Nunatukavut Community Council Inc. et al. v. Canada (Attorney General) et al., [2015] F.T.R. TBEd. AU.041

• Judge: Stickland, J.
• Court: Federal Court (Canada)
• Case Date: August 18, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.041;2015 FC 981

Nunatukavut Com. Council v. Can. (A.G.), [2015] F.T.R. TBEd. AU.041

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. AU.041

Nunatukavut Community Council Inc. and Todd Russell, on their own behalves and on behalf of the Members of Nunatukavut Community Council Inc. (applicants) v. The Attorney General of Canada and Nalcor Energy (respondents)

(T-1339-13; 2015 FC 981)

Indexed As: Nunatukavut Community Council Inc. et al. v. Canada (Attorney General) et al.

Federal Court

Stickland, J.

August 18, 2015.

Summary:

The NunatuKavut Community Council Inc. (NCC) described itself as the self-governing organization representing the interests of the Inuit descendants (sometimes referred to as Inuit-Metis) of central and southern Labrador. The NCC and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy. The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador. The applicants claimed that they were not adequately consulted or accommodated, that the Minister breached her duty of procedural fairness, and that her decision to issue the Authorization was incorrect or unreasonable and an improper use or an abuse of her discretion.

The Federal Court dismissed the application. The duty to consult was met and the Minister's decision to issue the Authorization was reasonable.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See first Indians, Inuit and Métis - Topic 3.5].

Indians, Inuit and Mེtis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians, Inuit or Metis - The NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court discussed the standard of review - The court stated that "... the Crown must correctly identify the legal parameters of the content of the duty to consult in order to also properly identify what will comprise adequate consultation. To proceed without having done so would be an error of law. However, if those parameters are correctly identified, then the adequacy of the subsequent process of consultation employed would remain a question of reasonableness" - See paragraphs 79 to 94.

Indians, Inuit and Mེtis - Topic 3.3

General - Duty owed to Metis by Crown (incl. fiduciary and consultation duties and honour of the Crown) - [See all Indians, Inuit and Métis - Topic 3.5 ].

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court rejected the NCC's argument regarding the doctrine of legitimate expectations and phase 5 funding - The record contained no evidence that the Minister represented in a clear, unambiguous and unqualified manner, or in any manner, that funding for Phase 5 would be provided - Nor did the NCC provide evidence that there was a practice of providing Phase 5 funding that would give rise to such an expectation - See paragraphs 189 to 193.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court agreed with the NCC's general premise that the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] could be used to inform the interpretation of domestic law - However, the UNDRIP could not be used to displace Canadian jurisprudence or laws regarding the duty to consult - Further, the NCC did not identify an issue of statutory interpretation - Rather, it submitted that UNDRIP applied not only to statutory interpretation but to interpreting Canada's constitutional obligations to Aboriginal peoples - No authority for that proposition was provided - Nor did the NCC provide any analysis or application of its position in the context of its submissions - The NCC had not established that UNDRIP had application to the issues before the court - See paragraphs 103 to 106.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court considered the content of the duty to consult - The court stated that considering both the strength of the NCC's claim and the seriousness of the potentially adverse effects on the right or title claimed, it would place the duty to consult between the low and middle range of the spectrum - See paragraphs 118 to 119.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court stated that "To the extent that the NCC questions the content or adequacy of the consultation with respect to the issuance of the Authorization, it is entitled to look at the prior consultation for that purpose, but not as an attempt to impugn the validity of those prior decisions. ... it is my view that the totality of the consultation between DFO, Nalcor and the NCC from initiation and including Phases 1 to 4 must also be considered when considering the adequacy of consultation and accommodation pertaining to the Phase 5 decision to issue the Authorization, including any concerns arising from an alleged lack of funding and resources" - See paragraphs 139 to 150.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court considered the issue of funding with respect to Aboriginal traditional knowledge and land and resource use - The court stated that "the NCC has not provided any evidence as to what level of funding, in addition to that which it did receive, would have been adequate for purposes of gathering Aboriginal Traditional Knowledge and assessing its current land and resource use. I would note that the FRC [Funding Review Committee] recommended the allocation of funding amounts that it deemed reasonable in light of the information provided in the funding applications, follow-up responses and funds received by applicants from other sources. Further, that the level of funding that was provided by the Agency to the NCC does not appear to be out of line with the funding provided to other Aboriginal groups ... Ultimately, this Court is simply not in a position to make an assessment as to the adequacy of funding and, in the absence of evidence to the contrary, must assume that the Agency had not only the authority to allocate funding, but also appropriately exercised its discretion to determine appropriate funding levels in the prevailing circumstances" - See paragraphs 151 to 166.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The NCC submitted that a complete denial of funding in Phase 5 precluded fair and meaningful consultation because the Minister failed to address the uncertainties regarding the extent and location of current land and resource use by the NCC and, without additional funding at Phase 5, the Project's impact on NCC's Aboriginal rights and title were not properly addressed - The Federal Court rejected the argument - The court stated that "In summary, the NCC has not identified how much additional funding it would have required at Phase 5 to address Aboriginal Traditional Knowledge and current land and resource use. However, it had been provided with funding that was or could have been used for that purpose in Phases 1-4. Further, the JRP process was the primary mechanism by which Canada was to effect consultation with Aboriginal groups. Therefore, it was incumbent upon the NCC to fully utilize that process. If, at Phase 4, it remained unsatisfied as to the lack of information concerning Aboriginal Traditional Knowledge and current land and resource use it could, at that phase, made some effort to further factually address its concerns; specifically, to address, at least at a preliminary level, the uncertainty identified by the JRP. However, no substantive submission was made in that regard. The NCC also does not explain how the alleged gaps in such knowledge and information affected the Phase 5 consultation, which is concerned, in particular, with the FHC and EEM Plans" - See paragraphs 168 to 188.

