Mikisew Cree First Nation v. Canadian Environmental Assessment Agency

Mikisew Cree First Nation v. Canadian Environmental Assessment Agency
Court (s) Database
Federal Court Decisions
Date
2022-02-04
Neutral citation
2022 FC 102
File numbers
T-481-19
Decision Content
Date: 20220204
Docket: T-481-19
Citation: 2022 FC 102
Ottawa, Ontario, February 4, 2022
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
MIKISEW CREE FIRST NATION
Applicant
and
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY, MINISTER OF ENVIRONMENT AND CLIMATE CHANGE, AND CANADIAN NATURAL RESOURCES LIMITED
Respondents
JUDGMENT AND REASONS
I. Nature of the Matter
[1] Mikisew Cree First Nation [Mikisew] applies for judicial review under section 18.1 of the Federal Courts Act, RSC, 1985 c F-7, of a decision of the Minister of Environment and Climate Change [Minister] dated February 15, 2019 [Decision]. In the Decision the Minister declined to designate Canadian Natural Resources Limited’s [CNRL] Horizon Oil Sands Mine North Pit Extension Project [Extension Project] as a reviewable project pursuant to subsection 14(2) of the now repealed Canadian Environmental Assessment Act, 2012, SC 2012 c 19, s 52 [Act].
[2] The Minister relied on the recommendation of the Canadian Environmental Assessment Agency [Agency] in making the Decision.
[3] Under subsection 14(2) of the Act, the Minister has discretion to designate a project not otherwise prescribed by the Regulations Designating Physical Activities, SOR/2012-147 [Regulations], “if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation.” A designation by the Minister triggers a federal environmental assessment.
[4] Mikisew submits that the Minister breached the duty to consult [DTC] in making the Decision and that the Decision is unreasonable.
[5] The Respondents submit that the DTC was not triggered, or in the alternative, the DTC was met, and the Decision is reasonable. The Respondents submit that the Minister has broad discretion when making a decision under the Act.
[6] I find that the DTC was not triggered. I further find that the Decision is reasonable. The application for judicial review is dismissed.
II. Background
[7] Mikisew is a successor to one of the Indigenous groups that signed or adhered to Treaty 8. Mikisew’s traditional territory is situated in Northeastern Alberta, including lands and waters around Lake Athabasca, the Peace-Athabasca Delta [PAD], and south to and including Fort McMurray and the Clearwater River.
[8] CNRL has an existing Horizon Oil Sands Mine Project [Horizon Mine Project] that is located approximately 70 kilometres north of Fort McMurray, Alberta, within the traditional lands of Mikisew. It was assessed by both Canada and Alberta as part of a Joint Review Panel and was approved by both governments in 2004. Construction began in 2005 and operations started in 2009. The Extension Project and an associated high temperature parafinnic froth treatment project [Froth Treatment Project] were not assessed as part of the original Horizon Oil Sands Project Joint Review Panel in 2004. This application only concerns the Decision not to designate the Extension Project.
[9] The Extension Project contemplates the expansion of the currently undeveloped North Pit by 3448 hectares within the Horizon Mine Project’s existing lease boundaries. The Extension Project is not described in the federal Regulations, therefore, it was not required to undergo a federal environmental assessment. It is, however, subject to a provincial environmental assessment [Provincial EA] by the Alberta Energy Regulator [AER].
[10] In November 2017, Mikisew received a copy of the proposed Terms of Reference [TOR] for the Environmental Impact Statement [EIS], which were drafted by CNRL. The TOR set the scope for the EIS, which forms the basis of the Provincial EA. Mikisew commissioned Management Strategies Environmental Solutions [MSES] to conduct a technical review of the TOR [TOR Review].
[11] In April 2018, the EIS was filed with the AER. Mikisew also commissioned MSES to conduct a technical review of the EIS [EIS Review].
