|
Indigenous - Duty to Consult (2). Mikisew Cree First Nation v. Canadian Environmental Assessment Agency
In Mikisew Cree First Nation v. Canadian Environmental Assessment Agency (Fed CA, 2023) the Federal Court of Appeal extensively considered the indigenous law duty to consult, here in relation to a dismissed judicial review of the decision of the then federal Minister of Environment and Climate Change to decline "to designate an extension of the Horizon Oil Sands Mine (the Horizon Mine) owned by the respondent, Canadian Natural Resources Limited (CNRL), as a reviewable project under subsection 14(2) of the now-repealed Canadian Environmental Assessment Act":II. Did the Federal Court Err in Deciding that the Duty to Consult was Not Triggered?
[15] I turn first to examine whether the Federal Court erred in concluding that the duty to consult was not triggered by the Minister’s refusal to designate the Extension Project pursuant to subsection 14(2) of CEAA, 2012.
A. General Principles Applicable to the Duty to Consult
[16] The duty to consult flows from the honour of the Crown and is constitutionalized by section 35 of the Constitution Act, 1867: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 at para. 78 [Ktunaxa Nation]. It accordingly follows that determining the existence, extent, and content of the duty to consult involves a question of law, reviewable by this Court for correctness: Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, [2020] 3 F.C.R. 3 at para. 27, leave to appeal to SCC refused, 39111 (2 July 2020) [Coldwater First Nation]; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148, [2015] F.C.J. No 829 (QL) at paras. 46-47; see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 55 [Vavilov].
[17] This is to be contrasted with the judicial review of the adequacy of any consultation conducted by or on behalf of the Crown. Indeed, whether the duty to consult has been fulfilled or not in a given case is reviewable under the deferential reasonableness standard: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 7, [2004] 3 S.C.R. 511 at para. 62 [Haida Nation]; Ktunaxa Nation at para. 82; Coldwater First Nation at para. 27.
[18] In the present case, the Federal Court held that the duty to consult was not triggered. This is a determination of law, reviewable for correctness. Thus, I must assess whether the Federal Court was correct in concluding that the duty to consult was not triggered in the case at bar. As will soon become apparent, I agree with the Federal Court’s conclusion that the duty to consult was not triggered in this case; however, I do not agree with all of the Federal Court’s reasoning that led it to reach that conclusion.
[19] In Haida Nation, the Supreme Court held that the duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it”: at para. 35. The Supreme Court later confirmed that this two part test extends to Treaty rights and claims: see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 55 [Mikisew Cree].
[20] In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 [Rio Tinto], the Supreme Court elaborated on the test set out in in Haida Nation, by setting out a three-part, as opposed to a two-part, test. Since Rio Tinto, the test for assessing whether a duty to consult is triggered in a given situation “… can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right”: at para. 31.
[21] The Supreme Court went on in Rio Tinto to further describe each of the foregoing elements.
[22] The first element, regarding the need to establish the Crown’s knowledge of a potential Aboriginal or Treaty claim or right, is not at issue in this appeal and was conceded by Canada before both the Federal Court and this Court. Therefore, no more needs to be said about the first element of the test. The second and third elements of the test for assessing whether a duty to consult arises, on the other hand, are at issue in the case at bar.
[23] In Rio Tinto, the Supreme Court held that the second element of the test for assessing whether a duty to consult arises requires “…conduct that may adversely impact on the claim or right in question”: at para. 42. The Court continued by stating that the nature of governmental action that gives rise to a duty to consult is “not confined to the exercise of statutory powers” or to “decisions or conduct which have an immediate impact on lands or resources”: at paras. 43 and 44. Rather, the duty to consult may extend to “‘strategic higher level decisions’ that may have an impact on Aboriginal claims and rights”: at para. 44, citing Jack Woodward, Native Law, vol. 1 (Toronto: Carswell, 1994, loose‑leaf updated 2010, release 4) at 5-41 [Woodward].
