Nunatukavut Community Council Inc. v. Canada (Attorney General)

Nunatukavut Community Council Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-08-18
Neutral citation
2015 FC 981
File numbers
T-1339-13
Notes
A correction was made on August 20, 2015
Decision Content
Date: 20150818
Docket: T-1339-13
Citation: 2015 FC 981
Ottawa, Ontario, August 18, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
NUNATUKAVUT COMMUNITY COUNCIL INC AND TODD RUSSELL, ON THEIR OWN BEHALVES AND ON BEHALF OF THE MEMBERS OF NUNATUKAVUT COMMUNITY COUNCIL INC
Applicants
and
THE ATTORNEY GENERAL OF CANADA AND NALCOR ENERGY
Respondents
JUDGMENT AND REASONS
Background. 3
Consultation Framework. 5
Phase 1 – Initial Engagement and consultation on the draft JRP Agreement, the appointment of the JRP Panel members and the development of EIS Guidelines. 6
Phase 2 – JRP Process leading to Hearings. 10
Phase 3 – Hearings and Preparation of the JRP Report 12
Phase 4 – Consultation of the JRP Report 15
Phase 5 – Regulatory Permitting. 18
Issues. 28
Issue 1: What is the standard of review?. 29
The NCC’s Position. 29
Canada’s Position. 29
Nalcor’s Position. 30
Analysis. 31
Issue 2: What was the content of the duty to consult and accommodate?. 38
The NCC’s Position. 38
Canada’s Position. 39
Nalcor’s Position. 41
Analysis. 42
(a) UNDRIP. 42
(b) Content of the Duty to Consult 44
Issue 3: Did Canada satisfy its duty to consult and accommodate?. 52
The NCC’s Position. 52
Canada’s Position. 54
Nalcor’s Position. 57
Analysis. 58
(a) Funding – Aboriginal Traditional Knowledge and Land and Resource Use. 62
(b) Funding – Phase 5. 71
(c) Funding – Phase 5, Legitimate Expectations. 82
(d) Funding – Phase 5, Review of FHC and EEM Plans. 84
(e) Lack of Meaningful Consultation and Bad Faith. 91
Issue 4: Was the decision to issue the Authorization reasonable?. 97
The NCC’s Position. 97
Canada’s Position. 98
Nalcor’s Position. 99
Analysis. 101
(a) Recommendations 6.7 and 4.5. 101
(b) Reservoir Clearing – Recommendation 4.5. 113
(c) Effectiveness of the FHC Plan. 119
(d) Miscellaneous Issue. 127
(i) Impoundment 127
(ii) Treatment of Innu. 128
Conclusion. 129
[1] This is an application for judicial review brought pursuant to ss 18 and 18.1 of the Federal Courts Act, RSC, 1985, c F-7, by which the Applicants challenge the decision of the Minister (“Minister”) of the Department of Fisheries and Oceans (“DFO”) 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”), permits 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.
[2] The Applicants claim 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.
Background [3] The NunatuKavut Community Council Inc. describes 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 was formed in 2010 and at all relevant times Mr. Todd Russell (“Russell”) was its President. The Applicants will be referred to, collectively, as “NCC” in this decision.
[4] In 1991, the NCC’s predecessor, the Labrador Metis Association (later known as the Labrador Metis Nation), filed a land claim document with the government of Canada (“Canada”). It filed additional research in 1996 and did so again in 2010 in the form of a document entitled “Unveiling NunatuKavut, Describing the Lands and People of South/Central Labrador, document in Pursuit of Reclaiming a Homeland, NunatuKavut, 2010” (“Unveiling NunatuKavut”). Although the NCC has asserted a land claim in the region it describes as overlapping the project area, this has not currently been accepted for negotiation by either Canada or the government of the Province of Newfoundland and Labrador (“Province”).
[5] Nalcor was incorporated pursuant to the Energy Corporation Act, SNL 2007, c E-11.01, its predecessor being Newfoundland and Labrador Hydro. Nalcor was created to engage in and carry out activities pertaining to the energy resources of the Province, which is its sole shareholder.
