Nunatsiavut v. Canada (Attorney General)

Nunatsiavut v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-04-17
Neutral citation
2015 FC 492
File numbers
T-1347-13
Decision Content
Date: 20150417
Docket: T-1347-13
Citation: 2015 FC 492
Ottawa, Ontario, April 17, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
NUNATSIAVUT GOVERNMENT
Applicant
and
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
I. The Project 4
II. Factual Background. 5
Phase 1: Initial Engagement and Consultation on the Draft JRP Agreement, the Appointment of the JRP Members and the EIS Guidelines. 12
Phase 2: JRP Process Leading to Hearings. 15
Phase 3: Hearings and Preparation of the JRP Report 18
Phase 4: Consultation on the JRP Report 20
Phase 5: Regulatory Permitting. 29
III. Issues. 42
Issue 1: What is the Standard of Review?. 43
Applicant’s Position. 43
Canada’s Position. 44
Nalcor’s Position. 44
Analysis.. 45
Issue 2: What was the Content of the Duty to Consult and Accommodate, More Specifically: 57
A.......... Does the Agreement Exhaustively Define the Crown’s Duty to Consult? 57
Applicant’s Submissions. 57
Canada’s Submissions. 58
Nalcor’s Submissions. 58
Analysis. 59
B........... What was the Scope and Extent of the Duty to Consult and Accommodate in this Case? 66
Applicant’s Position. 66
Canada’s Position. 68
Nalcor’s Position. 69
Analysis. 71
(i) The Agreement 71
(ii) Scope of Duty to Consult at Common Law.. 76
Issue 3: Was the Applicant Adequately Consulted and Accommodated?. 90
A.......... Preliminary Issues. 90
(i) Collateral Attack. 90
(ii) Delegation of Authority. 96
B........... Was the Applicant Adequately Consulted and Accommodated?. 99
Applicant’s Position. 99
Canada’s Position. 101
Nalcor’s Position. 105
Analysis. 109
(a) Discrete Consultation Issues. 109
i. Adequacy of Consultation in Phases 1-3. 109
ii. Aboriginal Consultation Report 111
iii. Section 11.6.2 Procedure. 115
iv. May 1, 2008 Letter 117
v. Failure to Identify the Applicant in Canada’s Response. 118
(b) Adequacy of Consultation prior to Issuance of Authorization. 118
(c) Accommodation. 124
vi. High Level Management Structure. 127
vii. Comprehensive Downstream Assessment 128
viii. Framework Language for Compensation. 143
ix. Full Clearing. 143
IV. Conclusion. 149
JUDGMENT AND REASONS
[1] This is an application for judicial review pursuant to ss 18 and 18.1 of the Federal Courts Act, RSC 1985, c-7 (“Federal Courts Act”), by which the Applicant challenges the decision of the Minister of Fisheries and Oceans to issue Authorization No. 13-01-005 (“Authorization”) to Nalcor Energy (“Nalcor”). The Authorization was issued on July 9, 2013 and, pursuant to ss 32(2)(c) and 35(2)(b) of the Fisheries Act, RSC 1985, c F-14 (“Fisheries Act”), it permits 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.
[2] The Applicant claims 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”), in the decision to issue the Authorization.
I. The Project [3] Nalcor proposed to develop two hydroelectric generation facilities on the lower Churchill River in central Labrador with a combined capacity of 3,047 megawatts (“MW”). The project would consist of two dams located at Muskrat Falls (824 MW) and at Gull Island (2,250 MW), two reservoirs, and transmission lines connecting Muskrat Falls, Gull Island and the existing Churchill Falls hydroelectric facility. Additional facilities would include access roads, temporary bridges, construction camps, borrow pits and quarry sites, diversion facilities and spoil areas (“Project”) (as described in the Report of the Joint Review Panel: Lower Churchill Hydroelectric Generation Project dated August 2011(“JRP Report”)).
[4] Given the nature of the Applicant’s claim, it is necessary to set out, in some detail, the factual background of this matter, its legislative backdrop and the relevant provisions 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, 22 January 2005 (“Agreement”), which was given force of law pursuant to the Labrador Inuit Land Claims Agreement Act, SNL 2004, c L-3.1 and the Labrador Inuit Land Claims Agreement Act, SC 2005, c 27.