[24] Turning to the third element of the test for assessing whether a duty to consult arises, the Supreme Court found that “a claimant must show a causal connection between the proposed government action and a potential for adverse impacts on pending Aboriginal claims or rights”: at para. 45. As with the second element of the test, the Supreme Court held that “…. a purposive approach to this element is in order” in light of the purpose of the duty to consult, which “… seeks to provide protection to Aboriginal and treaty rights while furthering the goals of reconciliation between Aboriginal peoples and the Crown”: at paras 34 and 45. The third element of the test for assessing whether a duty to consult exists, like the second element, may be met where the conduct or decision involves “…high level management decisions or structural changes to the resource’s management [that] may … affect Aboriginal claims or rights even if these decisions have ‘no immediate impact on lands and resources’”: at para. 47, citing Woodward at p. 5-41.
[25] However broad this approach is, though, “[m]ere speculative impacts … will not suffice”: at para. 46. Rather, “… there must be ‘an appreciable effect on the First Nations’ ability to exercise their aboriginal right’. The adverse effect must be on the future exercise of the right itself; an adverse effect on a First Nation’s future negotiating position does not suffice”: at para. 46, quoting from R. v. Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653, at para. 44, leave to appeal to SCC refused, 32142 (15 November 2007).
[26] This Court has held that the time for assessing whether a duty to consult arises is before the governmental decision is made or the conduct in question occurs: Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, 308 A.C.W.S. (3d) 676 at para. 50. This makes sense since the procedural right to be consulted cannot depend on whether the ultimate decision rendered is favourable to the position advocated by the party claiming the existence of a duty to consult.
[27] Consultation obligations extend to both the Crown in right of Canada and in right of a province, with each owing an independent duty to consult in respect of its own contemplated conduct or decisions: Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447 at paras. 50-51, Haida Nation at paras. 57-59. Thus, as the respondents, the Canadian Environmental Assessment Agency and the Minister of Environment and Climate Change (collectively, Canada) correctly note at paragraph 58 of their memorandum of fact and law, “the federal Crown is not responsible for ensuring that the provincial Crown meets its independent duty” to consult. This principle has important implications in the case at bar.
....
D. Discussion
[50] With this background in mind, I turn now to the examination of whether the Federal Court erred in its conclusion that the duty to consult was not triggered.
[51] In examining this question, it is essential to correctly characterize the Crown conduct at issue. Here, the contemplated conduct involves the Minister’s determination of whether or not to issue a designation under subsection 14(2) of CEAA, 2012. Thus, the decision involves consideration by the Minister of whether or not to exercise a discretionary power afforded to her by statute. The fact that a determination on whether or not to exercise a statutory power was at play, however, is not determinative of whether the duty to consult arises. Rather, it is the potential impact of the conduct that must be assessed.
[52] As noted, the Supreme Court held in Rio Tinto that both the second and third elements of the test it set out in that case require consideration of the potential of the decision or conduct to negatively impact Aboriginal or Treaty claims or rights. There is accordingly a degree of overlap between the second and third elements in the test.
[53] The distinction between the two elements is that, under the second element, what is assessed is the general nature of the potential impact of a contemplated decision or conduct on Aboriginal or Treaty claims or rights to determine whether such an impact exists. The third element of the test, on the other hand, focusses on causation and assesses the degree to which the decision or conduct gives rise to non-speculative impacts.
[54] The Saskatchewan Court of Appeal has recently discussed the distinction between the second and third elements of the test from Rio Tinto in George Gordon First Nation v. Saskatchewan, 2022 SKCA 41, leave to appeal to SCC refused, 40184 (16 March 2023). In that case, the Court held that, under the second element, “… there must be current contemplated Crown conduct or a Crown decision… that may adversely have an impact on the claim or right at some point in time”: at para. 87 [emphasis added]. As concerns the third element, the Saskatchewan Court of Appeal noted that it requires that:... the contemplated conduct or decision … have the potential to adversely affect an Indigenous claim or right in an appreciable manner, and that the ‘claimant must show a causal relationship between the proposed government conduct or decision’ and the potential for such an effect (at para, 87, quoting from Rio Tinto at para. 45). [55] In the case at bar, the Federal Court found that the second element was met without analyzing the potential impact of the Minister’s decision. However, Rio Tinto mandates the consideration of the potential impact of the contemplated Crown conduct or decision under both the second and third elements of the test.