[6] Nalcor proposed to develop two hydro-electric generation facilities on the lower Churchill River in central Labrador with a combined capacity of 3,047 megawatts (“MW”). The project (“Project”) would consist of dams located at Muskrat Falls (824 MW) and at Gull Island (2,250 MW), and would include reservoirs, transmission lines, access roads, temporary bridges, construction camps, borrow pits and quarry sites, diversion facilities and spoil areas as described in the Report of the Joint Review Panel Lower Churchill Hydroelectric Generation Project, dated August 2011 (“JRP Report”).
[7] Given the nature of the NCC’s claim, it is necessary to set out, in some detail, the factual background of this matter.
[8] On November 30, 2006, Nalcor registered the Project with the Newfoundland and Labrador Department of Environment and Conservation (“NL DEC”) and the Canadian Environmental 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”).
[9] In January 2007, Nalcor was advised by NL DEC that, pursuant to the NL EPA, an Environmental Impact Study (“EIS”) was required for the Project. In February 2007, the Minister advised the Minister of the Environment that DFO had determined that an environmental assessment (“EA”) was required because, to proceed, the Project would require approval of Transport Canada (“TC”) 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 by DFO 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. The Minister requested that the Project be referred to a review panel in accordance with s 25(a) of the CEAA.
[10] TC and DFO each identified themselves as a “responsible authority” (“RA”) as defined in the CEAA, that is, a federal authority that is required to ensure that an environmental assessment is conducted (CEAA, ss 2(1) and 11).
Consultation Framework [11] Canada, in its written submissions, divides the consultation process into five phases, based on the Federal Aboriginal Consultation Framework for the Lower Churchill Hydroelectric Generation Project, dated August 13, 2010 (“Consultation Framework”).
[12] The Consultation Framework sets out additional details as to how the federal government would rely on the joint review panel (“JRP” or “Panel”) process, to the extent possible, to assist it in fulfilling its legal duty to consult Aboriginal groups with respect to the proposed Project. The JRP process was identified as the primary mechanism for Aboriginal groups to learn about the Project and present their views, including with respect to their traditional knowledge, the environmental effects of the Project, effects on their land use, the nature and scope of their potential or established treaty rights, the impact the Project would have on them, and appropriate measures to mitigate. It identified the Agency as being responsible for coordinating federal Aboriginal consultation during the EA. As such, the Agency would ensure that the activities described in the Consultation Framework were carried out and that the Aboriginal groups were kept well informed. It divided the consultation process into five phases, which are adopted below for convenience:
• Phase 1 – Initial engagement and consultation on the draft Joint Review Panel Agreement (“JRP Agreement”), the appointment of the JRP panel members and the development of EIS Guidelines;
• Phase 2 – JRP process leading to hearings;
• Phase 3 – Hearings and preparation of the JRP Report;
• Phase 4 - Consultation on the JRP Report; and
• Phase 5 - Regulatory permitting.
Phase 1 – Initial Engagement and consultation on the draft JRP Agreement, the appointment of the JRP Panel members and the development of EIS Guidelines [13] On October 19, 2006, DFO representatives met with representatives of the NCC, and other Aboriginal groups, in Goose Bay to discuss DFO’s role with respect to the EA for the Project and to ascertain their early positions and perspectives. The NCC, amongst other things, stated that it looked forward to formal consultation and noted its land claim. On August 8, 2007, DFO and TC wrote to the NCC advising that the Project would require an EA pursuant to the CEAA and that DFO and TC would be arranging consultation with Aboriginal groups concerning how they may be affected by the granting of authorizations and approvals permitting harmful alteration, disruption or destruction of fish habitat.
[14] In October 2007, the Agency and NL DEC jointly issued draft Environmental Impact Statement Guidelines (“EIS Guidelines”) to Aboriginal groups, including the NCC, for comment. The draft EIS Guidelines were made available to the public for review on December 19, 2007. More than fifty interested parties responded, including the NCC, which provided comments on February 27, 2008.
[15] The NCC’s Comments on the Lower Churchill EIS Guidelines, addressed various issues including reservoir preparation (tree stump removal to reduce methylmercury accumulation), cumulative effects, downstream effects on the entire downstream environment, timing and adequacy of fish habitat compensation programs, and, Aboriginal rights or title. It also addressed the gathering and funding of this information, the consultation or accommodation process, the use of Aboriginal Traditional Knowledge and a comprehensive environmental agreement. The NCC noted its limited time and funding in preparation of its comments.