II. Factual Background [5] On November 30, 2006 Nalcor submitted a project registration and description document for the Project with the Newfoundland and Labrador Department of Environment and Conservation (“NL DEC”) and the Canadian Environmental Assessment Agency (“Agency”), to initiate the provincial and federal environmental assessment processes pursuant to the Newfoundland and Labrador Environmental Protection Act, SNL 2002, c E-14.2 (“NL EPA”) and the Canadian Environmental Assessment Act, SC 1992, c 37 (“CEAA”). The Agency was responsible for coordinating federal Aboriginal consultation during the environmental assessment of the Project, and for acting as the Crown Consultation Coordinator as described in the Consultation Framework described below.
[6] Transport Canada (“TC”) and DFO determined that an environmental assessment was required because, to proceed, the Project would require approval pursuant to s 5(1) of the Navigable Waters Protection Act, RSC 1985, c N-22 (“NWPA”) as it involved dam construction, and an authorization pursuant to s 35(2) of the Fisheries Act as it would likely result in the harmful alteration, disruption or destruction of fish habitat, thereby triggering s 5(1)(d) of the CEAA. TC and DFO each identified themselves as a “responsible authority” (“RA”) as defined in the CEAA, being a federal authority that is required to ensure that an environmental assessment (“EA”) is conducted (CEAA, ss 2(1), 11(1)). Health Canada identified itself as being in possession of specialist or expert information or knowledge necessary to conduct the EA, as did Environment Canada (“EC”), Natural Resources Canada (“NRC”), and Aboriginal Affairs and Northern Development Canada (then Indian and Northern Affairs Canada).
[7] In response to a December 4, 2006 opinion request from NL DEC, DFO advised Newfoundland and Labrador (the “Province”) on January 12, 2007 that, amongst other things: an Environmental Impact Statement (“EIS”) was recommended in order to address the potential impacts on fish and fish habitat; the potential for bioaccumulation of mercury should be assessed in all fish species; a discussion of potential downstream effects should be provided; Nalcor should consider and discuss methods to reduce the release of mercury into the reservoir, thereby reducing mercury uptake and accumulation; and, the effects of changes to fish and fish habitat downstream of Muskrat Falls and/or Lake Melville should be discussed.
[8] On February 9, 2007 a Notice of Commencement of an Environmental Assessment for the Project was posted on the Agency Registry, which initiated an EA of the Project under the CEAA. Because DFO was of the opinion that the Project was likely to cause significant adverse environmental impacts, the federal Minister of Environment ultimately determined that a joint Canada-Newfoundland and Labrador EA, to be conducted by an independent review panel pursuant to ss 25(a) and 29 of the CEAA, being the most stringent of the EA review options under that legislative regime, was appropriate.
[9] Prior to making that determination, the Minister of Environment, as represented by the Minister of Lands and Natural Resources, wrote to the Applicant on May 30, 2007, advising of his intent to refer the proposed Project to a joint Canada-Newfoundland and Labrador review panel, referred to as the Joint Review Panel (“JRP” or “Panel”) for the EA and advising that the Agency had been asked to contact the Applicant to discuss the next steps in the process.
[10] On August 8, 2007 DFO and TC wrote to the Applicant concerning the Project and, as required by s 11.2.8 of the Agreement, provided the Project registration document. The letter explained that DFO had determined that the proposed damming and formation of the reservoirs would likely cause a harmful alteration, disruption or destruction of fish habitat and, therefore, that authorizations under the Fisheries Act would be required. Further, that TC had determined that the NWPA approvals would likely be required because a dam was a named work under Part I of the NWPA, those regulatory requirements being triggers for an EA pursuant to s 5(1)(d) of the CEAA. The letter also advised that DFO and TC were arranging consultations with Aboriginal groups to hear and understand their views about how they might be affected by the granting of the authorizations and approvals to construct and operate the Project, and invited participation.
