Pimicikamak et al. v. Manitoba et al.,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2014 MBQB 143
• Court: Court of Queen's Bench of Manitoba (Canada)
• Date: 08 July 2014
• Citation: (2014), 308 Man.R.(2d) 49 (QB),2014 MBQB 143,[2014] MJ No 200 (QL),308 Man R (2d) 49,308 Man.R.(2d) 49,308 ManR(2d) 49,[2014] M.J. No 200 (QL),(2014), 308 ManR(2d) 49 (QB)

Pimicikamak v. Man. (2014), 308 Man.R.(2d) 49 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JL.033

Pimicikamak and The Cross Lake Band of Indians (applicants) v. Her Majesty The Queen in Right of Manitoba and The Manitoba Hydro-Electric Board (respondents)

(CI 11-01-70566; 2014 MBQB 143)

Indexed As: Pimicikamak et al. v. Manitoba et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

July 8, 2014.

Summary:

Pimicikamak and The Cross Lake Band of Indians applied for judicial review of Manitoba's decision to enter into the Cross Lake Community Settlement Agreement with the Incorporated Community of Cross Lake. The main issue was whether Manitoba fulfilled its duty of consultation. The applicants sought to file evidence in the form of 11 additional affidavits not initially before the decision maker(s). Manitoba and Manitoba Hydro-Electric Board (the respondents) brought a preliminary motion, seeking an order striking out the affidavits in their entirety. In the alternative, the respondents sought to strike out certain portions of the affidavits as improper, objectionable and irrelevant.

The Manitoba Court of Queen's Bench permitted the parties to bring the preliminary motion prior to and separately from the judicial review hearing on the merits ("a somewhat exceptional manner of proceeding" in Manitoba). The Court ordered that the entirety of the 11 impugned affidavits be struck. "That evidence was not initially part of the consultation record and was not now admissible pursuant to any of the otherwise exceptional justifications that would permit such extrinsic evidence on a judicial review." The current consultation record provided an adequate and fair basis for determining whether Manitoba: (a) correctly assessed the extent of its duty to consult, and (b) satisfied, on a standard of reasonableness, its particular duty to consult. Several of the identified portions of the impugned affidavits would have nonetheless been struck as they failed to comply with the Queen's Bench Rules.

Administrative Law - Topic 3217

Judicial review - General - Evidence - Sufficiency of - [See third Administrative Law - Topic 3345.1 ].

Administrative Law - Topic 3218

Judicial review - General - Evidentiary rulings - [See first Administrative Law - Topic 3345.1 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - [See third Administrative Law - Topic 3345.1 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - This preliminary motion, brought prior to a judicial review, required the court to address the following question: to what extent, if any, should the "record" on the application for judicial review involving Crown-Aboriginal consultation, be supplemented (and changed) with additional or "extrinsic" evidence not otherwise before the original decision maker(s)? - The Manitoba Court of Queen's Bench stated that "While it is acknowledged that preliminary motions such as this one in relation to applications for judicial review are generally discouraged, given that [the applicants] ... challenge the adequacy of the efforts to satisfy the duty to consult (by attempting to file evidence in the form of 11 additional affidavits not initially before the decision maker(s)), it was my view that the fair and expeditious determination of the issues on the eventual judicial review, require an earlier clarification of what is the valid record on which the review is to be conducted." - In the end result, the Court determined that "[t]he review as to whether Manitoba has met its duty to consult will take place on the existing consultation record and that review will be conducted on a standard of reasonableness." - See paragraphs 1 to 3, 65.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The Manitoba Court of Queen's Bench reviewed the general rule and exceptions governing the relevant evidentiary foundation and record on a judicial review of Crown-Aboriginal consultations - "In cases of judicial review in which a breach of the duty to consult and accommodate (as between the Crown and an Aboriginal community) is alleged, extrinsic evidence establishing the elements of the duty has also been determined to be a potential exception to the general rule that the review must take place on the basis of the record before the decision maker(s). In addition to establishing the existence of the duty, such evidence - not before the original decision maker(s) - has also been admitted in order to permit the court to determine the scope, content and ultimately, the fulfillment (or not) of the duty to consult and accommodate" - The issue on this particular preliminary evidentiary motion leading up to the judicial review, was whether the applicants could successfully invoke the exceptions and justifications - In the end result, the Court struck the impugned affidavits in their entirety - See paragraphs 57 to 61.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The principle issue on this preliminary motion was whether the impugned affidavits filed by the applicants (Indian Bands) were relevant and otherwise admissible in a judicial review as to whether the respondent (Manitoba) fulfilled its duty to consult - The Manitoba Court of Queen's Bench struck the impugned affidavits in their entirety - "[T]he impugned evidence cannot be justified and admitted in the particular circumstances of this case to fill in any supposed gaps in the consultation record. Neither are the affidavits admissible on the basis of a need to demonstrate procedural unfairness, the possible proof of which has not been established on this motion ... The affidavits can similarly not be justified and admitted in this case to establish the scope and conduct of the duty to consult and accommodate owed by Manitoba. ... With the scope and content of Manitoba's duty sitting perhaps at the high end of the spectrum (by Manitoba's own admission), the applicants cannot claim it is necessary to consider extrinsic evidence for a purpose now rendered somewhat moot by Manitoba's concession. ... [T]he existing record is both fair and adequate for reviewing how Manitoba 'scoped' and assessed the level of its duty, as well as for reviewing whether it satisfied that duty." - See paragraphs 62 to 66.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - In the context of requested case management, the court permitted the parties to bring this preliminary motion prior to the judicial review hearing - The principle issue on the motion was whether the impugned affidavits filed by the applicants (Indian Bands) were relevant and otherwise admissible in a judicial review as to whether the respondent (Manitoba) fulfilled its duty to consult - The Manitoba Court of Queen's Bench struck the affidavits in their entirety, having determined that the extrinsic evidence was not admissible pursuant to any of the otherwise exceptional justifications that would permit such evidence on a judicial review - Portions of those affidavits would have nonetheless been struck as they failed to comply with the Queen's Bench Rules - "[C]ourts must still distinguish, in my view, between the technical approach impugned by the Supreme Court of Canada in Tsilhqot'in Nation [v. British Columbia] ... and the still time-honoured approach grounded in principle, that properly requires and ensures a more or less substantiated and reliable evidentiary foundation. The creation or admission of that substantiated and reliable evidentiary foundation is presumed to be subject to a rigorous process and set of reference points that are identifiable, predictable and based in legal principle." - See paragraphs 91 and 92.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See first Administrative Law - Topic 3345.1 ].