[12] On July 5, 2018, Mikisew and other Indigenous groups submitted a request to the Minister that she designate the Extension Project for a federal environmental assessment under subsection 14(2) of the Act. They expressed concerns about significant adverse environmental effects of the Extension Project on the Athabasca River, Wood Buffalo National Park [WBNP] (part of which is a world heritage site), the PAD, and the cumulative effects on Aboriginal or Treaty rights. They also expressed concerns that the Provincial EA process could not adequately address the Extension Project’s potential environmental and cumulative effects. While the Minister also corresponded with these other Indigenous groups, for the purpose of this application, I will refer only to the correspondence between Mikisew and the Minister and/or the Agency.
[13] Under subsection 2(1) of the Act, a designated project is defined as one or more physical activities that:
a) are carried out in Canada or on federal lands;
b) are designated by the Regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
c) are linked to the same federal authority as specified in the Regulations or that order.
It includes any physical activity that is incidental to those physical activities.
[14] On July 24, 2018, the Agency notified Mikisew that it would be providing advice to the Minister on whether she should designate the Extension Project. The Agency invited Mikisew to provide comments on the potential environmental effects of the Extension Project, or the potential impacts of the Extension Project on Aboriginal or Treaty rights. The Agency requested that Mikisew provide its written views and comments on these issues by August 23, 2018.
[15] On August 23, 2018, Mikisew responded to the Agency by reiterating its concerns about the Extension Project’s impact on areas of federal jurisdiction including on fish and fish habitat, its impact on the tributaries around the Athabasca River, its effects on WBNP and the PAD, as well as its impacts on Aboriginal and Treaty rights. On this date, the Agency also provided Mikisew with a copy of CNRL’s submissions on whether the Extension Project should be designated.
[16] On August 27, 2018, Mikisew replied to CNRL’s submission and specifically took issue with the adequacy of the TOR and the EIS that CNRL had prepared. Mikisew provided the Agency with a copy of its TOR Review, prepared by MSES. Mikisew also indicated that it had provided the AER with its recommendations on how to address its concerns about the TOR but that the AER had rejected those concerns.
[17] In August 2018, Mikisew received a copy of a letter from Parks Canada providing its views on potential environmental impacts of the Extension Project. Relevant portions of the letter are set forth below:
… The project is located upstream of [WBNP] and the Wood Buffalo National Park World Heritage Site (WBNP WHS), and particularly the Peace Athabasca Delta (PAD).
Potential adverse environmental effects of the two projects, as defined under section 5 of [the Act], and related to Parks Canada's mandate and role as the State Party Lead for World Heritage in Canada, include:
· Water quality and quantity impacts with potential effects on Fish and Fish habitat, aquatic species, and migratory birds.
· Changes to federal lands ([WBNP])
· Effects on Indigenous current use of lands and resources for traditional purposes.
The PAD is located at the southern edge of WBNP at the confluence of the Peace, Slave, and Athabasca Rivers. The PAD is a vast inland delta, designated as a RAMSAR wetland of international significance. A recent Strategic Environmental Assessment (Independent Environmental Consultants, 2018) of the WBNP WHS highlighted a mixed understanding of PAD water quality and declining Athabasca River water quality. The proposed Project has the potential to contribute to water quality changes in the Athabasca River that may result in additional cumulative impacts on water quality within the PAD.
The PAD is also a critical traditional use area for local Indigenous groups. In December 2014, the Mikisew Cree First Nation (MCFN) petitioned the UNESCO World Heritage Centre (WHC) to have the [WBNP WHS] added to the list of World Heritage in Danger, due to their concerns that the impacts of existing and planned hydroelectric and oil sands projects, climate change, and inadequacies in management frameworks were compromising the World Heritage Values of the WBNP WHS and their ability to continue traditional practices in the area.
[18] On September 20, 2018, Mikisew and other Indigenous groups met with the Agency and other federal departments regarding its designation request and concerns about the Provincial EA. In October 2018, Mikisew provided additional submissions to the Agency on why the Froth Treatment Project should be considered part of the Extension Project and, therefore, also designated for a federal assessment.
