Nunatsiavut Government v. Canada (Attorney General) et al., 2015 FC 492

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 17, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 492;(2015), 478 F.T.R. 146 (FC)

Nunatsiavut Govt. v. Can. (A.G.) (2015), 478 F.T.R. 146 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.033

Nunatsiavut Government (applicant) v. Attorney General of Canada (Department of Fisheries and Oceans)

(respondent) and Her Majesty in Right of Newfoundland and Labrador as Represented by The Minister of the Department of Environment and Conservation (second respondent) and Nalcor Energy (third respondent)

(T-1347-13; 2015 FC 492)

Indexed As: Nunatsiavut Government v. Canada (Attorney General) et al.

Federal Court

Strickland, J.

April 17, 2015.

Summary:

The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy. Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador. The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans, in the decision to issue the Authorization.

The Federal Court dismissed the application with no order for costs.

Administrative Law - Topic 3308

Judicial review - General - Bars - Collateral attack - [See third Indians, Inuit and Métis - Topic 3.1 ].

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - [See second Indians, Inuit and Métis - Topic 3.1 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - [See third Indians, Inuit and Métis - Topic 3.1 ].

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians, Inuit or Métis - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - The Federal Court held that the existence and extent of the duty to consult or accommodate was to be assessed on the correctness standard - The Crown had to correctly identify the legal parameters of the content of the duty to consult - If the Crown correctly identified the prevailing legal parameters, then the adequacy of the consultation process would be reviewed on the reasonableness standard - See paragraphs 99 to 120.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians, Inuit or Métis - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - The Federal Court dismissed the application - However, given the nature of the subject matter and that the question raised by the applicant concerning mercury bioaccumulation was an important one, there would be no order for costs against the applicant - See paragraph 346.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians, Inuit or Métis - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - The applicant submitted that the Authorization was predicated on Canada's Response and the Course of Action Decision which permitted the Project to proceed such that any failure to adequately consult in respect of those decisions tainted or compromised the ability to issue the Authorization - Nalcor submitted that this was an impermissible collateral attack on Canada's Response and the Course of Action Decision - First, the time period to challenge those decisions had expired - Second, the Authorization was not predicated on Canada's Response and the Course of Action Decision - Finally, the challenge to Canada's Response and the Course of Action Decision was improperly framed and pleaded as no relief was sought in relation to those decisions and seeking judicial review of three separate decisions would contravene rule 302 of the Federal Court Rules - The Federal Court stated that "the totality of the consultation between Canada and the Applicant in each phase of the EA must be considered to understand the extent of the consultation and accommodation in respect of the Authorization. To the extent that the Applicant questions the content or adequacy of the consultation with respect to the issuance of the Authorization, it is entitled to look to the prior consultation record for that purpose, but not as an attempt to impugn the validity of those prior decisions" - See paragraphs 180 to 192.

Indians, Inuit and Métis - Topic 3.5

General - Duty owed to Inuit by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - One issue was whether the Labrador Inuit Land Claims Agreement, between the Inuit of Labrador, Her Majesty the Queen in right of Newfoundland and Labrador, and Her Majesty the Queen in right of Canada (January 22, 2005) exhaustively defined the Crown's duty to consult - The Federal Court stated that "the existence of consultation provisions within a modern day treaty, as in this case, will require that the Court first and foremost look to the text of those provisions to assess where a duty is owed, and the scope of that duty, i.e. the content of meaningful consultation appropriate to the circumstances. If necessary to interpret the text, or if the text is silent in some area, the Court can apply the common law principles concerning the duty to consult as they will, in either event, be underlying by way of the honour of the Crown. Thus, in that context, a treaty may perhaps never 'exhaustively' define the Crown's duty to consult. However, in each case the extent, if any, to which reference must be made to the underlying principles concerning the duty to consult, will be fact driven. In this case, while s 2.11.1(b) of the Agreement states that it exhaustively sets out the rights in Canada of Inuit that are recognized and affirmed by s 35 of the Constitution Act, 1982, I do not understand this to preclude reference to the common law constitutional duty to consult if necessary to interpret the text or where there is a gap therein" - See paragraphs 124 to 139.

Indians, Inuit and Métis - Topic 3.5

General - Duty owed to Inuit by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - The Federal Court stated that the starting point for an analysis of the content of the duty to consult in this case was the text of the Labrador Inuit Land Claims Agreement, between the Inuit of Labrador, Her Majesty the Queen in right of Newfoundland and Labrador, and Her Majesty the Queen in right of Canada (January 22, 2005) - The court concluded that "the scope of the duty to consult in this case is, in the first instance, determined by the text of the Agreement. To the extent that it may have application, the content of the common law duty to consult owed in the mid-range of the spectrum includes adequate notice of the matter to be decided; a reasonable period of time to permit the party being consulted to prepare its views on the issues and an opportunity to present those views to the decision-makers; consultation in good faith, with an open mind and with the intention of substantially addressing the concerns of the party being consulted as they are raised through a meaningful process of consultation ...; direct engagement with the party being consulted, including the provision of information, soliciting, listening carefully to and seriously considering their concerns; taking the expressed concerns into account when making the decision; and attempting to minimize the adverse impacts ... As this matter falls above the mid-range, in my view the duty would also include a requirement of responsiveness on the part of the Crown ... Put otherwise, the duty includes a requirement to demonstrate that the views of the party being consulted were taken into consideration ... and to provide a response to those concerns ... with a view to reasonable accommodation ... There may also be a requirement to accommodate, to the extent possible, by taking steps to avoid or mitigate significant adverse effects or irreparable harm" - See paragraphs 157 to 179.