Indians, Inuit and Mེtis - Topic 3.5

General - Duty owed to Inuit by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans (DFO) to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The NCC submitted that the lack of Phase 5 funding prevented it from adequately reviewing and commenting on what it described as the highly technical FHC and EEM Plans - The Federal Court stated that "By not making at least some effort to assess the FHC and EEM Plans, either by way of the offered meetings with Nalcor or DFO or by utilizing its own resources to instruct and retain a consultant to provide preliminary advice, the NCC has failed to provide any evidence both that there was a failure to adequately consult and a resultant adverse impact on its rights and title" - See paragraphs 194 to 214.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans (DFO) to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - NCC submitted that there was an absence of good faith and meaningful consultation at Phase 5 as demonstrated by an internal DFO memorandum and the delayed response of DFO to the NCC's comments on the JRP Report and the Regulatory Phase Protocol - The referenced memorandum stated that comments received in response to the proposed Regulatory Phase Protocol "predictably" indicated that some Aboriginal groups still had concerns about the EA that they felt had not been addressed and that "close the loop" letters were being prepared in response - The Federal Court stated that when seen in the context of the document in whole, this reference was not indicative of bad faith or condoning perfunctory responses to Aboriginal concerns - Further, while Canada could have acted with greater expediency in addressing some of the NCC's concerns, the court was not convinced the delay in response indicated a lack of good faith or that Canada did not adequately or meaningfully consult with the NCC during Phase 5 - See paragraphs 215 to 229.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The NCC submitted that a lack of good faith and meaningful consultation was demonstrated by Canada's imposition of the Regulatory Phase Protocol on it, without incorporating the NCC's feedback, and that it received the final form of the protocol midway through the process, after much of Nalcor's work on the FHC and EEM Plans was complete - The Federal Court held that this submission lacked merit - See paragraphs 230 to 231.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The NCC submitted that while the Minister was not bound by the JRP Recommendations, given the importance that Canada placed on the JRP process in fulfilling its duty to consult obligations, they should not be taken lightly - Here the Minister departed from the Recommendations without explicitly acknowledging that she was doing so, without providing reasons for doing so and in a manner that created an elevated risk of methylmercury contamination - The decision to issue the Authorization was therefore unreasonable - The Federal Court stated that "As to the compliance with Recommendations 6.7 and 4.5 of the JRP Report, Canada was satisfied that Nalcor's modeling and data gathering served to provide a sufficient predictive basis against which future monitoring could be compared when combined with the further baseline sampling and monitoring required by the EEM Plan. That is, Canada was satisfied that the uncertainty and risk pertaining to methylmercury bioaccumulation could be managed by way of the monitoring programs. Accordingly, the Minister's decision to issue the Authorization on that basis, and without requiring full clearing, was informed and reasonable and does not demonstrate a failure of accommodation" - See paragraphs 271 to 285 and 315.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans (DFO) to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The NCC submitted that, with respect to the FHC Plan, the Minister ignored science that was available to her regarding the lack of effectiveness of DFO's fish compensation programs in actually reaching no net loss of fish - Therefore, she knowingly adopted a program that was unlikely to be effective, rendering her decision unreasonable - The Federal Court stated that "In this case, the JRP process canvassed the issue of the effectiveness of fish habitat compensation programs, identified the uncertainties arising and made recommendations which were implemented by the FHC Plan and the conditions of the Authorization. There is no doubt that the duty to consult can be satisfied through consultation that takes place within the regulatory process ... and I am satisfied that the duty to consult was met, that the Authorization reflects a reasonable accommodation and that the Minister's decision to issue it was informed and reasonable" - See paragraphs 286 to 306.