[16] The final EIS Guidelines were issued by Canada and the Province in July 2008. The purpose of the EIS Guidelines was described as a process for identifying the 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 measure (EIS Guidelines, s 2.1).
[17] Further, 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 interest, 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. The Aboriginal groups and communities to be considered include, in Newfoundland and Labrador, the Innu Nation, the Labrador Metis Nation and the Nunatsiavut Government and, in Quebec, the Innu communities of Uashat Mak Mani-Utenam, Ekuanitshit, Nutaskuan, Unamen Shipu, Pakua Shipi and Matimekush-Lake John.
[18] On May 7, 2008, the Province, with the consent of the Agency, provided the NCC with the draft JRP Agreement and its Terms of Reference (“TOR”) in advance of making these publicly available for comment. The NCC was invited to provide comments and 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 NCC could also request a meeting in an effort to resolve any related issues. The NCC did not provide comments on the draft JRP Agreement and TOR.
[19] The JRP Agreement and TOR were finalized and released in January 2009. The JRP Agreement was subsequently amended to extend the consultation period for Aboriginal groups and to provide for translation of certain JRP documents into Aboriginal languages.
[20] The JRP Agreement and TOR required the Panel to conduct the EA in a manner that discharged the requirements of the CEAA and the NL EPA. 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 required 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 recommendation of the JRP relating to the EA, including any mitigation measures and follow up programs, and include a summary of issues raised by the Aboriginal groups, the public, governments and other interested parties (JRP Agreement, ss 4.2, 4.3 and 6.3).
[21] The TOR 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 interpretation 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.
Phase 2 – JRP Process leading to Hearings [22] On February 17, 2009, Nalcor submitted its EIS to the JRP. The EIS comprised over 10,000 pages, including over sixty supporting component studies. On March 9, 2009, the JRP initiated a 75 day public consultation process on the EIS.
[23] In April 2009, the Science Branch of DFO reviewed sections of the EIS and component studies related to the aquatic environment for the purpose of offering advice with respect to the scientific reliability of the EIS, including an opinion on the accuracy of Nalcor’s predictions regarding environmental impacts. The NCC was invited to attend the review, conducted by way of a Regional Advisory Process, but did not participate. In June 2009, the Science Advisory report (entitled Science Evaluation of the Environmental Impact Statement for the Lower Churchill Hydroelectric Project to identify Deficiencies with respect to Fish and Fish Habitat) identified deficiencies in the EIS, including the exclusion of the environment below Muskrat Falls, including Lake Melville, from the study area; a lack of detail in the monitoring programs; and, that additional effort was required to document local knowledge of fish habitat, especially in the area below Muskrat Falls.
[24] The JRP invited the public, Aboriginal groups and governments to review the EIS received from Nalcor and to provide comments as to the adequacy of the additional information, as measured against the EIS Guidelines, and the technical merit of the information presented. Based on the comments received and the JRP’s own questions, between May 1, 2009 and January 7, 2011, the JRP issued one hundred and sixty-six information requests (“IR”) to Nalcor regarding the EIS. The IRs required Nalcor to provide additional information or analysis in respect of the questions raised. In response, Nalcor submitted approximately 5000 pages of additional documentation by way of information request replies (“IRR”).
[25] On January 14, 2011, the JRP announced that it had sufficient information to proceed to public hearings.
Phase 3 – Hearings and Preparation of the JRP Report [26] The hearings commenced on March 3, 2011. Between then and April 15, 2011, the JRP held thirty days of hearings in nine locations in Newfoundland and Labrador and in Quebec. DFO participated in the various sessions of the hearings.
[27] On March 4, 2011, the NCC advised the JRP that it would be seeking an injunction to enjoin the public hearings based on its belief that there were unanswered questions that must be resolved before the JRP Panel hearings could continue.
[28] By letter of March 10, 2011, the JRP expressed its disappointment that the NCC would not participate in the hearings but stated, if an injunction were not granted, that there would be time and opportunity in the remaining portion of the hearings for the JRP to hear from the NCC regarding its asserted claim to Aboriginal rights and title and how the Project may impact these. This information could supplement the information already provided by the NCC, including the “Unveiling NunatuKavut” report.