[11] Prior to this, DFO had met with representatives of the Applicant and other Aboriginal groups in Goose Bay, Labrador on October 19 and 20, 2006 to discuss DFO’s role with respect to the EA and to identify their early positions and perspectives about the Project. At that time the Applicant had noted, amongst other things, that it should be consulted as, while the Project was not on Labrador Inuit Lands (“LIL”) or in the Labrador Inuit Settlement Area (“LISA”), which terms are defined in the Agreement, it could affect the zone where the Applicant has harvesting rights pursuant to ss 12.13.10 and 12.13.13 and Schedule 12-E of the Agreement. The Applicant further noted that consultation should be in accordance with the Agreement.
[12] In March 2007 the Province provided DFO with draft Environmental Impact Statement Guidelines (“EIS Guidelines”) for comment. The preface of the draft EIS Guidelines stated that they were intended to assist the proponent with the preparation of the EIS, the purpose of which was to identify the important environmental impacts associated with the undertaking, to identify appropriate mitigation and produce a statement of residual effects for evaluation by the Minister of Environment and Conservation. With respect to the EIS to be prepared by Nalcor, the EIS Guidelines stated that, “The contents of the EIS will be used by the Minister of Environment and Conservation, in consultation with Cabinet, to determine the acceptability of the proposed project based on anticipated impacts, proposed mitigation, and severity of unmitigable residual impacts from the proposed undertaking”. DFO reviewed the draft and made comments including that the study area boundary should include areas downstream of Muskrat Falls (Upper Lake Melville) where biological effects may be expected to occur.
[13] DFO and the Agency met with the Applicant in Goose Bay on September 18, 2007 at which time the need for input by the Applicant into the EIS was noted and a copy of the draft EIS Guidelines was provided. The draft EIS Guidelines were made available to the public for review on December 19, 2007. More than fifty interested parties responded. The Applicant provided comments on February 22, 2008, referencing the potential application of consultation provisions as found in the Agreement and seeking, amongst other things, an expanded study area for the EIS.
[14] On June 6, 2008 the Assistant Deputy Minister for the NL DEC responded to the Applicant’s comments on the draft EIS Guidelines, noting that they had been reviewed by both governments and that the Province was responding with the consent of the Agency. It noted that the draft EIS Guidelines had been significantly modified to include consideration of the interests and knowledge of Aboriginal groups and communities, the Applicant in particular. Further, that s 7.0, Consultation with Aboriginal Groups and Communities, had been completely revised and that a list of the Aboriginal groups and communities to be consulted by Nalcor when preparing the EIS, including the Applicant, was now included. A table responding to the Applicant’s comments, on a point by point basis, was attached to the letter, which also stated that should further explanation be required, the Applicant, upon request, would be provided with a meeting with both governments in an effort to resolve any outstanding concerns with the draft EIS Guidelines. Absent such a request, the Province and Canada would proceed to finalize the EIS Guidelines.
[15] The finalized EIS Guidelines were issued by Canada and the Province in July 2008. Ultimately, the EIS Guidelines did not stipulate specific geographic boundaries for the EIS, but required Nalcor to provide rationale for delineating the study area boundaries as it did (EIS Guidelines, s 4.4.2). They also required that in its EIS, Nalcor assess whether the Project may reasonably be expected to have adverse environmental effects on the LISA (EIS Guidelines, s 4.2.5).
[16] The EIS Guidelines described the EA as a process for identifying a Project’s potential interactions with the environment, predicting environmental effects, identifying mitigation measures and evaluating the significance of residual environmental effects. The document also stated that if the Project proceeded, the EA process would provide the basis for setting out the requirements for monitoring and reporting to verify compliance with the terms and conditions of approval and the accuracy and effectiveness of predictions and mitigation measures (EIS Guidelines, s 2.1). Aboriginal and public participation, aboriginal traditional and community knowledge, the precautionary principle (EIS, Guidelines, ss 2.2, 2.3 and 2.5) and other matters were identified as basic principles of an EA. Regarding consultation with Aboriginal groups, the EIS Guidelines stated:
4.8 Consultation with Aboriginal Groups and Communities
The EIS shall demonstrate the Proponent’s understanding of the interests, values, concerns, contemporary and historic activities, Aboriginal traditional knowledge and important issues facing Aboriginal groups, and indicate how these will be considered in planning and carrying out the Project.