[56] It is my view that the second element of the test from Rio Tinto is not met in the present case. Here, there is an ongoing mandatory provincial environmental assessment in which the Mikisew have the right to participate and to be consulted. Given this, the decision of the federal Minister under subsection 14(2) of CEAA, 2012 does not have any potential impact on the Mikisew’s Aboriginal or Treaty rights or claims. Any impact that might be experienced on such rights or claims would flow from an approval of the Extension Project, which will be approved—or not—by the Alberta Energy Regulator. In these circumstances, there is no contemplated conduct or decision of the federal Crown capable of affecting the Mikisew’s claimed Treaty or Aboriginal rights.
[57] On this point, it must be underscored that it is not the responsibility of the federal Crown to sit in judgment of the Crown in right of Alberta’s compliance with the provincial Crown’s consultation and accommodation obligations. That is rather a matter for assessment by the Alberta courts. Thus, if, as the Mikisew allege will happen, the Alberta process were to unreasonably fail to adequately discharge Alberta’s consultation obligations, that is a matter that could be taken up with the courts in Alberta. I agree with Canada that “the Mikisew position incorrectly characterizes the Minister’s [d]ecision as a high level and strategic decision that sets the stage for future provincial decisions or regulatory authorization. The Minister has no role in the provincial assessment processes applicable to the [Extension] Project”: Canada’s Memorandum of Fact and Law at para. 68.
[58] In short, the Mikisew cannot require the federal Crown to undertake consultation by making a request under subsection 14(2) of CEAA, 2012, in circumstances where there is an ongoing provincial environmental assessment process that engages the provincial Crown’s duty to consult with the Mikisew.
[59] Thus, I conclude that the Federal Court erred in finding that the second element from the test in Rio Tinto was met in the case at bar.
[60] That said, I want to add that the foregoing conclusion regarding the lack of impact of the Minister’s decision under the second element of the test from Rio Tinto may be different if there were a situation involving a project in respect of which a provincial environmental assessment was not required and an optional federal one was available. Determining whether a duty to consult arises and the extent of that duty are context-specific, and the foregoing hypothetical situation involves a materially different context.
[61] Turning to the third element of the test in Rio Tinto, I see no error in the Federal Court’s conclusion that the third element of the test is not met. I agree with the Federal Court that any impact on the Mikisew’s Aboriginal or Treaty rights or claims can flow only from a decision to approve the Extension Project. There is thus no causal relationship between the claimed impact and the Minister’s decision.
[62] As was noted by the Saskatchewan Court of Appeal in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 31, 253 A.C.W.S. (3d) 252 at paragraph 104, “… if adverse impacts are not possible until after a later-in-time, independent decision, then it is that later decision that triggers the duty to consult”.
[63] This Court endorsed a similar principle in Hupacasath First Nation v. Canada (Minister of Foreign Affairs), 2015 FCA 4, [2015] F.C.J. No. 4 at paragraph 102, where it stated that “ [a]n impact that is, at best, indirect, that may or may not happen at all (such that we cannot estimate any sort of probability), and that can be fully addressed later is one that falls on the speculative side of the line, the side that does not trigger the duty to consult”.
[64] As mentioned above, the Mikisew cited several cases to the Federal Court in addition to Ermineskin in support of their submissions on the consultation issue. I agree with the basis upon which the Federal Court distinguished these cases, which all involved materially different fact patterns than the facts at issue in the appeal before us.
[65] In terms of the additional cases now cited to this Court by the Mikisew on the consultation issue, the only one that is close to the fact pattern in the case at bar is Coastal First Nations. There, the British Columbia Supreme Court held, in obiter dicta, or non-binding comment, that the province owed a duty to consult to the First Nation applicants on whether to withdraw from an Equivalency Agreement with the federal government. Under that Agreement, British Columbia forewent its obligation to conduct an environmental assessment of the proposed Northern Gateway pipeline in favour of one conducted by the National Energy Board. The First Nations requested that the Province consult with them and consider exercising the 30-day termination provision in that Agreement, which would have resulted in a compulsory provincial environmental assessment of the pipeline.