[19] On December 20, 2018, the Agency prepared a memorandum [Memo #1] to the Minister synthesizing the Agency’s Analysis of Requests to Designate the Extension Project and Froth Treatment Program [Agency Analysis] under the Act. Mikisew did not receive a copy of the Agency Analysis until March 14, 2019. In Memo #1, the Agency recommended that the Minister decline to designate the Extension Project.
[20] On January 14, 2019, Mikisew provided the Agency with a copy of its EIS Review, prepared by MSES.
[21] On February 5, 2019, Mikisew wrote the Agency once again requesting that the Froth Treatment Project be designated as part of the Extension Project. Mikisew also summarized the contents of the EIS Review that it had provided earlier. In particular, Mikisew stated that the EIS is an incomplete document that does not address impacts on Aboriginal or Treaty rights.
[22] On February 12, 2019, the Agency submitted a memorandum [Memo #2] to the Minister. Memo #2 purported to provide additional information to the Minister in light of Mikisew’s EIS Review. The Agency maintained that the EIS Review did not change the Agency’s recommendation that the Minister decline to designate the Extension Project.
[23] On February 15, 2019, the Minister wrote to Mikisew advising that the Extension Project and the Froth Treatment Project would not be designated under the Act.
III. The Decision
[24] The Decision is reproduced in its entirety below:
Thank you for your letter of July 5, 2018, and communication during your meeting with [Agency] staff on September 20, 2018, requesting that I designate the [Extension Project] and the [Froth Treatment Project], proposed by [CNRL], for environmental assessment under subsection 14(2) of the [Act]. As requested, I considered the designation requests for the [Extension Project] and the Froth Treatment Project together.
I appreciate Mikisew Cree First Nation’s contributions to the [Agency’s] review of the [Extension Project] and Froth Treatment Project designation requests. I understand you expressed concerns regarding the potential for adverse environmental effects on fish and fish habitat, migratory birds, Indigenous health and reserve lands, and traditional use of lands and resources. You also raised concerns about cumulative environmental effects, impacts to Aboriginal or Treaty rights, and the adequacy of the provincial processes to assess impacts to Indigenous Peoples.
I carefully considered your requests to designate these activities, as well as input from Indigenous groups, provincial authorities, [CNRL], and scientific information provided by federal expert departments including Fisheries and Oceans Canada, Environment and Climate Change Canada, Natural Resources Canada, Health Canada, Transport Canada and Parks Canada. I understand that provincial assessment and federal and provincial regulatory mechanisms will be applied to these projects and that there are further efforts ongoing to monitor and address the broader cumulative effects of oil sands developments.
In making a determination on whether to designate these projects, I considered whether the projects may cause adverse environmental effects or whether concerns regarding those effects warrant designation. After also considering existing provincial assessment and federal and provincial regulatory mechanisms to mitigate any potential impacts associated with these projects, I have decided not to designate the [Extension Project] or the Froth Treatment Project for environmental assessment under [the Act].
I am confident that any potential effects to fish and fish habitat and migratory birds will be addressed through the [Provincial EA] under Alberta’s Environmental Protection and Enhancement Act, and federal and provincial regulatory requirements pursuant to the federal Fisheries Act, Migratory Birds Convention Act, 1994, and the existing Alberta Water Act approval for the Horizon Oil Sands Mine. I would also note that no air quality effects are predicted beyond 1 kilometre outside the lease boundary.
I encourage you to participate in the ongoing provincial assessment and regulatory processes so that your views can be considered.
With respect to your concerns about the cumulative effects of oil sands development, the Government of Canada, through the Memorandum of Understanding between Alberta and Canada Respecting Environmental Monitoring or Oil Sands Development, is committed to working with Indigenous groups, stakeholders and environmental agencies to provide comprehensive environmental monitoring data and information to improve understanding of the long-term cumulative effects of oil sands development. Under this agreement, Environment and Climate Change Canada has recently invested up to $2 million annually to assist local Indigenous groups to design and implement community-based environmental monitoring projects.
In addition, Parks Canada is leading a collaborative effort with Indigenous communities and provincial and territorial governments to implement an action plan for [WBNP]. The involvement of Indigenous communities helped ensure Indigenous peoples’ histories and cultures, as well as the special relationship Indigenous peoples have with traditional lands and waters, are reflected in the action plan.