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 NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans (DFO) to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The applicants claimed that they were not adequately consulted or accommodated - The Federal Court stated that "the process set out in the Regulatory Phase Protocol was adequate to meet Canada's duty to consult, was reasonable and was followed by DFO. While DFO's response may have been less than perfect, perfection is not required so long as reasonable efforts have been made to consult and accommodate and if the result is within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law, there will be no basis to intervene" - The Minister's decision to issue the Authorization was reasonable - See paragraph 312.

Pollution Control - Topic 1002

Licensing or approval - General - Certificate of authorization (incl. environmental assessment certificate) - [See Pollution Control - Topic 1013 ].

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review or appeals - The NunatuKavut Community Council Inc. (NCC) and its president applied for judicial review of the decision of the Minister of the Department of Fisheries and Oceans (DFO) to issue an Authorization to Nalcor Energy - The Authorization permitted impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador - The Federal Court stated that "... the NCC's allegation that the Minister ignored available science and knowingly adopted a fish habitat compensation plan that was unlikely to be effective, rendering her decision unreasonable, is not sustainable. First, because the JRP dealt with the issue, recognized the uncertainty and made recommendations in that regard which are reflected in the Authorization. Secondly, because the NCC failed to raise this as a concern at any point in the consultation process. Raising such an issue for the first time at judicial review of the final phase of a lengthy consultation process and asking that the Court reweigh the scientific evidence is not the role of the Court nor an appropriate manner in which to deal with the issue" - See paragraph 316.

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See second Indians, Inuit and Métis - Topic 3.5 ].

Cases Noticed:

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, refd to. [para. 29].

Nalcor Energy v. Nunatukavut Community Council Inc. et al. (2012), 330 Nfld. & P.E.I.R. 233; 1026 A.P.R. 233; 2012 NLTD(G) 175, refd to. [para. 30].

Nalcor Energy v. NunatuKavut Community Council Inc. et al. (2014), 358 Nfld. & P.E.I.R. 123; 1113 A.P.R. 123; 2014 NLCA 46, refd to. [para. 30].

Grand Riverkeeper, Labrador Inc. et al. v. Canada (Attorney General) et al. (2012), 422 F.T.R. 299; 2012 FC 1520, refd to. [para. 45].

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2008), 379 N.R. 297; 2008 FCA 212, refd to. [para. 72].

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, refd to. [para. 72].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 73].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2013), 431 F.T.R. 219; 2013 FC 418, refd to. [para. 74].

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, refd to. [para. 74].

Katlodeeche First Nation v. Canada (Attorney General) et al. (2013), 432 F.T.R. 77; 2013 FC 458, refd to. [para. 74].

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, refd to. [para. 74].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2004), 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 76].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2007), 315 F.T.R. 178; 2007 FC 763, refd to. [para. 76].

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, refd to. [para. 76].

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. 76].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al. (2006), 345 N.R. 374; 2006 FCA 31, refd to. [para. 77].

Malcolm v. Canada (Minister of Fisheries and Oceans) et al. (2013), 430 F.T.R. 238; 2013 FC 363, refd to. [para. 77].

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. 78].

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. 78].

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. 78].

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. 79].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 79].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2014), 464 N.R. 200; 2014 FCA 189, refd to. [para. 79].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2012), 406 F.T.R. 229; 2012 FC 297, refd to. [para. 81].