[29] The injunction was brought in the Supreme Court of Newfoundland and Labrador. In addressing the NCC’s claims “that despite the frequent contacts it has had with the two levels of government, with Nalcor, with the CEA and with the JRP, it has never been meaningfully consulted or accommodated about the Lower Churchill Project”, the Court stated that it did “not accept that Nunatukavut was not consulted appropriately” (NunatuKavut Community Council Inc v Newfoundland and Labrador Hydro-Electric Corporation (Nalcor Energy), 2011 NLTD(G) 44 at paras 21 and 41 [NCC I]). The Court further found that the NCC would not suffer irreparable harm if the hearings proceeded, and that the NCC could face harm if it did not engage in the remaining phases of the EA process (NCC I at paras 50 and 52-53). The injunction was denied on March 24, 2011.
[30] In October 2012, the NCC conducted a protest which blocked access to a preliminary work site for the Project. The NCC asserted that Nalcor and the Province had failed to comply with their obligations to consult with it in respect of the Project. An interim injunction sought by Nalcor was initially granted, followed, in November 2012, by a permanent injunction (Nalcor Energy v Nuntukavut Community Council Inc, 2012 NLTD(G) 175). However, this was subsequently vacated on appeal (NunatuKavut Community Council Inc v Nalcor Energy, 2014 NLCA 46).
[31] On April 5, 2011, the NCC made a presentation to the JRP. This addressed consultation with Nalcor, a lack of funding to gather and present Aboriginal Traditional Knowledge, land use data gaps and issues with IR# JRP-151 (Aboriginal Consultation and Traditional Land and Resource Use), concerns about the status of Nalcor’s work on downstream effects, cumulative effects, and methylmercury contamination. Two PowerPoint presentations were made, one including reference to “Unveiling NunatuKavut”. On April 13, 2011, the NCC submitted a paper entitled “A brief paper to the Joint Review Panel on the Lower Churchill Hydroelectric Generation Project” which also addressed its concerns.
[32] The JRP Report was issued on August 25, 2011. It is a comprehensive, 392 page document (including the appendices) 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. Of particular note to this matter is Chapter 6, Aquatic Environment. There, the JRP 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 the bioaccumulation of mercury, would be seen in Goose Bay or Lake Melville; and, follow-up monitoring.
[33] In the concluding comments of Chapter 17, 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 on: fish habitat and fish assemblage in reservoirs; 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 benefits including economic, social and cultural benefits to future generations, and, identified crucial additional information required before the Project should proceed in the areas of long-term financial return, energy alternatives to serve island needs, and, to reduce the 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.
Phase 4 – Consultation of the JRP Report [34] Phase 4 concerned consultation on the JRP Report.
[35] On September 16, 2011, the Agency met with the NCC to discuss the JRP Report and Aboriginal consultation. On November 9, 2011, the NCC submitted its comments on the JRP Report. Among these comments, the NCC submitted that the JRP had discriminated against NCC communities, that it did not exercise its TOR as it had failed to insist that Nalcor or government(s) provide funding for studies so that the proper information from the NCC was forthcoming and that proper work be carried out with respect to Aboriginal Traditional Knowledge. Further, that more consultation was needed to address land and resource work in the footprint area, that Nalcor had not been candid with the NCC throughout the process, and that the JRP had failed to address the cumulative effects of the Project.
[36] On January 24, 2012, the Agency prepared an internal report entitled Lower Churchill Hydro Electric 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 particular, how it had relied on the JRP process, to the extent possible, to assist in discharging its legal duty to consult. The report states that it describes the positions of the Aboriginal groups with respect to how the potential adverse environmental effects of the proposed Project may impact their potential or established Aboriginal or treaty rights, which was derived from presentations the Aboriginal groups made to the JRP and from comments made by the groups directly to federal government department officials.
[37] By Order-in-Council dated March 12, 2012, the Governor-in-Council, on the recommendation of the Minister, pursuant to s 37(1.1)(a) of the CEAA, approved Canada’s response to the JRP Report.
[38] The “Government of Canada Response to the Report of the Joint Federal-Provincial Review Panel for Nalcor’s Lower Churchill Generation Project in Newfoundland and Labrador” (“Canada’s Response”) describes the Project, the federal regulatory approvals and involvement, the EA process, the JRP Report and Canada’s conclusions. Canada’s Response states that DFO and TC, as the RAs under the CEAA, as well as other interested parties, such as Natural Resources Canada (“NRC”), reviewed the JRP Report, a subsequent independent supply report commissioned by Nalcor, an economic analysis of the Project that was conducted by Canada, and comments submitted by Aboriginal groups and other stakeholders during and following the JRP process.