Indians, Inuit and Métis - Topic 3.5

General - Duty owed to Inuit by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans - The Federal Court did not accept the applicant's argument that the consultation obligations in the Labrador Inuit Land Claims Agreement, between the Inuit of Labrador, Her Majesty the Queen in right of Newfoundland and Labrador, and Her Majesty the Queen in right of Canada (January 22, 2005) could not be met, at least in part, by the Joint Review Panel (JRP) process - The Agreement explicitly incorporated the JRP process into the consultation process where Canada referred a project or undertaking to a review panel under the Canadian Environmental Assessment Act - Further, jurisprudence confirmed that the duty to consult could be satisfied through the consultation that takes place within the regulatory process - Similarly, the court saw no error in the use of the five-phase Consultation Framework or the Regulatory Phase Protocol - The Crown's consultation obligations could be met, at least in part, through the JRP process - See paragraphs 193 to 202.

Indians, Inuit and Métis - Topic 3.5

General - Duty owed to Inuit by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Nunatsiavut Government applied for judicial review of the decision of the Minister of Fisheries and Oceans to issue an Authorization to Nalcor Energy - Pursuant to ss. 32(2)(c) and 35(2)(b) of the Fisheries Act, the Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydroelectric generation facility proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicant claimed that it was not properly consulted and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by Canada, as represented by the Department of Fisheries and Oceans (DFO) - The Federal Court dismissed the application - In making the decision to issue the Authorization, Canada adequately consulted and accommodated the applicant in accordance with the terms of the Labrador Inuit Land Claims Agreement, between The Inuit of Labrador, Her Majesty The Queen in Right of Newfoundland and Labrador, and Her Majesty The Queen in Right of Canada (January 22, 2005) - The communications between DFO and the applicant together with the Regulatory Phase Protocol process served to satisfy the consultation requirements of s 11.6.2 of the Agreement - The court would have reached the same conclusion applying the content of the common law duty to consult above the mid-range but lower than the high end of the spectrum - The duty to consult was satisfied, the applicant was adequately accommodated, and the decision to issue the Authorization was reasonable - See paragraphs 203 to 345.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See first Indians, Inuit and Métis - Topic 3.5 ].

Indians, Inuit and Métis - Topic 5522

Lands - Land claim agreements - Interpretation - [See first Indians, Inuit and Métis - Topic 3.5 ].

Practice - Topic 7029

Costs - Party and party costs - Successful party - Exceptions - Novel or important point - [See second Indians, Inuit and Métis - Topic 3.1 ].

Cases Noticed:

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, consd. [para. 94].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, consd. [para. 94].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2013), 431 F.T.R. 219; 2013 FC 418, consd. [para. 96].

Katlodeeche First Nation v. Canada (Attorney General) et al. (2013), 432 F.T.R. 77; 2013 FC 458, refd to. [para. 96].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) (2013), 566 A.R. 259; 597 W.A.C. 259; 2013 ABCA 443, leave to appeal denied (2014), 474 N.R. 395 (S.C.C.), consd. [para. 96].

Malcolm v. Canada (Minister of Fisheries and Oceans) et al. (2013), 430 F.T.R. 238; 2013 FC 363, refd to. [para. 97].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1992] 3 F.C. 42; 53 F.T.R. 300 (T.D.), refd to. [para. 97].

Alberta Wilderness Association et al. v. Express Pipelines Ltd. et al. (1996), 201 N.R. 336; 137 D.L.R.(4th) 177 (F.C.A.), refd to. [para. 97].

Alberta Wilderness Association et al. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425; 165 F.T.R. 1 (T.D.), refd to. [para. 97].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2012), 406 F.T.R. 229; 2012 FC 297, consd. [para. 98].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 98].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 99].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2014), 464 N.R. 200; 2014 FCA 189, leave to appeal refused [2014] SCCA No. 466, consd. [para. 99].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2007), 315 F.T.R. 178; 2007 FC 763, consd. [para. 101].

Eikland et al. v. Yukon (Minister of Energy, Mines and Resources) et al., [2013] Yukon Cases Uned. 66; 2013 YKSC 66, consd. [para. 108].