Nunatsiavut Government v. Canada (Attorney General) et al., [2015] F.T.R. TBEd. MY.033; 2015 FC 492, refd to. [para. 85].

Eikland et al. v. Yukon (Minister of Energy, Mines and Resources) et al., [2013] Yukon Cases Uned. 66; 2013 YKSC 66, refd to. [para. 87].

West Moberly First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum Resources) - see Willson et al. v. British Columbia et al.

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 denied (2012), 433 N.R. 391 (S.C.C.), refd to. [para. 88].

Dene Tha' First Nation v. British Columbia (Minister of Energy and Mines) et al., [2013] B.C.T.C. Uned. 977; 2013 BCSC 977, refd to. [para. 88].

Adam et al. v. Canada (Minister of the Environment) et al. (2014), 470 F.T.R. 24; 2014 FC 1185, refd to. [para. 88].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 2 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 93].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 94].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 2014 FCA 85, refd to. [para. 94].

Malcolm v. Canada (Minister of Fisheries and Oceans) et al. (2014), 460 N.R. 357; 2014 FCA 130, refd to. [para. 94].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 96].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to [para. 96].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2012), 411 F.T.R. 14; 2012 FC 445, affd. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 96].

Simon et al. v. Canada (Attorney General) (2013), 442 F.T.R. 33; 2013 FC 1117, refd to. [para. 96].

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. 98].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 99].

Hupacasath First Nation v. Canada (Minister of Foreign Affairs) et al. (2013), 438 F.T.R. 210; 2013 FC 900, refd to. [para. 99].

Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al. (2009), 345 F.T.R. 119; 2009 FC 484, refd to. [para. 100].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 1999 BCCA 470, refd to. [para. 100].

Nalcor Energy v. Nunatukavut Community Council Inc. et al. (2012), 330 Nfld. & P.E.I.R. 233; 1026 A.P.R. 233; 2012 NLTD(G) 175, refd to. [para. 100].

Cheslatta Carrier Nation v. British Columbia (1998), 53 B.C.L.R.(3d) 1 (S.C.), refd to. [para. 100].

Manuel et al. v. British Columbia (Minister of Environment) et al., [2011] B.C.T.C. Uned. 388; 21 B.C.L.R.(5th) 81; 2011 BCSC 388, refd to. [para. 100].

Upper Nicola Indian Band v. British Columbia (Minister of Environment - see Manuel et al. v. British Columbia (Minister of Environment) et al.

Labrador Metis Nation et al. v. Newfoundland and Labrador (Minister of Transportation and Works) et al. (2006), 258 Nfld. & P.E.I.R. 257; 779 A.P.R. 257; 2006 NLTD 119, affd. (2007), 272 Nfld. & P.E.I.R. 178; 830 A.P.R. 178; 2007 NLCA 75, leave to appeal denied (2008), 387 N.R. 387 (S.C.C.) refd to. [para. 110].

Long Plain First Nation et al. v. Canada (Attorney General) et al. (2012), 424 F.T.R. 52; 2012 FC 1474, refd to. [para. 120].

Platinex Inc. v. Kitchenuhmaykoosib Inninuwag First Nation, 2007 CanLii 20790, refd to. [para. 123].

Adams Lake Indian Band v. British Columbia (Minister of Forests, Lands and Natural Resource Operations) et al., [2013] B.C.T.C. Uned. 877; 2013 BCSC 877, refd to. [para. 131].

Ktunaxa Nation Council et al. v. British Columbia (Minister of Forests, Lands and Natural Resource Operations) et al., [2014] B.C.T.C. Uned. 568; 2014 BCSC 568, refd to. [para. 138].

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, refd to. [para. 149].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 189].

Electric Power and Telephone Act (P.E.I.), Re (1994), 116 Nfld. & P.E.I.R. 181; 363 A.P.R. 181; 109 D.L.R.(4th) 300 (P.E.I.C.A.), refd to. [para. 241].

Counsel:

Derek Simon and Jason Cooke, for the applicants;

Reinhold M. Endres, Q.C. and James Klaassen, for the respondent, The Attorney General of Canada;

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

Solicitors of Record:

Burchells, LLP, Halifax, Nova Scotia, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent, The Attorney General of Canada;

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

This application was heard on February 2, 3 and 4, 2015, at Halifax, N.S., before Strickland, J., of the Federal Court, who delivered the following decision on August 18, 2015.