I appreciate you bringing your concerns to my attention and to continued work with you and your community to advance these important initiatives.
[Emphasis added.]
[25] The Decision was based on the recommendation of the Agency which was, in turn, based on the Agency Analysis. The analysis portion of the Agency Analysis consists of eight pages, including a discussion of the context within which the Extension Project is situated and the views of Indigenous groups, CNRL, and several federal agencies. The Agency Analysis then considers these views and provides its own analysis of effects on fish and fish habitat; migratory birds; federal lands; greenhouse gas emissions; effects on Indigenous health, socio-economic conditions, current use of lands and resources for traditional purposes, physical and cultural heritage, and sites of significance.
IV. Relevant Statutory Provisions
[26] The relevant sections of the Act are:
Environmental effects
Effets environnementaux
5 (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are
5 (1) Pour l’application de la présente loi, les effets environnementaux qui sont en cause à l’égard d’une mesure, d’une activité concrète, d’un projet désigné ou d’un projet sont les suivants :
(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
a) les changements qui risquent d’être causés aux composantes ci-après de l’environnement qui relèvent de la compétence législative du Parlement :
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(i) les poissons et leur habitat, au sens du paragraphe 2(1) de la Loi sur les pêches,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(ii) les espèces aquatiques au sens du paragraphe 2(1) de la Loi sur les espèces en péril,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iii) les oiseaux migrateurs au sens du paragraphe 2(1) de la Loi de 1994 sur la convention concernant les oiseaux migrateurs
(iv) any other component of the environment that is set out in Schedule 2;
(iv) toute autre composante de l’environnement mentionnée à l’annexe 2;
(b) a change that may be caused to the environment that would occur
b) les changements qui risquent d’être causés à l’environnement, selon le cas :
(i) on federal lands,
(i) sur le territoire domanial,
(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or
(ii) dans une province autre que celle dans laquelle la mesure est prise, l’activité est exercée ou le projet désigné ou le projet est réalisé,
(iii) outside Canada; and
(iii) à l’étranger;
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
c) s’agissant des peuples autochtones, les répercussions au Canada des changements qui risquent d’être causés à l’environnement, selon le cas :
(i) health and socio-economic conditions,
(i) en matière sanitaire et socio-économique,
(ii) physical and cultural heritage,
(ii) sur le patrimoine naturel et le patrimoine culturel,
(iii) the current use of lands and resources for traditional purposes, or
(iii) sur l’usage courant de terres et de ressources à des fins traditionnelles
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
(iv) sur une construction, un emplacement ou une chose d’importance sur le plan historique, archéologique, paléontologique ou architectural.
[…]
[…]
Designation of physical activity as designated project
Activités désignées comme projet désigné
14 (1) A designated project that includes a physical activity designated under subsection (2) is subject to an environmental assessment.
14 (1) Tout projet désigné qui comprend une activité désignée en vertu du paragraphe (2) doit faire l’objet d’une évaluation environnementale.
Minister’s power to designate
Pouvoir du ministre de designer
(2) The Minister may, by order, designate a physical activity that is not prescribed by regulations made under paragraph 84(a) if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation.
(2) Le ministre peut, par arrêté, désigner toute activité concrète qui n’est pas désignée par règlement pris en vertu de l’alinéa 84a), s’il est d’avis que l’exercice de l’activité peut entraîner des effets environnementaux négatifs ou que les préoccupations du public concernant les effets environnementaux négatifs que l’exercice de l’activité peut entraîner le justifient.
V. Issues and Standard of Review
[27] The issues are:
Was the DTC triggered and, if so, was it adequately discharged?
Was the Decision reasonable?