To assist in ensuring that the EIS provides the necessary information to address issues of potential concern to these groups, the Proponent shall consult with each group for the purpose of:
(a) Familiarizing the group with the Project and its potential environmental effects;
(b) Identifying any issues of concern regarding potential environmental effects of the Project; and
(c) Identifying what actions the Proponent is proposing to take to address each issue identified, as appropriate.
[17] Prior to this, in February 2008 the Government of Canada had released the Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (“Interim Consultation Guidelines”). The evidence of DFO was that these Interim Consultation Guidelines established that consultation by Canada with Aboriginal groups was to be conducted by way of a “whole of government approach” and should be integrated with the EA process to the extent possible. Further, that to the best of DFO’s ability, the Project consultations were conducted with reference to the Interim Consultation Guidelines throughout the Project until the issuance of the Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult in March 2011 (Affidavit of Ray Finn, Regional Director of Ecosystems Management, Newfoundland and Labrador Region, DFO dated 22 October 2013 (“Finn Affidavit”), paras 35-36).
[18] On May 1, 2008 the Province wrote to the Applicant, with the consent of the Agency, advising that both levels of government wished to work with the Applicant to ensure that their respective obligations under the Agreement were met. In that regard, they had reviewed the Agreement with respect to obligations concerning “undertakings”, as defined in the Agreement, and identified ss 11.2.2, 11.2.8, 11.2.9 and 11.5.11 as key items for consideration. The Province and the Agency proposed and attached a draft process (“Draft Consultation Process”) as a means to achieve those obligations. This proposal divided the EA process into its constituent parts and indicated how the Applicant would be consulted at each stage of the process.
[19] On August 13, 2010 Canada issued the Federal Aboriginal Consultation Framework for the Lower Churchill Hydroelectric Generation Project (“Consultation Framework”). The Agency sent the Consultation Framework to the Applicant on August 20, 2010. It states that it sets out additional detail as to how the federal government would rely on the JRP process, to the extent possible, to assist in fulfilling its legal duty to consult Aboriginal groups with respect to the proposed Project. It identifies the Agency as being responsible for coordinating federal Aboriginal consultation during the EA and that the Agency would also fulfill the role of Crown Consultation Coordinator. As such, the Agency would ensure that the activities described in the Consultation Framework were carried out and that Aboriginal groups were well informed. On September 7, 2010 the Agency met with representatives of the Applicant. The minutes of the meeting indicate that they were asked if they had any comments on the Consultation Framework. The response was that it was fine as it was fairly generic and contained nothing unexpected, however, that 45 days to prepare for the hearings was too short and it should be 90 days. At this meeting, the Applicant also expressed its view that the Project area as described by Nalcor was inadequate as it did not include Lake Melville.
[20] The Consultation Framework appears to follow the same general process as the May 2008 Draft Consultation Process, but with further detail. It divides the consultation into the following five phases, which are adopted below for convenience:
• Phase 1: Initial engagement and consultation on the draft JRP Agreement, the appointment of the JRP members and the EIS Guidelines;
• Phase 2: JRP process leading to hearings;
• Phase 3: Hearings and preparation of the JRP Environmental Assessment Report (JRP Report);
• Phase 4: Consultation on the JRP Report; and
• Phase 5: Regulatory permitting.
The evidence of DFO is that the Agency led the consultation in Phases 1-4, whereas DFO did so in Phase 5 (Affidavit of Stephen Chapman, Associate Director, Regional Operations, with the Agency, dated 22 October 2013 (“Chapman Affidavit”), paras 130, 132).
Phase 1: Initial Engagement and Consultation on the Draft JRP Agreement, the Appointment of the JRP Members and the EIS Guidelines [21] Phase 1 included initial engagement and the preparation of the EIS Guidelines, the related consultation for which is described above. It also included consultation on the draft JRP agreement (“JRP Agreement”), draft JRP terms of reference (“TOR”), and Panel selection.