[66] Not only is Coastal First Nations not binding upon this Court, but it is also not persuasive given that the British Columbia Court of Appeal has cast doubt upon its principal holdings in Squamish Nation v. British Columbia (Environment), 2019 BCCA 321, 29 B.C.L.R. (6th) 77 at paragraph 9 and Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, aff’d 2020 SCC 1 at paragraph 51. I also believe that the facts in Coastal First Nations are distinguishable from those in the case at bar because there has been no abdication by the federal government of a mandatory environmental assessment process in favour of a provincial one. Further, the alleged potential adverse effects on Mikisew’s rights that could trigger the duty to consult in this case derive from the Alberta Energy Regulator’s potential approval of the Project, not from the Minister’s decision. In other words, there is no causal link between the Minister’s decision not to designate a project and the potential adverse effects that Mikisew claim. For these reasons, Coastal First Nations does not support the conclusion that the Mikisew seek.
[67] Given the nature of the decision at issue in the instant case, I find that there was no obligation for the Minister to have consulted with the Mikisew before deciding on their designation request. Thus, the Federal Court was correct in reaching the same conclusion and the first ground of appeal fails. . Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the 'duty to consult' of indigenous law:(4) The Crown’s duty to consult and accommodate is fundamental
[21] The Crown’s duty to consult and accommodate is a justiciable right and is a cause of action. It is grounded in the Honour of the Crown, which, in itself, is not a cause of action.[15] The duty was developed at length in Haida Nation, at para. 16 and following. McLachlin C.J. explained, at para. 27, how the doctrine applies in the interregnum period between the assertion of an Aboriginal right and its protection in a modern-day treaty:The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. [22] In the interregnum period, McLachlin C.J. posited the existence of a continuum over which the level of consultation and accommodation will vary from minimal, at one end, to the requirement of Aboriginal consent, at the other end, depending on the strength of the Aboriginal interest and the position of that Aboriginal interest enroute from its simple assertion to its protection in a treaty.[16] If an Aboriginal claim is asserted before a treaty exists, as in this case, the claimant First Nation might still have access to a remedy but need not prove its full entitlement as a condition of seeking judicial relief. Chief Justice McLachlin underlined this point in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 40: “[w]hile the existence of a potential claim is essential, proof that the claim will succeed is not.” She added, “[w]hat is required is a credible claim.”
....
[38] As I understand the chain of reasoning in the pleading, the complaint is that Ontario did not consult with the Algonquins when it considered the claim of the Métis Nation to harvest in the Algonquin settlement area. This failure to consult and accommodate is alleged in para. 2(g). The argument is that if Ontario had consulted and accommodated, then it might not have concluded that the Killarney and the Mattawa/Ottawa River Métis communities met the Powley test for the recognition of Aboriginal rights. The only remedy that can restore the constitutional status quo ante is the declarations claimed in paras. 2(b) and (c): “Ontario has incorrectly concluded that there is a historic Métis community in the Mattawa region or Mattawa/Ottawa River” and “Ontario has incorrectly concluded that there is a historic Métis community in Killarney, or alternatively, if such a historic Métis community does exist, a declaration that its harvesting rights do not extend into the [Algonquin] Settlement Area.” The consequential relief is pleaded in para. 2(d) – an injunction restraining Ontario from extending harvesting rights to these communities, without, as noted in para. 2(f), the consent of the Algonquins.