[28] At paragraphs 82-83 of Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758 [Ermineskin] Justice Brown set out the applicable standards of review concerning designation decisions that engage the DTC:
The existence, extent, and content of the duty to consult are legal questions reviewable on the standard of correctness. Whether or not the Minister fulfilled the duty to consult is reviewable on a standard of reasonableness. See Ehattesaht First Nation v British Columbia (Minister of Forests, Lands and Natural Resource Operations), 2014 BCSC 849 at para 45 [Ehattesaht] citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 61 [Haida Nation]; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 27 citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 55 [Vavilov].
The Respondent Minister agrees, and says the scope of Aboriginal and Treaty rights under section 35 of the Constitution, is reviewable on the correctness standard (Vavilov at para 55). He says the duty to consult flows from the honour of the Crown and is constitutionalized by section 35 (Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 78), and I agree. Therefore, whether a duty to consult exists in any particular case is a question of law reviewed on the standard of correctness (Yellowknives Dene First Nation v Canada (Minister of Aboriginal Affairs and Northern Development), 2015 FCA 148 at paras 46-47). Whether the consultation provided was sufficient to meet that duty is reviewed on the standard of reasonableness (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at paras 24-25).
[29] Accordingly, whether the DTC was triggered is reviewable on a standard of correctness while the satisfaction of the DTC is reviewable on a standard of reasonableness.
[30] The merits of the Decision are also reviewable on a standard of reasonableness. A reviewing Court must assess the decision-maker’s reasoning process and ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99 [Vavilov]).
VI. Preliminary Matter – Admissibility of Affidavits
[31] Generally, only the evidentiary record before the administrative decision-maker is admissible before the reviewing court. In this case, Mikisew has filed the following affidavits that were not before the Minister:
Melody Lepine, Executive Director of Mikisew’s Government and Industry Relations Office;
Dan Stuckless, Industry Relations Manager with Mikisew’s Government and Industry Relations Office; and
Brian Kopach, an ecologist and scientific advisor with MSES.
[32] In Tseil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 [Tseil-Waututh], at paragraphs 97-98, the Federal Court of Appeal listed three exceptions to the general rule that new evidence is not admissible on judicial review: (1) evidence that provides general background in circumstances where that information might assist in understanding the issues relevant to the judicial review; (2) evidence necessary to bring to the attention of the court procedural defects not found in the evidentiary record of the administrative decision-maker; and (3) evidence to highlight the complete absence of evidence before the administrative decision-maker.
[33] Mikisew concedes that the Kopach affidavit can be struck from the record. The Respondents submit that significant portions of the Lepine and Stuckless affidavits are inadmissible.
[34] CNRL submits that Mikisew wants this Court to step into the shoes of the Minister, exercise her discretionary authority and do so upon different criteria and a different record. CNRL says that allowing these affidavits to stay on the record results in significant prejudice to the Respondent and distorts the facts that were before the Minister when she made the Decision.
[35] The Agency and the Minister [together, Canada] agree with CNRL that Mikisew is asking this Court to reweigh the evidence that was before the Minister. Canada submits that the Lepine and Stuckless affidavits do not fall into any of the exceptions articulated in Tseil-Waututh and should not be admissible except to the extent that they go to the DTC.
[36] Mikisew submits that the affidavit evidence is admissible because it provides background information and speaks to the DTC.
[37] I agree that the Lepine and Stuckless affidavits should be admitted only to the extent that they provide background information and information that goes to Mikisew’s submissions on the DTC. As such, any exhibits from the Lepine and Stuckless affidavits, to the extent that they relate to the background information supporting the DTC submissions, will be considered. For example, many of the exhibits attached to these affidavits provide background information on the geographical areas Mikisew is alleging will suffer adverse effects, which will interfere with their Treaty rights.
[38] Further, I agree with Mikisew that the Wood Buffalo Action Plan [WBNP Action Plan] and the Memorandum of Understanding Respecting Environmental Monitoring of Oil Sands Development [MOU] are admissible because they were referred to and relied on in the Agency Analysis, and therefore, were arguably before the Minister.
[39] I agree with the Respondents, however, that some of the information in the affidavits constitutes opinion that should be given no weight. In summary, the Lepine and Stuckless affidavits are not struck in their entirety, but no weight will be afforded to information contained therein that goes to the merits of the Decision. In light of Mikisew’s concession that the Kopach affidavit is not being relied on, the Court will not consider it.