[22] On May 7, 2008 the Province, with the consent of the Agency and in accordance with Draft Consultation Process, provided the Applicant with the draft JRP Agreement and the draft TOR in advance of making these publicly available for comment on June 6, 2008. The Applicant was invited to provide comments and was advised that these would be given full and fair consideration and that a written response would be provided prior to the execution of the JRP Agreement and TOR. The Applicant could also request a meeting with the Province and the Agency in an effort to resolve any concerns with the draft JRP Agreement and TOR. The Applicant did not provide any comments on these documents.
[23] The JRP Agreement and TOR were finalized and released in January 2009. Subsequently, these were amended to extend the comment period for the EIS by 30 days for three Aboriginal groups, including the Applicant, and to provide for translation of certain JRP documents into Aboriginal languages, including Inuktitut.
[24] The JRP Agreement required the Panel to conduct the EA in a manner that discharged the requirements of the CEAA, NL EPA and TOR. All JRP hearings were to be public and to provide for the participation of Aboriginal groups, the public, governments, Nalcor and other interested parties. Upon completion of the EA, the JRP was to prepare a report which would address the factors to be considered under s 16 of the CEAA and s 65 of the NL EPA, set out the rationale, conclusions and recommendations of the JRP relating to the EA, including any mitigation measures and follow-up program, and include a summary of issues raised by Aboriginal groups, the public, governments and other interested parties (JRP Agreement, ss 4.2, 4.3 and 6.3).
[25] The TOR set out the scope of the EA and the steps in the EA process. With respect to the scope, it specifically addressed Aboriginal rights as follows:
Aboriginal Rights Considerations
The Panel will have the mandate to invite information from Aboriginal persons or groups related to the nature and scope of potential or established Aboriginal rights or title in the area of the Project, as well as information on the potential adverse impacts or potential infringement that the Project/Undertaking will have on asserted or established Aboriginal rights or title.
The Panel shall include in its Report:
1. information provided by Aboriginal persons or groups related to traditional uses and strength of claim as it relates to the potential environmental effects of the project on recognized and asserted Aboriginal rights and title.
2. any concerns raised by Aboriginal persons or groups related to potential impacts on asserted or established Aboriginal rights or title.
The Panel will not have a mandate to make any determinations or interpretations of:
• the validity or the strength of any Aboriginal group’s claim to aboriginal rights and title or treaty rights;
• the scope or nature of the Crown’s duty to consult Aboriginal persons or groups;
• whether Canada or Newfoundland and Labrador has met its respective duty to consult and accommodate in respect of potential rights recognized and affirmed by s. 35 of the Constitution Act, 1982; and
• the scope, nature or meaning of the Labrador Inuit Land Claims Agreement.
[26] By letter of May 13, 2008 the Province invited the Applicant to propose three nominees for consideration for appointment to the JRP. The Applicant proposed one nominee, Dr. Keith Chaulk, who was subsequently appointed as one of the five JRP members.
Phase 2: JRP Process Leading to Hearings
[27] Phase 2 concerned the JRP process leading up to the public hearings, including consultation on the EIS and additional information requests (“IR”). The Applicant was one of eleven groups who received participant funding pursuant to s 58(1.1) of the CEAA. It received $23,471 for participation in Phase 2.
[28] On February 17, 2009 Nalcor submitted its EIS to the JRP. The EIS, together with its component studies, comprised over 10,000 pages and incorporated a number of baseline studies and other information. The JRP then initiated a 75-day public consultation process on the EIS. The public consultation process was subsequently extended by 30 days as some Aboriginal groups had not received notification of their participant funding until after the public review period had commenced.
[29] On June 19, 2009 the Applicant provided a detailed response to the JRP in respect of the EIS. This included its view that the study area of the EIS should be expanded, that the EIS contained no support for the statement that there was no reasonable possibility the Project would have an adverse environmental effect in the LISA, and, that the follow up program should include Lake Melville with focus on water temperature, salinity, primary production and methylmercury levels in fish and marine mammals.
