
towards the parties to proceedings.
[98]
A decade later, in 2004, the Supreme Court of
Canada re-characterized the nature of the duty to consult. In Haida, the
Court held that the duty arose from the honour of the Crown, and was not
subsumed within the various fiduciary obligations owed by the Crown. It was,
rather, an independent element of the honour of the Crown: Haida at
paras. 18-20. This conclusion, and other indicators within the judgment, led
academics to opine that the “particular theory on which
the Court had based its rejection of the First Nation’s argument in the 1994
National Energy Board case no longer held.” That is, the concept of independence
“was no longer an impediment to the imposition of the
duty to consult on judicial and quasi-judicial tribunals” (see David
Mullan, The Supreme Court and the Duty to Consult Aboriginal Peoples: A
Lifting of the Fog? (2011) 24 CJALP 233 at 251-252).
[99]
In 2009 this Court, in Standing Buffalo,
relied on the 1994 National Energy Board case for the finding that as a “quasi-judicial body”, the NEB was not itself under a Haida
duty. The Court also held that the NEB had no statutory obligation to
analyze and determine whether the Crown’s duty to consult had been triggered
and discharged in respect of project applications: Standing Buffalo at
paras. 34 and 39.
B.
Carrier Sekani
[100]
The ultimate legal responsibility for
consultation and accommodation will always remain with the Crown. However,
procedural aspects of the duty to consult may be delegated: Haida at
para. 53. Thus, in Carrier Sekani, the Court held that whether a
tribunal has the jurisdiction to consider the adequacy of consultation, or to
carry out consultation itself, depends on the mandate conferred by the
legislation that establishes the tribunal. On this basis alone, Carrier
Sekani mandates re-visiting the conclusion reached in Standing Buffalo.
[101]
The Court saw a clear demarcation between two
duties – the jurisdiction to inquire as to the existence of a duty to consult
and whether the consultations between the Crown and the respective First Nation
were adequate, and the separate ability of the tribunal to conduct the
consultations itself.
[102]
The former can be implied from the ability to
decide questions of law. That is, in determining whether a tribunal has the
power to make a determination regarding adequacy of consultation, the Court in Carrier
Sekani held that “[t]he power to decide questions
of law implies a power to decide constitutional issues that are properly before
it, absent a clear demonstration that the legislature intended to exclude such
jurisdiction from the tribunal’s power”: Carrier Sekani at para.
69. This holding is inconsistent with Standing Buffalo which held that a
tribunal must be explicitly conferred the power to undertake a Haida
analysis.
[103]
In sum, the language of Carrier Sekani is
unequivocal; the Board was required to consider whether consultation was
required and whether it had taken place.
[104]
The majority places considerable weight on the
limited engagement of the Crown in the proceedings in respect of Line 9. In my
view, Carrier Sekani changes the question from being whether the Crown
is seeking relief or permission from the Board (as was BC Hydro), to one that
focuses on the legislative mandate given the Board by Parliament. Whether or
not the Crown shows up at regulatory proceedings cannot alter the
responsibilities of the Board with respect to the Crown’s duty of consultation
(see Promislow, J., Irreconcilable? The Duty to Consult and Administrative
Decision Makers Constitutional Forum Volume 22, Number 1, 2013). The
Board’s jurisdiction to assess consultation does not vary according to project
proponent. This conclusion makes sense because at a practical level, the
section 58 process culminates with a final decision, and any Aboriginal or
treaty rights that might be affected by the proposed project are affected in
the same way, regardless of the project proponent.
[105]
Further, in Carrier Sekani, the Supreme
Court of Canada “left for another day” the
question as to whether a legislative action itself triggers the duty to consult
or offends section 35 of the Constitution Act. In the particular
circumstances of this case, the requirement of Crown conduct is satisfied by
the regulatory regime which makes the Board the final decision maker. The duty
to consult is rooted in section 35 of the Constitution Act, and it
cannot be avoided by the Crown refusing to engage until it is too late in the
decision making process or by delegating the final decision making to a
tribunal. The duty, like the honour of the Crown, does not evaporate simply
because a final decision has been made by a tribunal established by Parliament,
as opposed to Cabinet.
C.
The application of Carrier Sekani to the
NEB
[106]
The Board must have, and exercise, the power to
assess whether the duty to consult has been fulfilled, and to refuse to grant
an approval if there is an unfulfilled duty to consult; otherwise the section
58 regime allows for the approval of projects which may adversely affect
Aboriginal rights without the Crown ever consulting with the Aboriginal group
in question. A project proponent can apply, go through the NEB's hearing
process, and receive approval. The Crown can remain silent, on the sidelines.
No consultation with the Crown need occur at any point. Indeed, the Crown lacks
the statutory authority to prevent an application from being approved by the
Board, even if it should want to.
[107]
This may be contrasted with the regime under
section 52, where (pursuant to section 54) the Governor in Council has the
final say. This moment of Crown involvement is crucial, because it is obvious
in the section 52 and 54 scenario that it would violate the Crown's Haida
obligations for the Governor in Council to grant final approval without
consulting. In the present case, however, Parliament has set up a scheme where
infringing projects may be approved without Crown consultation.