VII. Parties’ Positions
A. Was the DTC triggered and, if so, was it satisfied?
(1) Mikisew’s Position
[40] Mikisew submits that the DTC was triggered because the Crown had knowledge of Mikisew’s Treaty rights; the Minister made a statutory decision respecting whether or not to designate the Extension Project for a federal assessment; and the Decision had the potential to adversely impact Mikisew’s Treaty rights. Accordingly, this satisfies the test articulated in Rio Tinto Alcan v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto] for triggering the DTC.
[41] Mikisew submits that the Minister breached the DTC even on the low and most basic end of the consultation spectrum. Mikisew submits that the Crown was required to disclose information and discuss issues raised in response before making the Decision (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 43 [Haida Nation]). Mikisew submits that Canada breached the DTC because Canada failed to provide Mikisew with information it relied on, failed to provide Mikisew an opportunity to respond to Canada’s rationale for rejecting its request, and failed to do anything other than document Mikisew’s submissions.
[42] Mikisew submits that the DTC is triggered by a negative decision that does not entail the authorization of physical activities that may interfere with the exercise of section 35 rights. For example, in Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 [Coastal First Nations], the British Columbia Supreme Court found that British Columbia’s decision not to subject a project to a provincial EA in light of First Nations’ concerns triggered the DTC (at paras 210-213).
[43] Mikisew submits that the Minister has not satisfied the DTC for four reasons. First, the Minister did not disclose Memo #1 or Memo #2, the two primary documents relied upon to make the Decision. Mikisew also submits that neither of these documents responded to their concerns. Memo # 1 was a synthesis of the Agency’s Analysis Report and Memo #2 was an update based on Mikisew’s EIS Review. Mikisew says that neither the Analysis Report nor the information collected by the Agency about environmental impacts were disclosed to Mikisew prior to the Decision. Mikisew submits this is a problem because the Agency’s recommendation contradicts the information provided by Mikisew and federal departments. Mikisew submits that withholding the information prevented Mikisew from:
bringing information to the attention of the Minister that could have informed the decision making process;
correcting errors in the Agency Analysis;
responding to the Agency Analysis;
providing feedback on information that informed the Agency’s recommendation to the Minister; and
providing feedback on the Agency’s recommendation that the Extension Project not be designated for a federal environmental assessment.
[44] Second, Mikisew alleges that the Minister failed to engage in meaningful dialogue with Mikisew with the intent to resolve concerns prior to making the Decision. Mikisew submits that the record shows no consideration of Mikisew’s concern about the need for the Decision to ensure Canada’s ability to safeguard the WBNP. Mikisew says that there was no dialogue about this issue until Parks Canada made similar submissions and those submissions were rejected. Parks Canada submitted that a federal assessment would help in understanding the potential effects on the WBNP.
[45] Mikisew further submits that the Minister failed to respond to Mikisew’s information that the TOR and the EIS did not consider the Project’s effects on WBNP as identified by Mikisew and other federal departments.
[46] Finally, Mikisew says the Minister failed to respond to or even grapple with Mikisew’s information that the AER excludes consideration of cumulative effects on WBNP and Aboriginal and Treaty rights.
(2) CNRL
[47] CNRL submits that Mikisew’s designation request did not trigger the DTC because it did not authorize physical activities or remove government oversight. Therefore, it does not result in any adverse effects that could impact any Aboriginal or Treaty rights. Further, even though the DTC was not triggered, “thorough engagement” with Mikisew occurred and the process informing the Decision was reasonable.
[48] CNRL makes no submissions on the first part of the Rio Tinto framework. With respect to the second step, CNRL submits that absent the designation request, there would be no Crown conduct. Therefore, because Mikisew started the process, administrative law principles apply rather than the DTC.