[30] Based on the comments received and the JRP’s own questions, 166 IRs regarding the EIS were sent to Nalcor in five rounds by the JRP. Nalcor responded to each IR, submitting approximately 5000 pages of additional documentation. The JRP invited the public, Aboriginal groups and governments to review the additional information received from Nalcor and to provide comments.
[31] On December 18, 2009 the Applicant submitted its comments to the JRP with respect to the additional information submitted by Nalcor. Nalcor responded to the submissions on February 16, 2010.
[32] On February 15, 2010 the JRP wrote to the Applicant advising that the information provided to date by Nalcor was insufficient and that additional information was required before it could conclude on the sufficiency of the EIS for the purpose of proceeding to public hearings. It advised that it had sent additional IRs to Nalcor, and encouraged the Applicant to participate and to provide information regarding traditional land and resource use to Nalcor. It also invited the Applicant to provide to the JRP information related to the nature and scope of Aboriginal rights or title in the Project area and any potential adverse impacts or potential infringement of the Project on those rights or title, all as set out in the TOR. The JRP repeated this request on December 3, 2010.
[33] During this time there were also various communications between the Applicant, the Agency and the JRP. On January 14, 2011, the JRP determined that the EIS along with the information submitted in response to the IRs contained sufficient information to allow it to proceed to the public hearings phase of the EA.
[34] On February 16, 2011 the Agency and DFO met with the Applicant to provide information on the hearings process and the process for consultation on the JRP Report. At this time the Applicant also discussed issues of concern to it, including downstream impacts. DFO advised of its position that there was not enough evidence in the EIS to back up Nalcor’s conclusion that there would be no downstream effects in Lake Melville and that DFO, Health Canada and other federal departments would make a joint presentation on mercury concerns during the relevant public hearing.
[35] On February 21, 2011 DFO provided to the JRP a summary of its views on the EIS and related recommendations. DFO supported removal of all vegetation in the reservoir footprints and three meters above the full supply level prior to impoundment to lessen the extent of mercury release, but did not make a recommendation to that effect. Further, because it was possible that mercury bioaccumulation as a result of the Project may be observed at a greater magnitude, for longer periods and further downstream than predicted by Nalcor, DFO recommended that Nalcor be required to develop a comprehensive program to monitor spatial and temporal changes in mercury in fish within the reservoirs and downstream following reservoir creation. The frequency and timing of sampling supporting a clear assessment of the magnitude and timing of changes and informed determinations as to risks to human health and implementation of fisheries management measures. Further, DFO recommended that more baseline data be collected on mercury levels in estuarine fish downstream of Muskrat Falls and in Goose Bay in advance of inundation.
Phase 3: Hearings and Preparation of the JRP Report [36] Phase 3 included the public hearings and the preparation of the JRP Report. The JRP held 30 days of hearings in nine locations in Newfoundland and Labrador and in Quebec between March 3 and April 15, 2011. The Applicant made written submissions and participated in the public hearings, raising concerns about environmental, social, cultural and health effects of the Project, emphasizing the downstream effects, including methylmercury. In its written submissions the Applicant proposed recommendations and mitigation measures, including an accord between the Applicant and Nalcor concerning baseline establishment and monitoring of effects and compliance as a condition of approval, as well as clearing of all wood and brush within reservoir boundaries. DFO participated in the hearings, as did other parties.
[37] The JRP Report was issued on August 25, 2011. It is a comprehensive, 355 page document which describes the process leading to its issuance and, for each topic addressed in the report, sets out Nalcor’s views, the views of the participants and the JRP’s conclusions and recommendation(s) concerning that topic. In total, the JRP made 83 recommendations, should the Project be approved. In Chapter 17, the Panel’s Concluding Comments, and as summarized in the executive summary, the JRP reported that it had determined that the Project would be likely to have significant adverse effects in the areas of: fish habitat and fish assemblage; terrestrial, wetland and riparian habitat; the Red Wine Mountain caribou herd; fishing and seal hunting in Lake Melville should consumption advisories be required; and, culture and heritage. It also identified a range of potential Project benefits, as well as crucial additional information required before the Project should proceed in the areas of long-term financial returns, energy alternatives to serve island needs, and reducing uncertainty about downstream effects. The JRP noted that it did not make the final decision about whether the Project should proceed but that government decision-makers would have to weigh all effects, risks and uncertainties in order to decide whether the Project was justified in the circumstances and should proceed in light of the significant adverse environmental effects identified by the JRP.