[108]
In Ross River Dena Council v. Government of
Yukon, 2012 YKCA 14, the Yukon Court of Appeal considered an analogous
situation. Under the Quartz Mining Act, SY 2003, c 14 (Quartz Mining
Act), an individual acquires mineral rights by physically staking a claim
and then recording it with the Mining Recorder. The Mining Recorder had no
discretion to refuse to record a claim that complied with the statutory
requirements. The Government of Yukon argued that the recording of a mineral
claim was not “contemplated Crown conduct” and
therefore there was no duty to consult.
[109]
The Court of Appeal rejected this argument, and
held at paragraph 37 that “[s]tatutory regimes that do
not allow for consultation and fail to provide any other equally effective
means to acknowledge and accommodate Aboriginal claims are defective and cannot
be allowed to subsist.” The Court of Appeal issued declarations that the
Government of Yukon has a duty to consult; however it also noted that the
Government of Yukon “may well wish to make statutory
and regulatory changes in order to provide for appropriate consultation.”
The Court suspended its declarations for one year to allow for amendments to
the Quartz Mining Act. Leave to appeal was refused (Docket: 35236,
September 19, 2013).
[110]
The Mining Recorder, whose duties were
essentially clerical, had no statutory authority to decide questions of law,
including the question of whether a Haida duty existed. There was thus
no way to close the loophole. If the Board is found to be similarly lacking in
competence, then section 58 would be similarly infirm. This, however, is not
the case; the Board had the power to consider the issue of Haida duties.
The NEB legislation avoids the problems of the Quartz Mining Act because
the NEB can check to make sure the duty to consult has been fulfilled.
[111]
Applying this reasoning, the Board should have
considered whether there was a duty to consult, and if so whether it had been
fulfilled, and granted approval only if there were no unfulfilled duty to
consult. If the board had understood that it had this power, and exercised it, it
would have been consistent with the duty to consult, which, it must be
remembered, is derived from section 35 of the Constitution Act.
[112]
As a final decision maker, Carrier Sekani
requires the Board to ask, in light of its understanding of the project and aboriginal
title and treaty interests, whether the duty to consult was trigged. If so, it
was required to ask whether the consultations had taken place. The answers to
those two questions, on the facts of this case were respectively affirmative
and negative. Given its understanding that there was an outstanding unfulfilled
duty to consult, it ought not to have rendered its approval.
[113]
The majority view this result as unfair to a
proponent, who should not be caught in the middle of a ministerial refusal to
consult and an inchoate and perhaps unreasonable expectation by the band as to
the fruits of that consultation.
[114]
There are several answers to this. First, it is
important to recall what is in issue. The duty to consult with Aboriginal
peoples and accommodate their interests is a constitutional duty invoking the
honour of the Crown, which requires that the Crown act with good faith to
provide meaningful consultation appropriate to the circumstance: Tsilhqot'in
Nation v. British Columbia, [2014] 2 S.C.R. 256, 2014 SCC 44; Carrier
Sekani; Haida at para. 41. The inconvenience to the proponent pales
when measured against that principle.
[115]
Second, from a practical standpoint, the courts
are available to determine whether the duty to consult has been discharged.
This is routine business.
[116]
Third, the problem could have been avoided had
the Minister followed the direction of this Court and the Supreme Court. Recall
that it was on January 30, 2014, three and on half months after the hearing
concluded, and a month before the Board decision was publically released (March
6, 2014), that the Minister stated his position.
[117]
The consultation process is reciprocal and
cannot be frustrated by the refusal of either party to meet or participate: Brokenhead
Ojibway First Nation v. Canada (Attorney General), 2009 FC 484, at para. 42
citing Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA
212 at paras. 52-53. Consultation itself is a distinct constitutional process “requiring powers to effect compromise and do whatever is
necessary to achieve reconciliation of divergent Crown and Aboriginal
interests”: Carrier Sekani at para. 74. The “common thread on the Crown's part must be 'the intention of
substantially addressing [Aboriginal] concerns as they are raised' through a
meaningful process of consultation”: Haida at para. 42 citing Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010 at para. 168. Responsiveness is
key and the Crown, even where a duty to consult is at the low end of the
spectrum, is required to engage directly with the affected First Nation: Taku
River Tlingit First Nation v. British Columbia (Project Assessment Director),
[2004] 3 S.C.R. 550, 2004 SCC 74, at para. 25; Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69,
at para. 64.
[118]
Fourth, on the majority understanding of Carrier
Sekani, consultation in this context becomes an afterthought, precisely
what the Supreme Court criticized in Mikisew Cree, at para. 64 per
Binnie J. The substantive content of consultations and the options available to
both parties would also be constrained to monetary compensation - an outcome
inconsistent with the objective of reconciliation which underlies the duty to
consult.