[49] Regarding the third part of the Rio Tinto framework, CNRL submits that the requisite causal connection is not present and the alleged potential impacts are speculative at best. CNRL submits that none of the alleged potential impacts affect Mikisew’s ability to exercise Aboriginal or Treaty rights. Rather, the alleged impacts relate to the extent of the federal government’s involvement in the process. CNRL submits that the purpose of the DTC cannot be to ensure federal involvement and oversight in a project development because this ignores Parliament’s express intent in the Act not to require a designation for every project.
[50] CNRL submits that Coastal First Nations is distinguishable from the present case in several respects: the project required both mandatory provincial and federal environmental assessments; the Crown conduct was British Columbia’s abdication of its regulatory authority in favour of the federal process; and the adverse effect was the reduction in British Columbia’s ability to ensure that Indigenous interests relating to British Columbia’s environmental assessment process were discharged within the federal process.
[51] CNRL also submits that, alternatively, if the DTC was triggered it was at the low end of the spectrum and was met. Mikisew received notice of the decision being contemplated, adequate information about the Extension Project, copies of submissions made to the Minister, the opportunity to respond to those submissions, the opportunity to meet the Minister in person, careful consideration of Mikisew’s submissions, timely notice of the decision, and adequate reasons in writing. CNRL submits that Mikisew raised no concerns with the process being followed until after the Decision was made.
[52] CNRL further submits that White River First Nation v Yukon Government, 2013 YKSC 66 [White River], cited by Mikisew for the proposition that the Minister ought to have disclosed the Agency Analysis, is distinguishable from the present matter. Specifically, CNRL states that the Court in White River found that if a decision-maker is going to reject the recommendation of its consultation office in favour of new evidence, the decision-maker must allow the First Nation to respond to that new evidence. In this case, there was no new information considered and no rejection of a recommendation from the Agency. CNRL submits that the Minister’s failure to provide the Agency Analysis does not amount to Mikisew being deprived of having its say.
(3) Canada
[53] Canada acknowledges that it had actual knowledge of Mikisew’s Treaty rights pursuant to Treaty 8 but it submits that the Decision does not involve contemplated federal Crown conduct that could affect any of Mikisew’s rights. Canada claims that the approval of the Extension Project by the AER is what has the potential to affect Mikisew’s rights, but the threshold question of whether a federal assessment should be required does not. Canada submits that it does not have a DTC in respect of Alberta Crown decisions or conduct that may adversely affect those Aboriginal or Treaty rights. Canada submits that if Mikisew finds the Provincial EA to be inadequate, its remedy lies in challenging those processes.
[54] Canada concedes that “strategic higher-level decisions” can trigger the DTC but states that this is only true where such decisions set the stage for future decisions (Rio Tinto at para 44). Mikisew cites cases where preliminary planning decisions attracted the DTC but, unlike the present matter, they all concerned governmental decisions that set the stage for further decisions by the same level of government. Therefore, they are not analogous.
[55] Like CNRL, Canada submits that Mikisew’s reliance on Coastal First Nations is misplaced. The federal government lacks statutory authority to impose conditions on a project if the federal government declines to designate that project. Canada states that Coastal First Nations does not stand for the proposition that Canada’s potential inability to impose conditions on CNRL triggers the DTC. Canada agrees with CNRL that Coastal First Nations is distinguishable because it concerned the provincial government abdicating legislative authority to impose conditions. Canada says that, in any event, the correctness of Coastal First Nations has been questioned in subsequent decisions of the British Columbia courts and it is not binding on this Court.
[56] Canada argues that the asserted potential effects pertain to the AER’s potential approval of the Extension Project, which does not involve Canada. Canada says Mikisew’s preference for having federal expert evidence presented in the Provincial EA is irrelevant and so is Mikisew’s preference for the rigour of a federal assessment over a provincial assessment.
[57] Alternatively, Canada submits that if the DTC was triggered, the duty was met. It submits that Mikisew was only entitled to notice, disclosure of information, and the discussion of issues (Haida Nation at para 43) and there was no obligation to provide Mikisew with a copy of the Agency’s two Memos or the Agency Analysis. It says that Mikisew provided its comments and those were considered by the Agency. Canada says the opportunity to provide comments on the analysis of comments is not required. It says Mikisew had a substantive opportunity to provide its position, was aware of the information being considered, and had the opportunity to respond.