[38] Chapter 6, Aquatic Environment, is particularly relevant to the issues raised by the Applicant in this application. There the JRP described the views of Nalcor and the participants on a number of issues including the fate of mercury and downstream effects. It identified the key issues that emerged from the review process which included: the effects of reservoir preparation; the fate of methylmercury in reservoirs; downstream effects below Muskrat Falls and the likelihood that Project effects, including bioaccumulation of mercury, would be seen in Goose Bay or Lake Melville; and follow-up monitoring. Related to this are findings in Chapters 4, 8, 9, 10 and 13.
[39] The JRP was not convinced that all effects beyond the mouth of the river would be “non-measurable” as defined by Nalcor. It stated that while effects in Lake Melville were more difficult to predict on the basis of existing information, this emphasized the need for a precautionary approach, particularly because no feasible adaptive management measures had been identified to reverse either long-term adverse ecological changes or mercury contamination of renewable resources.
[40] The JRP concluded that, based on the information before it, it was unable to make a significance determination with respect to the risk of long term alteration of ecological characteristics in the estuarine environment. There was a risk that mercury could bioaccumulate in fish and seals in Goose Bay, and possibly in Lake Melville populations as well, but this would probably not represent a risk to the health of these species. While the implications on health and land use were addressed elsewhere in the JRP Report, Recommendation 6.7 addressed the need to take a precautionary approach to reduce uncertainty regarding both the potential ecological and mercury effects downstream. As described in more detail later in these reasons, Recommendation 6.7 suggested that prior to impoundment, Nalcor be required to carry out a comprehensive assessment of downstream effects, including baseline mercury data collection and revised modelling to predict the fate of mercury in the downstream environment.
[41] The significance of the potential for downstream mercury effects on Aboriginal and non-Aboriginal land and resource use, and on human health and communities was discussed by the JRP in Chapters 8, 9, and 13.
Phase 4: Consultation on the JRP Report [42] Phase 4 concerned consultation on the JRP Report and recommendations. The Applicant was provided with funding in the amount of $21,000 by the Agency’s participant funding program to support its engagement at this stage.
[43] On August 31, 2011 the Applicant wrote to the Premier of the Province generally endorsing the JRP Report and highlighting key issues, including potential bioaccumulation of mercury downstream and the importance of fishing and seal hunting to Inuit, and requesting a meeting. A second request followed which was responded to on November 8, 2011. In its response, the Province referenced the September 16, 2011 meeting that the Applicant had with the Agency, DFO, EC, and NL DEC, described below.
[44] On September 9, 2011 the Agency wrote to the Applicant advising that consultation on the JRP Report and its conclusions and recommendations would be conducted to fulfill any applicable duty to consult that each government may owe to any Aboriginal government or group. The letter requested that, prior to the governments taking any decision or course of action which would enable the Project to proceed, the Applicant prepare and submit its views on the JRP Report to the two governments within 45 days of the public release of the oral translation in Inuktitut of the JRP Report’s Executive Summary. The letter stated that this consultation would seek to establish the Applicant’s views on whether all concerns about potential impacts of the Project on Labrador Inuit’s rights under the Agreement had been characterized accurately and on the manner and extent to which any recommended mitigation measures might serve to accommodate those concerns. Further, to determine whether there remained any outstanding issues. Full and fair consideration would be given to such views and, where requested, the governments would meet with the Applicant to discuss its views on the JRP Report. The Agency advised that this consultation would inform reports to the federal and provincial Cabinets concerning the consultation process with the Aboriginal groups.