[119]
Finally, public policy interests are better
served if consultation moves in parallel with established regulatory
proceedings. As Kirk N. Lambrecht, Q.C. wrote in Aboriginal Consultation,
Environmental Assessment, and Regulatory Review in Canada (Regina:
University of Regina Press, 2013), the identification of aboriginal interests
and engagement of communities early in the decision making process enhances
positive and respectful relationships and dialogue, by elements of
reconciliation. In my respectful view, the result proposed in this case creates
a disincentive to timely, good faith and pragmatic consultations, and
undermines the overarching objective of reconciliation.
[120]
For even further clarity, none of this is to say
that the Board had the duty or power to actually perform the consultation. It
is a point of agreement between myself and the majority, and indeed between the
parties, that the Board is incapable of actually fulfilling the duty to
consult. To the extent that the Minister purported to rely on the Board to
fulfill the duty to consult, he did so in error. The Board's duty, instead, was
simply to ensure that when consultation had not occurred, it did not discharge
its mandate.
D.
Remedies
[121]
As noted at the outset, this case raises novel
issues with respect to the duty to consult where a tribunal is the final
decision maker. This is equally so with respect to remedy. Again, we are
sailing in uncharted waters. The Board was required, by Carrier Sekani,
to ask whether the duty to consult had been triggered and if so, whether the
consultation had been adequate. Had it asked those questions it would have
found that, as a final decision maker of the project which would affect
aboriginal interests, the duty was triggered. As the Minister did not engage,
it could not answer the second in the affirmative.
(1)
Judicial review
[122]
The majority concluded that the Minister’s
response letter dated January 30, 2014, can be taken as a refusal by the Crown
to engage in Haida consultations. At the hearing of this appeal, the
Minister agreed that judicial review of the letter, as a Crown decision, is
open to the appellant (presumably declaratory, injunctive or other relief under
section18.1 of the Federal Courts Act (R.S.C., 1985, c. F-7) or Rule 372
and following of the Federal Courts Rules). In such a proceeding,
however, the Minister stated that he would assert that the Board proceeding “entirely discharges” the duty to consult.
[123]
Judicial review of the Minister’s letter, in the
circumstances, is an empty remedy. The Minister ultimately has no power in
respect of the section 58 order. The decision of the Board is final. A final
decision in respect of the section 58 application was made by the Board on
March 6, 2014. The Minister does not propose to do anything and has no power in
respect of the decision. There is nothing to be enjoined, quashed or compelled.
[124]
Substantively, any consultation or accommodation
which might flow from a successful judicial review would be too late. The
direction from the Supreme Court is that if consultation is to be meaningful it
must take place at the stage of the grant or renewal of the licence or permit
in question. That is, consultation must be timely: see Carrier Sekani at
para. 35; Haida at para. 76; Sambaa K'e Dene First Nation v. Duncan,
2012 FC 204 at para. 165; The Squamish Nation et al v. The Minister of Sustainable
Resource Management et al, 2004 BCSC 1320 at paras. 74-75; and Gitxaala
Nation v. Canada (Transport, Infrastructure and Communities), 2012 FC 1336
at para. 40.
[125]
The suggestion that the only remedy lies in an
after-the-fact judicial review of a Minister’s letter is inconsistent with the
Supreme Court in Tsilhqot'in at paragraph 78 where the Court reiterated
that the duty to consult “must be discharged prior to
carrying out the action that could adversely affect the right.”
According to the jurisprudence, the duty to consult should have been discharged
prior to the issuance of a section 58 order. This can be achieved by requiring
the Board to ask the questions required by Carrier Sekani.
(2)
Declaratory relief
[126]
There is a gap in the regulatory scheme and the section
58 approvals process which allows the duty to consult, by design or otherwise,
to fall through the cracks. The appellant was attuned to this as evidenced by
the September 27, 2013 letter sent from Chief Miskokomon and Chief Plain to the
Prime Minister, the Minister of Aboriginal Affairs and Northern Development
Canada and the Minister of Natural Resources Canada:
There is a gap in the current approvals
process for the Project which has resulted in the Crown failing to consult with
AFN, COTTFN, and other Aboriginal peoples whose rights may be severely impacted
by the Project. It is incumbent on you to act immediately and honourably fill
that gap by initiating consultation with each of AFN and COTTFN now.
[127]
The mischief foreshadowed by the Supreme Court at
paragraph 62 in Carrier Sekani has thus, in this case, materialized:
The fact that administrative tribunals are
confined to the powers conferred on them by the legislature, and must confine
their analysis and orders to the ambit of the questions before them on a
particular application, admittedly raises the concern that governments may
effectively avoid their duty to consult by limiting a tribunal’s statutory
mandate. The fear is that if a tribunal is denied the power to consider
consultation issues, or if the power to rule on consultation is split between
tribunals so as to prevent any one from effectively dealing with consultation
arising from particular government actions, the government might effectively be
able to avoid its duty to consult.
[Emphasis added]
[128]
Declaratory relief similar to that obtained in Ross
River was not sought in this Court, nor was the point argued. It would be
inappropriate to resort to it in these circumstances. Indeed, it is
unnecessary, as the Board has the legislative mandate to ask the questions
mandated by Carrier Sekani and ensure that consultation is discharged
before it makes a final decision.
[129]
I would therefore allow the appeal with costs.
“Donald J. Rennie”
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