[58] Further, Canada submits that Mikisew does not provide any information on how deeper consultation would have changed matters. It contends that Mikisew suggests it would only re-emphasize its concerns.
B. Is the Decision Reasonable?
(1) Mikisew
[59] Mikisew submits that the Decision is unreasonable for four reasons.
[60] First, the Decision relies on the TOR, EIS, and the Provincial EA to assess impacts on areas of federal jurisdiction without considering the flaws in those documents and contradictory evidence as raised by Mikisew. According to Mikisew, “the primary pillar” of the Decision is the Minister’s confidence that the TOR, EIS, and Provincial EA process will assess the effects of the Extension Project on areas of federal jurisdiction. Accordingly, the Minister’s failure to mention the TOR Review, nominal acknowledgment of the EIS Review, and failure to grapple with Mikisew’s concerns with the Provincial EA process “call into question whether the decision maker was actually alert and sensitive to the matter before it” (Vavilov at para 128).
[61] Second, the Decision ignores information about the fragile ecological state of WBNP and the PAD found in the Strategic Environmental Assessment [SEA] for the WBNP. The SEA was created in May 2018 for Parks Canada and given to the Minister before the Decision was made. The SEA arose out of the World Heritage Committee’s request for Canada to undertake the work to assess the cumulative impacts of all developments on the WBNP World Heritage Site [WBNP WHS]. The World Heritage Committee’s request arose out of Mikisew’s petition to have WBNP added to the List of World Heritage in Danger. However, the findings of the SEA were not included in the Analysis Report nor the Minister’s reasons for the Decision. This oversight renders the Decision unreasonable.
[62] Third, the Decision fails to consider the opinions of Parks Canada and Environment and Climate Change Canada [ECCC], which contradict the Agency’s conclusion that adverse environmental effects on WBNP are unlikely. Parks Canada stated that the Project may have adverse effects on WBNP and ECCC indicated that Lake Athabasca, which is linked to the PAD and the WBNP, is experiencing declining water levels. Further, additional water withdrawals may contribute to negative cumulative effects in the region. ECCC also made a number of other findings related to migratory birds, air quality, and hydrology. The Agency ignored or summarily dismissed this contradictory evidence, which renders the Decision unreasonable.
[63] Finally, the Minister unreasonably relied on irrelevant facts including the MOU and the WBNP Action Plan. The Minister relied on the MOU to address Mikisew’s concerns regarding cumulative impacts on traditional and cultural uses and Aboriginal and Treaty rights. However, the MOU contains no information, or measures specific to the Extension Project, and is thus irrelevant to whether a federal environmental assessment would assist in understanding and assessing the Extension Project’s effects on areas of federal jurisdiction. Likewise, the WBNP Action Plan is irrelevant because it contains no measures to address potential adverse effects of the Extension Project.
(2) CNRL
[64] CNRL disagrees that the Minister ignored evidence and improperly relied on other documents.
[65] First, failing to reference the TOR Review, the EIS Review, or the SEA in the Minister’s reasons does not mean the Minister failed to consider the contents of those documents and does not render the Decision unreasonable. The Applicant has misrepresented the law in this regard. A decision-maker’s reasons should not be held against a standard of perfection (Vavilov at para 91).
[66] The record clearly demonstrates that Mikisew’s concerns were documented (in the Analysis Report, Memo #1, and Memo #2) and communicated to the Minister. In her reasons, the Minister acknowledged that Mikisew raised concerns about the impacts to Aboriginal and Treaty rights as well as the “adequacy of the provincial process to assess impacts to Indigenous Peoples.” Likewise, the Analysis Report and Memo #1 considered Mikisew’s concerns and Parks Canada’s views about WBNP. The Minister did not ignore this evidence – she simply rejected it and found that provincial measures would be sufficient.
[67] Additionally, it was reasonable for the Minister to rely on the MOU and the WBNP Action Plan. These are both fede