Date: 20151020
Docket: A-358-14
Citation:
2015 FCA 222
|
CORAM:
|
RYER
J.A.
WEBB
J.A.
RENNIE
J.A.
|
|
BETWEEN:
|
|
CHIPPEWAS OF
THE THAMES FIRST NATION
|
|
Appellant
|
|
and
|
|
ENBRIDGE
PIPELINES INC.
THE NATIONAL
ENERGY BOARD
ATTORNEY
GENERAL OF CANADA
|
|
Respondents
|
Heard
at Toronto, Ontario, on June 16, 2015.
Judgment delivered at Ottawa, Ontario, on October 20, 2015.
|
REASONS FOR
JUDGMENT BY:
|
RYER
J.A.
|
|
CONCURRED IN BY:
|
WEBB J.A.
|
|
DISSENTING REASONS BY:
|
RENNIE
J.A.
|
Date:
20151020
Docket: A-358-14
Citation:
2015 FCA 222
|
CORAM:
|
RYER
J.A.
WEBB
J.A.
RENNIE
J.A.
|
|
BETWEEN:
|
|
CHIPPEWAS OF
THE THAMES FIRST NATION
|
|
Appellant
|
|
and
|
|
ENBRIDGE
PIPELINES INC.
THE NATIONAL
ENERGY BOARD
ATTORNEY
GENERAL OF CANADA
|
|
Respondents
|
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 that 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”
J.A.
“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”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL
AND SOLICITORS OF RECORD
|
Docket:
|
A-358-14
|
APPEAL FROM A DECISION
OF THE NATIONAL ENERGY BOARD DATED MARCH 6, 2014 (DOCKET NUMBER OH-002-2013)
|
STYLE
OF CAUSE:
|
CHIPPEWAS OF THE THAMES FIRST NATION
v. ENBRIDGE PIPELINES INC., AND THE NATIONAL ENERGY BOARD AND ATTORNEY GENERAL
OF CANADA
|
||
|
PLACE OF HEARING:
|
toronto, ontario
|
||
|
DATE OF HEARING:
|
june 16, 2015
|
||
|
REASONS FOR
JUDGMENT BY:
|
ryer j.a.
|
||
|
CONCURRED IN BY:
|
WEBB J.A.
|
||
|
dissenting REASONS
BY:
|
RENNIE J.A.
|
||
|
DATED:
|
OCTOBER 20, 2015
|
||
APPEARANCES:
|
David Nahwegahbow
Scott Robertson
|
For The APPELLANT
|
|
Joshua Jantzi
Doug Crowther
|
For The Respondent, Enbridge
Pipelines Inc.
|
|
Rebecca Brown
|
FOR THE RESPONDENT, THE
NATIONAL ENERGY BOARD
|
|
Peter Southey
Dayna Anderson
Sarah Bird
|
FOR THE RESPONDENT, ATTORNEY
GENERAL OF CANADA
|
SOLICITORS OF RECORD:
|
Nahwegahbow, Corbiere
Rama, Ontario
|
For The APPELLANT
|
|
Dentons Canada LLP
Calgary, Alberta
|
For The
Respondent, Enbridge Pipelines Inc.
|
|
National Energy Board
Calgary, Alberta
|
FOR THE
RESPONDENT, THE NATIONAL ENERGY BOARD
|
|
William F. Pentney
Deputy Attorney General of Canada
|
FOR THE RESPONDENT, ATTORNEY GENERAL OF
CANADA
|
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