Cases Noticed:

Sowemimo v. College of Physicians and Surgeons (Man.) (2013), 287 Man.R.(2d) 270; 2013 MBQB 42, refd to. [para. 2].

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. 22].

Yellowknives Dene First Nation et al. v. Canada (Attorney General) et al. (2010), 377 F.T.R. 267; 2010 FC 1139, refd to. [para. 24].

Liidlii Kue First Nation v. Canada (Attorney General) et al., [2000] 4 C.N.L.R. 123; 187 F.T.R. 161 (T.D.), refd to. [para. 24].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) (2012), 543 A.R. 198; 2012 ABQB 579, refd to. [para. 24].

Enge v. Mandeville et al., [2013] Northwest Terr. Cases Uned. 33; [2013] 8 W.W.R. 562; 2013 NWTSC 33, refd to. [para. 24].

Enge v. Northwest Territories (Department of Environment and Natural Resources, North Slave Region) - see Enge v. Mandeville et al.

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. 42].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

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. 47].

Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. D44; 173 A.C.W.S.(3d) 330; 2008 BCSC 1505, refd to. [para. 49].

Hupacasath First Nation v. British Columbia (Minister of Forests) - see Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al.

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2014), 449 F.T.R. 28; 2014 FC 197, refd to. [para. 49].

AOV Adults Only Video Ltd. v. Labour Board (Man.) et al. (2003), 177 Man.R.(2d) 56; 304 W.A.C. 56; 2003 MBCA 81, refd to. [para. 52].

Wilson v. United Steelworkers of America, Local 5442 et al. (2003), 178 Man.R.(2d) 282; 2003 MBQB 224, refd to. [para. 52].

Zeliony v. Red River College (2007), 222 Man.R.(2d) 156; 2007 MBQB 308, refd to. [para. 52].

Board of Education of Winnipeg School Division No. 1 v. Winnipeg Teachers' Association of the Manitoba Teachers' Society (2007), 211 Man.R.(2d) 138; 2007 MBQB 23, refd to. [para. 52].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.), refd to. [para. 56].

Tsuu T'ina Nation et al. v. Alberta (Minister of Environment) et al. (2008), 453 A.R. 114; 2008 ABQB 547, refd to. [para. 58].

Chartrand v. North Island Central Coast Forest District (District Manager) et al., [2013] B.C.T.C. Uned. 1068; 52 B.C.L.R.(5th) 381; 2013 BCSC 1068, refd to. [para. 58].

Kwakiutl First Nation v. North Island Central Coast Forest District - see Chartrand v. North Island Central Coast Forest District (District Manager) et al.

Fort McKay First Nation v. Alberta (Minister of Environment and Sustainable Resource Development) et al., [2014] 2 C.N.L.R. 140; 581 A.R. 124; 2014 ABQB 32, refd to. [para. 60].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) (2013), 566 A.R. 259; 597 W.A.C. 259; 88 Alta. L.R.(5th) 179; 2013 ABCA 443, refd to. [para. 60].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666; 1999 BCCA 470, refd to. [para. 76].

William v. British Columbia et al. (2014), 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 92].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Counsel:

N. Kate Kempton and Stephanie Kearns, for the applicants;

Gordon E. Hannon and Sarah Bahir, for Her Majesty The Queen in Right of Manitoba;

Robert J. Adkins and Maria L. Grande, for Manitoba Hydro-Electric Board;

Jacqueline G. Collins, for Intervenor, Incorporated Community of Crosslake.

This motion was heard before Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 8, 2014.