[39] The restoration of the status quo ante Ontario’s alleged breach of the duty to consult could impact the new rights of the Métis communities that Ontario has recognized. But Powley plainly raises precisely that prospect by implication, as the ongoing assertion of Métis Aboriginal rights progresses in Ontario and across Canada. This is the open water to which I alluded earlier, which Powley has left in its wake, and which must be faced squarely. Whether the Algonquins can prove that they are entitled to “deep consultation” and the accommodation they claim, that the Crown breached its duty to consult and accommodate, and that the remedies they seek are appropriate, are matters not for a pleadings motion but for trial and, more hopefully, settlement negotiations, which are much to be preferred.[17]
[40] The motion judge’s standing analysis is also inconsistent with her analysis of the duty to consult and accommodate. Her statement, at para. 82, that the Algonquins were required to prove their own rights is not consistent with her statement, at para. 72, that a potential for adverse impact suffices to raise the duty to consult and accommodate. The Algonquins are seeking protection for their interests, which might prove out eventually to be rights, and argue that the recognition Ontario afforded to the Killarney and the Mattawa/Ottawa River Métis communities adversely impacts them.
[41] In my view, the duty to consult and accommodate gives the Algonquins the necessary standing to bring the action and to claim the consequential relief sought. Nothing more by way of legal authority is required to underpin the consequential relief the Algonquins seek.
[42] The words of McLachlin C.J. in Rio Tinto, at para. 37, bear repeating: 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 the consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras. 13-14.[43] These words should be applied, with necessary modifications, beyond the typical two-party context of a case between the Crown and a First Nation to a case, like this one, in which two Aboriginal claimants are competing over a resource the Crown controls. There can be no reconciliation without consultation and accommodation, and the Algonquins claim there was none here. And there can be no flinching from Powley.
[44] Case law bears out the need to be flexible in this domain. Only the Crown is bound by the duty to consult and accommodate, but it does not follow that only the Crown can be named as a party where Aboriginal rights or title are in issue. It depends on the circumstances, or, as McLachlin C.J. put it in Rio Tinto, at paras. 36-37, it “varies with the situation”. Two examples are illustrative. First, in Haida Nation, the claim was brought against both the Crown and a third party, Weyerhaeuser Company Limited, which owned logging licences on land to which the Haida Nation claimed title. Chief Justice McLachlin stated, at para. 56, that third parties are under no duty to consult or accommodate. But she added that, circumstantially, a third party might be liable to Aboriginal peoples for negligence or breach of contract. In Haida Nation, the relief sought engaged the third party, against which a duty to consult and accommodate was pursued, albeit unsuccessfully.
[45] The second example is North Slave Métis Alliance v. Canada (Indian Affairs and Northern Development), 2017 FC 932, [2018] 2 C.N.L.R. 99. The claimant was a member and representative of the North Slave Métis Alliance. He asserted that the Federal Crown and the Government of the Northwest Territories owed the Alliance a duty to consult and accommodate over its decision to enter into an agreement-in-principle with three other Métis groups, who were named and participated as respondents in the proceeding. The claim was limited to a breach of the duty to consult, and it challenged the propriety or legitimacy of the agreement-in-principle. All of the Indigenous groups remained parties to the proceeding, though the final remedy – an order requiring more substantial consultation than had occurred – applied only to the Crown: North Slave Métis Alliance, at para. 250.
....
[54] First, a claim for breach of the duty to consult can be advanced in an action, as it was in Tsilhqot’in Nation. As a general principle, a litigating party can select the legal process it wishes to pursue, subject to the Rules of Civil Procedure and to the requirements of the law more generally. Unless the law mandates a certain form of proceeding, the party starting it can choose the legal process to its own advantage. Further, even if a party selects the wrong form of proceeding, striking the claim merely on the basis that the litigant has “adopted the wrong ‘form of action’” might not be appropriate: see Chilian v. Augdome Corp. (1991), 1991 CanLII 7335 (ON CA), 2 O.R. (3d) 696 (C.A.), at para. 39. As Morden A.C.J.O. noted in Chilian, at para. 39, r. 2.01(2) provides that the “court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed”. A party should not be deprived of its choice of process lightly. . Roseau River First Nation v. Canada (Attorney General)
In Roseau River First Nation v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR against federal Cabinet Orders-in-Council that authorized the National Energy Board to issue a Certificate of Public Necessity and Convenience for an international transmission line crossing Indigenous territory. A major basis of the JR was the alleged failure of the federal government to meet their indigenous duty to consult about the project, the requirements of which are addressed here:[5] At all material times, Canada has acknowledged that it owed a deep duty to consult with potentially impacted Indigenous groups, including the appellants, before deciding upon the Project. Canada heavily relied upon a thorough National Energy Board process to satisfy the duty. That process, in turn, relied upon much of the evidence tendered in a parallel Manitoba review process conducted under provincial law.