[39] In considering whether the significant adverse environmental effects of the Project could be justified in the circumstances, Canada’s Response stated that it accounted for the potential adverse effects of the Project and the commitments that had been made by the federal government related to the recommendations provided in the JRP Report, and those made by Nalcor in its EIS and during the panel hearings. Canada would require certain mitigation measures, environmental effects monitoring and adaptive management be undertaken by Nalcor, as well as additional studies on downstream effects. This would be done through inclusion of requirements in federal authorizations and approvals. Canada’s Response stated that ensuring that those commitments were carried out would minimize the negative effects of the Project and reduce the risks associated with the uncertainty about the success of mitigation measures.
[40] Further, that the potential social, economic and environmental benefits for the Province, communities and Aboriginal groups, as well as benefits beyond the Province that are associated with the Project, were also considered, as was an economic analysis of the Project by Canada.
[41] Canada determined that the expected significant energy, economic, socio-economic and environmental benefits outweighed the “significant adverse environmental effects” of the Project that were identified in the JRP Report:
Therefore the Government of Canada concludes that the significant adverse environmental effects of the Lower Churchill Hydroelectric Generation Project are justified by the benefits of the Lower Churchill Hydroelectric Generation Project.
(Canada’s Response, p 8)
[42] On March 16, 2012, in conformity with the Governor-in-Council’s approval of Canada’s Response, TC and DFO issued their course of action decision pursuant to ss 37(1) and 37(1.1) of the CEAA (“Course of Action Decision”). The Course of Action Decision noted that a follow-up program to verify the accuracy of the EA and/or determine the effectiveness of any mitigation measures was required for the Project, and that the estimated dates of the follow-up program were October 1, 2012 to October 1, 2037.
Phase 5 – Regulatory Permitting [43] Phase 5 of the consultation process concerned regulatory permitting leading to the issuance of the Authorization.
[44] By letter of April 23, 2012, the Agency advised the NCC that the consultation process was moving into Phase 5, regulatory permitting, as set out in the Consultation Framework. Accordingly, responsibility for leading and coordinating the consultation for the federal government was being transferred from the Agency to DFO. DFO sent a similar letter on July 9, 2012.
[45] Around this time, the NCC, Grand Riverkeeper, Labrador Inc. and the Sierra Club of Canada, sought judicial review of the JRP Report and Canada’s Response and “to prohibit the various federal Respondents from issuing permits, authorizations or financial assistance relating to the Project, and to quash the Governor in Council’s Response to the Report” (Grand Riverkeeper, Labrador Inc v Canada (Attorney General), 2012 FC 1520 at para 1 [Grand Riverkeeper]). Justice Near (then of this Court) found that Canada’s Response was not properly before the Court, as it had been released after the notice of application had been filed. As such, the judicial review in Grand Riverkeeper was limited to the JRP Report (Grand Riverkeeper at para 17). Ultimately, Justice Near dismissed the application for judicial review on December 20, 2012, concluding that the JRP reasonably considered the need for and alternatives to the Project (Grand Riverkeeper at para 54), reasonably recommended that the Province and an independent study panel augment the information gathered (Grand Riverkeeper at paras 59 and 62), and turned its mind to questions regarding the cumulative effects of the Project (Grand Riverkeeper at paras 59 and 64).
[46] By letter of May 4, 2012, the NCC wrote to the Minister stating that because of the ongoing judicial review, any participation by it in Phase 5 would be under protest. Further, that it had not been provided with sufficient information regarding the regulatory permits that were to be granted and, therefore, it could not identify which of its Aboriginal rights and title may be impacted by the permitting process. The NCC also stated that it had a number of outstanding concerns not dealt with during the EA process and that it had not been provided with information regarding the process that DFO intended to follow in fulfilling its constitutional duty to consult. The NCC described what it considered that duty to entail, which included funding for participation in the consultation process, for research on cultural and environmental impacts of the Project and for relevant scientific, technical and, if necessary, legal advice.
[47] On May 9, 2012, at the NCC’s request, its representatives met with DFO representatives to discuss the regulatory permits.