[45] On September 16, 2011 representatives of the Agency, DFO, EC and NL DEC met with representatives of the Applicant in Goose Bay to discuss consultation on the JRP Report. With respect to the process of consultation, the Agency’s meeting notes indicate that in response to the Applicant’s question of which government would respond to the JRP Report and to the responses of the Aboriginal groups, the Agency advised that the responses from Cabinets would very likely be general and a rationale may not always be given. However, that the departments would provide a rationale to the Aboriginal groups to the best of their ability as soon as possible after the Cabinets’ responses. If the Applicant advised which recommendations were most important to it, the Agency and departments could focus on those in developing rationale. With respect to monitoring of downstream effects, the Applicant put forward its views, including that a comprehensive holistic approach to arctic science in Lake Melville should be funded, Inuit led and carried out utilizing ArcticNet, and, that specific wording for consumption advisories should be developed. The August 30, 2013 Affidavit of Tom Sheldon, the Applicant’s Director of Environment (“Sheldon Affidavit”), indicates that he also emphasized the need for implementation of Recommendation 6.7 and agreed with the JRP’s recommendation for full clearing of the Muskrat Falls reservoir as well as the need for an agreement between Nalcor and the Labrador Inuit regarding further mitigation given the JRP’s conclusions and report (Sheldon Affidavit, para 32).
[46] On November 11, 2011 the Applicant submitted the Nunatsiavut Government Response to Panel Report. This acknowledged that the Applicant had spent considerable time participating in the EA process in order to assert its views that the Project would have potential negative effects on Labrador Inuit and their rights and title, environment, culture and way of life. This participation had included approximately 30 separate submissions to the JRP and the Applicant stated that it was pleased that the JRP had found many of its concerns to be valid and that it agreed with many of the JRP’s recommendations.
[47] The submissions recited the JRP’s findings with respect to downstream effects; referenced a recent study on the human health effects of prenatal and childhood exposure to environmental contaminants, such as methylmercury, on the health and development of Inuit children in northern Quebec that was released subsequent to the Panel hearings; included a table setting out its response to each JRP Recommendation; and, set out three major recommendations that the Applicant submitted would help to mitigate impacts on Inuit and Inuit rights and to allow Inuit to constructively contribute to the Project process going forward. These are summarized as follows:
Inuit representation on management structure
This asserted a fundamental right to participate as a part of a high level management mechanism for the proposed Project which would consist of the Nunatsiavut Government, the Innu Nation, the Province and Canada;
Inuit rights, Inuit research – baseline studies and monitoring
This asserted a right of Inuit to conduct and lead baseline research and monitoring into a broad suite of potential impacts that the Project would have on Inuit and Inuit rights. It also asserted a moral and legal obligation on Nalcor, Canada and the Province to fund this, and requested a minimum of $200,000 per year for a program specifically designed to establish baseline conditions directly related to Inuit rights. The Applicant asserted a need for a large scale, comprehensive understanding of the downstream environment and how changes would impact Inuit (biophysical, cultural, socioeconomic and health impacts). It asserted that research should be led by Inuit, who would collaborate with Nalcor and governments, and who would utilize ArcticNet for this purpose; and
Compensation related to impacts on Inuit and Inuit rights as a result of the Project
This asserted that framework language should be included as a condition of permits associated with the development of the Project to ensure that Inuit have a mechanism for compensation if any listed impact, including losses related to harvesting and cultural practices and unplanned events, should arise.
[48] On December 21, 2011 the Applicant wrote to the Premier of the Province (Canada was copied on the letter) requesting a meeting between senior political levels of the Province, Nalcor and the Nunatsiavut Government prior to the announcement of the Province’s response to the JRP Report. The Premier responded the following day, and a meeting was held on January 9, 2012. The meeting was attended by representatives of the Applicant and the Province.
[49] By letter of January 16, 2012 to the Minister of Natural Resources for the Province (cc’d to the Ministers for DFO, EC and others), the Applicant set out four core mitigative measures proposed during that meeting. These included the three major recommendations in the Applicant’s response to the JRP Report (summarized above), as well as Inuit priority for jobs, training and business opportunities associated with the Project, second only to Innu.
[50] On January 24, 2012 the Agency prepared an internal report entitled Lower Churchill Hydroelectric Generation Project: Report on Aboriginal Consultation Associated with the Environmental Assessment (“Aboriginal Consultation Report”) which states that it describes how the federal government consulted with Aboriginal groups in the context of the EA, in parti