....
A. The methodology in cases such as this
[8] In a number of cases, this Court has reviewed processes for consultation that culminate in a final administrative decision by the Governor in Council. This Court’s methodology has been to review the Governor in Council’s decision in two separate steps:(1)Examining the Governor in Council’s compliance with administrative law principles: i.e., assessing for substantive defects under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 and assessing for procedural defects under Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
(2)Examining the Crown’s compliance with duty to consult principles under section 35 of the Constitution Act and the honour of the Crown: i.e., Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. On (1), the issue of the existence or scope of the duty to consult is reviewed for correctness. In these appeals, the appellants do not raise any issues concerning the existence or scope of the duty to consult. On all other issues under (1), the standard of review is reasonableness: Coldwater First Nation v. Canada, 2020 FCA 34, [2020] 3 F.C.R. 3 at paras. 26-27.
....
[16] It was reasonable for the Governor in Council to rely upon the process before the National Energy Board to consult and, where warranted, accommodate Indigenous groups.
[17] It is well-established that the Governor in Council and, more widely, the Crown, may rely on steps undertaken by a regulatory agency to fulfil its duty to consult in whole or in part and, where possible and appropriate, accommodate. This assumes that the regulatory agency to which the Crown delegates responsibility has the ability to exercise functions under its governing legislation that will fulfil what the duty to consult requires in the circumstances: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 at paras. 30-34; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at paras. 55 and 60.
[18] This was the case here.
[19] However, the involvement of an agency does not relieve the Crown or entities such as the Governor in Council from their obligation to assess the adequacy of the consultation: Clyde River at para. 22; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3 at para. 493. The Governor in Council was aware of the nature of the National Energy Board’s process and had the reasons of the National Energy Board before it, but the Governor in Council had to make its own assessment of adequacy.
[20] It is well-established that the National Energy Board’s process can fulfil much of the duty to consult due to its procedural powers, its technical expertise, and its remedial powers to make accommodation a reality where warranted: Clyde River at paras. 20-34; Bigstone Cree Nation v. Nova Gas Transmission, 2018 FCA 89, 16 C.E.L.R. (4th) 1 at para. 50; Tsleil-Waututh Nation at para. 491.
[21] In this case, the National Energy Board process provided a forum for all potentially impacted groups to participate, receive and test information, receive funding, and make submissions about their concerns and how their concerns could be accommodated. The Governor in Council had no indication that the National Energy Board process was deficient or that the Board was not attentive to the issues before it. Far from it. Among other things, at the end of its reasons the Board set out a lengthy summary of Indigenous concerns and its responses to them. It also imposed 28 conditions on the Project.
[22] When assessing the administrative law acceptability of the Order in Council in this case, this Court must be satisfied that the Governor in Council properly considered the Indigenous interests and the adequacy of the consultation and accommodation up to the date of the Order in Council. The Order in Council itself shows that Indigenous interests and the adequacy of the consultation and accommodation were front and center in the Governor in Council’s consideration:Whereas the Governor in Council, having considered Indigenous concerns and interests identified in the Crown’s consultation report…is satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated, including by amending some of the terms and conditions set out in Appendix III of the Board’s Report ... [23] The words of this Court in Bigstone Cree Nation at para. 67 are apposite here. It considered similar text in an order in council and found that there was “no room for ambiguity”: the Governor in Council “considered its obligation to consult and, if necessary accommodate” and concluded that “it has fulfilled that obligation”.
[24] This case is very similar to Coldwater First Nation where the Governor in Council engaged in a thorough review and assessment following a thorough review and assessment by the National Energy Board. As in Coldwater First Nation, its assessment that the Crown had fulfilled the duty to consult is reasonable. The appellants have failed to persuade me that the Governor in Council unreasonably considered the duty to have been fulfilled.