[48] On May 12, 2012, the NCC wrote to DFO describing the May 9, 2012 meeting. The NCC stated that DFO had advised that permitting would be by way of authorizations under ss 32 and 35 of the Fisheries Act; that a Letter of Advice had been issued on a portion of the Project; and, that DFO could provide the NCC with no funding for the Phase 5 consultations. The NCC stated that it had previously been advised that a Consultation Framework was being developed; that it had no resources to review or respond to permitting and that DFO had advised that it could not provide such resources; that the NCC wanted to be consulted in a meaningful way regarding mitigation, compensation and accommodation; that the permitting process had begun without consultation; that the NCC should be provided with a copy of the Letter of Advice, which should be rescinded; and, that all further authorizations should be held in abeyance until an adequate consultation process was effected. The NCC formally requested a copy of the Letter of Advice on May 28, 2012.
[49] On June 1, 2012, DFO provided copies of two Letters of Advice issued to Nalcor concerning stream fording and explained that these were not regulatory permits. Further, that prior to the issuance of a Fisheries Act authorization, DFO would consult with Aboriginal groups, including the NCC, and that an Aboriginal consultation protocol governing that process was under development and would be provided to the NCC for comment.
[50] By letter of June 4, 2012, the NCC stated that the EA did not account for Aboriginal Traditional Knowledge of the NCC and that its members might hold very site-specific knowledge that would inform better decisions as to the placement of the culverts and stream fording which were addressed by the Letters of Advice. Further, that the NCC had sought resources to present that knowledge, but had been refused by Nalcor.
[51] DFO responded on June 14, 2012, noting that Letters of Advice are not regulatory instruments, encouraging the NCC to share information they may have on any site-specific stream and review crossings in the area at issue, and, stating that DFO would be formally consulting with the NCC, and other Aboriginal groups, with respect to Fisheries Act authorizations for the Project.
[52] On July 9, 2012, DFO wrote to the NCC stating that, pursuant to the Consultation Framework, the federal government was entering the regulatory permitting phase (Phase 5) for the Project and wished to continue consultations respecting specific regulatory decisions, approvals or actions that may have potential adverse impacts on their asserted Aboriginal rights or title. DFO advised that the federal government anticipated issuing three kinds of approvals: the s 35(2) and s 32(2) Fisheries Act authorizations from DFO and, the s 5 approval under the NWPA from TC. DFO proposed to conduct consultations during the regulatory phase in accordance with an attached proposed Protocol for Regulatory Phase Aboriginal Consultation Lower Churchill Generation Project (“Regulatory Phase Protocol”) and sought comments on that process within 14 days.
[53] The NCC responded by way of email of August 8, 2012. This requested that a protocol be put in place to share the NCC’s Aboriginal Traditional Knowledge, that more emphasis be placed on Aboriginal Traditional Knowledge and that a clear definition of the Project footprint area be provided. By letter of February 21, 2013 DFO stated that comments not directly related to the draft protocol would be addressed by follow-up letter and that the comments on the protocol had been fully and fairly considered and were reflected in the final version of the protocol, which was attached.
[54] The final Regulatory Phase Protocol stated that in Step 1, upon receipt of the Fish Habitat Compensation Plan (“FHC Plan”) or the Environmental Effects Monitoring Program (“EEM Program” or “EEM Plan”), both conditions of the Fisheries Act authorization, a condensed Fish Habitat Compensation Report or condensed Environmental Effects Monitoring Program Report with a link to the full plan/program would be provided to the NCC. The NCC would then have 45 days for review and comment.
[55] In Step 2, within 10 days of receiving the application, the NCC could request a meeting with the RA, to be held within the 45 day period, to discuss the application/document. If no comments were received, then the RA would notify the NCC that the 45 day timeframe had ended and that the approval or authorization would be considered and, if appropriate, granted. If comments were received, then the RA would give them full and fair consideration and provide a written response. In Step 4, the RA would incorporate changes as appropriate and, in Step 5, within 5 days of issuance to Nalcor, copies of the Fisheries Act Authorization and the NWPA Approval would be provided to the NCC.
[56] Nalcor provided the FHC Plan to the NCC on December 21, 2012, and invited it to a public information session, which would provide a technical briefing on the FHC and EEM Plans, to be held in Goose Bay on January 16, 2013. Representatives of the NCC attended that session. The letter also extended an offer to meet with representatives of the NCC to brief them on the FHC and the EEM Plans. The NCC did not respond to Nalcor’s offer of a meeting.