Willson et al. v. British Columbia et al. (2011), 306 B.C.A.C. 212; 516 W.A.C. 212; 2011 BCCA 247, leave to appeal refused (2012), 433 N.R. 391 (S.C.C.), consd. [para. 110].

Dene Tha' First Nation v. British Columbia (Minister of Energy and Mines) et al., [2013] B.C.T.C. Uned. 977; 2013 BCSC 977, consd. [para. 111].

Wii'litswx v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. 759; 2008 BCSC 1139, refd to. [para. 111].

Adam et al. v. Canada (Minister of the Environment) et al. (2014), 470 F.T.R. 24; 2014 FC 1185, refd to. [para. 118].

Da'naxda'xw/Awaetlala First Nation et al. v. British Columbia Hydro and Power Authority et al., [2015] B.C.T.C. Uned. 16; 2015 BCSC 16, refd to. [para. 118].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 120].

Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 121].

Makivik v Quebec, 2014 QCCA 1455, consd. [para. 137].

Yellowknives Dene First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development) et al. (2013), 442 F.T.R. 67; 2013 FC 1118, refd to. [para. 145].

Quebec (Attorney General) v. Moses et al., [2010] 1 S.C.R. 557; 401 N.R. 246; 2010 SCC 17, refd to. [para. 147].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, consd. [para. 151].

Native Council of Nova Scotia v. Canada (Attorney General) (2007), 306 F.T.R. 294; 2007 FC 45, affd. (2008), 377 N.R. 247; 2008 FCA 113, refd to. [para. 151].

Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General) et al. (2012), 409 F.T.R. 82; 2012 FC 517, refd to. [para. 151].

Squamish Nation et al. v. British Columbia, [2014] B.C.T.C. Uned. 991; 2014 BCSC 991, consd. [para. 165].

Da'naxda'xw/Awaetlala First Nation et al. v. British Columbia (Minister of Environment), [2011] B.C.T.C. Uned. 620; 2011 BCSC 620, refd to. [para. 178].

Moulton Contracting Ltd. v. British Columbia et al. (2013), 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 181].

Cheslatta Carrier Nation v British Columbia (Environmental Assessment Act, Project Assessment Director) (1998), 53 B.C.L.R.(3d) 1 (S.C.), refd to. [para. 181].

Aba-Alkhail et al. v. University of Ottawa et al. (2013), 311 O.A.C. 89; 2013 ONCA 633, refd to. [para. 181].

Papaschase Indian Band No. 136 v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 2004 ABQB 655, refd to. [para. 181].

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al. (2009), 481 A.R. 270; 2009 ABQB 576, refd to. [para. 181].

Teletech Canada Inc. v. Minister of National Revenue (2013), 433 F.T.R. 192; 2013 FC 572, refd to. [para. 181].

Mahmood v. Canada et al. (1998), 154 F.T.R. 102 (T.D.), refd to. [para. 181].

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2004), 251 F.T.R. 155; 2004 FC 658, refd to. [para. 181].

Servier Canada Inc. et al. v. Canada (Minister of Health) et al., [2007] F.T.R. Uned. 100; 2007 FC 196, refd to. [para. 181].

NunatuKavut Community Council Inc. v. Newfoundland and Labrador Hydro-Electric Corp. (Nalcor Energy) et al. (2011), 307 Nfld. & P.E.I.R. 306; 954 A.P.R. 306; 2011 NLTD(G) 44, consd. [para. 187].

Nunatsiavut Government v. Newfoundland and Labrador (Minister of Environment and Conservation) (2015), 360 Nfld. & P.E.I.R. 21; 1118 A.P.R. 21; 2015 NLTD(G) 1, consd. [para. 188].

Counsel:

Randall J. Earle and Raman Balakrishnan, for the applicant, Nunatsiavut Government;

Reinhold M. Endres and James Gunvaldsen-Klaassen, for the respondent, Attorney General of Canada (Department of Fisheries and Oceans);

Rolf Pritchard and Justin Melor, for the second respondent, Her Majesty in Right of Newfoundland and Labrador as represented by the Minister of the Department of Environment and Conservation;

Maureen Killoran and Thomas Gelbman, for the third respondent, Nalcor Energy.

Solicitors of Record:

O'Dea, Earle Law Offices, St. John's, Newfoundland and Labrador, for the applicant, Nunatsiavut Government;

William F. Pentney, Deputy Attorney General of Canada, St. John's, Newfoundland and Labrador, for the respondent, Attorney General of Canada (Department of Fisheries and Oceans);

Department of Justice, St. John's, Newfoundland and Labrador, for the second respondent, Her Majesty in Right of Newfoundland and Labrador as represented by the Minister of the Department of Environment and Conservation;

Osler, Hoskin & Harcourt LLP, Calgary, Alberta, for the third respondent, Nalcor Energy.

This application was heard on October 20 and 21, 2014, at St. John's, Newfoundland and Labrador, before Strickland, J., of the Federal Court, who delivered the following decision on April 17, 2015.