[25] Overall, for the foregoing reasons, the Governor in Council’s decision to enact the Order in Council was reasonable in an administrative law sense. This conclusion is bolstered by the analysis that follows.
C. The duty to consult
[26] Notwithstanding the reasonableness of the Order in Council in an administrative law sense, this Court must now assess whether the Crown satisfied the duty to consult based on the honour of the Crown and section 35 of the Constitution Act, 1982.
[27] Canada’s duty to consult is grounded in a key principle: the honour of the Crown. The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of an Indigenous right or title that is protected by s. 35 of the Constitution Act, 1982 and contemplates conduct that might adversely affect those matters: Haida Nation at para. 35.
[28] The duty to consult varies according to the strength of the asserted claim and the seriousness of the potential adverse impact of the contemplated conduct: Haida Nation at para. 39. The duty has both informational and response components.
[29] At the upper end of the duty, which Canada acknowledges is owed here, the informational component requires the Crown to provide timely notice to Indigenous groups and engage directly with them so they have a chance to express their interests and concerns: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 64. The Crown must make a genuine effort to ascertain and take into account their key concerns. It must also provide information about what the Crown knew to be their interests and what the Crown anticipated might be the potential adverse impact on their interests.
[30] The response component requires the Crown to allow Indigenous groups to formally participate in the decision-making process, solicit and listen carefully to the groups’ concerns and attempt to minimize the adverse impacts. In doing this, it must consider and sometimes agree to accommodations or, alternatively, give reasons on why accommodations will not be made: Haida Nation at paras. 44-47; Coldwater First Nation at para. 76. This can lead to further consultation: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099 at para. 60.
[31] In fulfilling these duties, the Crown is not held to a standard of perfection: Coldwater First Nation at para. 54.
[32] As well, obligations exist on both sides. The process is a “two-way street”: Haida Nation at para. 48; Coldwater First Nation at para. 58; Pimicikamak et al v. Her Majesty the Queen in Right of Manitoba et al, 2016 MBQB 128, 267 A.C.W.S. (3d) 751 at para. 44. Indigenous groups must carry out their end of the consultation, make their concerns known, respond to the government’s attempt to meet their concerns and suggestions, and try to reach some mutually satisfactory solution: Mikisew Cree First Nation at para. 65. Indigenous groups fall short when they fail to engage in good faith, refuse to meet, unreasonably impose conditions during the consultation process, make unreasonable refusals, engage in tactical delays, consult only on their own terms, or maintain intractable or confrontational positions: Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722 at paras. 39, 45 and 50-55; Coldwater First Nation at para. 55; R v. Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653 at para. 39; Bigstone Cree Nation at para. 43. Indigenous groups are not entitled to a one-sided process. Nor are they entitled to a “veto”: Haida Nation at paras. 62-63; Coldwater First Nation at paras. 53-55; Gitxalla Nation at para. 179; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148, 474 N.R. 350 at para. 56. Overall, a process of give and take is required: Coldwater First Nation at para. 58.
[33] In this case, much of the consultation took place within the National Energy Board process. As mentioned above, this was a satisfactory way to proceed in fulfilment of the duty.
[34] Overall, the Court must view the consultation process as a whole to see if there were reasonable efforts to inform, consult, and accommodate: Haida Nation at para. 62; Bigstone Cree Nation at paras. 34 and 76. The focus is on the process and whether reasonable efforts were made, and not on the substantive outcome: Coldwater First Nation at paras. 29 and 53. Similarly, it is not for the court to delve into the often scientific and technical task of determining whether accommodations will be effective. Rather, accommodations should be seen as “settlement[s] or compromise[s]” that try to “harmonize conflicting interests and move further down the path of reconciliation”: Haida Nation at para. 49.
[35] Perfection is not required and some errors and omissions in the fulfilment of the duty can be tolerated: Haida Nation at para. 62; Bigstone Cree Nation at paras. 34 and 49.
|