[57] A February 5, 2013 DFO memorandum for the DFO Regional Director General addressed the status of Aboriginal consultations for Phase 5. Amongst other things, it noted that comments received on the proposed protocol indicated that some Aboriginal groups still had concerns about the EA that they felt had not been addressed. The majority of these related to impacts on Aboriginal rights and title, caribou, cumulative impacts, and the lack of land and resource use studies. “Close the loop” letters to the groups were being drafted addressing the outstanding issues prior to finalizing the Regulatory Phase Protocol.
[58] A February 21, 2013 memorandum for the Deputy Minister for DFO again summarized the status of Aboriginal consultations for Phase 5. It anticipated the DFO would complete the consultations by mid-May and should be in a position to issue a Fisheries Act authorization by June 2013.
[59] On February 28, 2013, DFO wrote to the NCC advising that it was preparing to issue a Fisheries Act authorization and provided the draft FHC and EEM Plans, as received from Nalcor, and sought comments on the two plans within 45 days as per the Regulatory Phase Protocol. The letter also noted that the NCC could, within the first 10 days of receiving the plans, request a meeting with DFO to discuss the documents. DFO stated that it would give full and fair consideration to the comments and respond in writing. A follow-up reminder letter was sent to the NCC on April 5, 2013.
[60] The NCC responded on April 15, 2013. Its letter did not provide comments on the FHC Plan or the EEM Plan. It stated that there had been an absence of procedural engagement with the NCC in preparing the plans; that the Regulatory Phase Protocol was unacceptable; that a meeting was sought with the official most directly involved in advising the Minister, or the Minister’s delegate, regarding the Authorization to discuss non-compliance by Nalcor and the inadequacies of consultation and accommodation to date; that the 45 day review period of the Regulatory Phase Protocol was not acceptable; that the NCC’s concerns on impoundment remained unaddressed; that no resources had been provided for the Phase 5 consultation and accommodation efforts; that there had been no direct consultation with the NCC in relation to the proposed authorizations; and, that a 60 day extension was required. The letter attached a table listing JRP Recommendations 6.6, 6.7, 6.9, 7.1, 7.2, 7.3, 8.4 and 9.3, the governments’ responses, and the steps taken by Nalcor and the regulator which the NCC deemed deficient.
[61] On May 31, 2013, DFO responded to the NCC’s letter of April 15, 2013 addressing twelve issues. These included that Nalcor had advised DFO that the NCC was provided with an opportunity to meet with Nalcor to discuss the FHC Plan, but that such a meeting did not take place. DFO stated that this fulfilled Canada’s commitment in this regard. As to the advisory letters, because DFO had determined that the proposed activities would not cause harmful impacts and did not require the issuance of a Fisheries Act authorization, it was not required to consult with the NCC. As to Recommendation 6.7, Canada’s Response stated that Nalcor would be required to collect additional baseline data on methylmercury accumulation in fish and on fish habitat downstream of Muskrat Falls in advance of reservoir impoundment. The EEM Plan provided for review of the detailed information that Nalcor would collect. Finalization and implementation of the EEM Plan as a condition of the Authorization would fulfil commitments of Canada in this regard. As to Recommendation 6.9, DFO referred to Canada’s Response agreeing with the intent of the Recommendation and stated that Nalcor had carried out public information sessions in Goose Bay on January 16, 2013 and had advised DFO that the NCC had been provided with an opportunity to meet with Nalcor to discuss the FHC Plan and EEM Plan, which meeting had not taken place. Canada had accordingly fulfilled its commitments in this regard.
[62] By email of May 31, 2013, DFO provided Nalcor with a draft of the Authorization and advised that it had completed its Aboriginal consultation related to the conditions of the Authorization, specifically the FHC and EEM Plans, and would be sending a letter outlining minor changes/clarifications needed prior to plan approval. On June 7, 2013, DFO sent Nalcor an email advising that there would be a requirement for some additions to the plans, in particular to EEM Plan, based on DFO’s consultation.
[63] On June 17, 2013, AMEC Environmental and Infrastructure (“AMEC”), as consultants for and on behalf of Nalcor, provided DFO with a revised EEM Plan. The accompanying email stated that the method sections of the 2011 a