Courtoreille v. Canada (Aboriginal Affairs and Northern Development)

Courtoreille v. Canada (Aboriginal Affairs and Northern Development)
Court (s) Database
Federal Court Decisions
Date
2014-12-19
Neutral citation
2014 FC 1244
File numbers
T-43-13
Decision Content
Date: 20141219
Docket: T-43-13
Citation: 2014 FC 1244
Toronto, Ontario, December 19, 2014
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
CHIEF STEVE COURTOREILLE ON
BEHALF OF HIMSELF AND THE MEMBERS
OF MIKISEW CREE FIRST NATION
Applicant
and
THE GOVERNOR GENERAL IN COUNCIL,
MINISTER OF ABORIGINAL AFFAIRS AND
NORTHERN DEVELOPMENT, MINISTER
OF FINANCE, MINISTER OF THE
ENVIRONMENT, MINISTER OF FISHERIES
AND OCEANS, MINISTER OF TRANSPORT,
AND MINISTER OF NATURAL RESOURCES
Respondents
JUDGMENT AND REASONS
[1] The Mikisew Cree First Nation has historically occupied and harvested lands located within the Peace-Athabasca Delta and Lower Athabasca River regions, now forming part of north-eastern Alberta and neighbouring areas. In 1899, the Mikisew and other First Nations entered into a treaty with Her Majesty, Treaty No. 8, wherein the First Nations ceded to Her Majesty certain lands in exchange for certain guarantees. The rights of the First Nations and guarantees made under Treaty No. 8 have been the subject of several decisions of the Canadian Courts.
INDEX
[2] The following is an Index to these Reasons:
HEADING
PARAGRAPH NUMBER
I. OVERVIEW
3 to 7
II. THE PARTIES
8 to 9
III. THE EVIDENCE
10 to 12
IV. THE FACTS
13
V. ISSUES
14 to 15
VI. NATURE OF THE PROCEEDINGS
16 to 19
VII. DOES SUBSECTION 2(2) OF THE FEDERAL COURTS ACT PRECLUDE THESE PROCEEDINGS?
20 to 22
VIII. DO THESE PROCEEDINGS PRESENT A JUSTICIABLE ISSUE?
23 to 29
IX. FEDERAL LAW – MAKING PROCESS AND ASSOCIATED SUPPORT ACTIVITIES
30 to 36
X. JURISPRUDENCE AS TO THE POINT AT WHICH THE COURT MAY ORDER INTERVENTION IN THE LAW-MAKING PROCESS
37 to 72
XI. DUTY TO CONSULT
73 to 82
XII. IS THE DUTY TO CONSULT TRIGGERED IN THIS CASE?
83 to 99
XIII. WHAT IS THE EXTENT OF THE DUTY TO CONSULT?
100 to 104
XIV. WHAT RELIEF, IF ANY, SHOULD THE COURT PROVIDE?
105 to 109
XV. CONCLUSIONS AND COSTS
110 to 111
I. OVERVIEW [3] On April 26, 2012, the federal Minister of Finance introduced Bill C-38, often called the first Omnibus Bill, in Parliament. It received Royal Assent on June 29, 2012. A second Omnibus Bill, Bill C-45, was introduced by the Minister of Finance in Parliament on October 18, 2012. It received Royal Assent on December 14, 2012. The Mikisew were not consulted prior to the introduction of either Bill in Parliament.
[4] The Omnibus Bills introduced new and amended legislation, some, but not all, of which dealt with financial matters. For the purpose of this application, the Omnibus Bills made significant changes to Canada’s environmental laws. The Omnibus Bills amended the Fisheries Act, RSC 1985, c F-14, the Species At Risk Act, SC 2002, c 29, the Navigable Waters Protection Act, RSC 1985, c N-22, including renaming the latter act as the Navigation Protection Act, RSC, 1985, c N-22 and finally. repealing the Canadian Environmental Assessment Act, 1992, SC 1992, c 37, and replacing it with the Canadian Environmental Assessment Act, 2012, SC 2012, c 19. The effect of the amendments to those Acts is arguably to reduce the number of bodies of water within Canada which are required to be monitored by federal officials thereby affecting fishing, trapping and navigation. Some of these waters are located within the Mikisew’s Treaty No. 8 territory.
[5] Accordingly, the Mikisew, as represented by their Chief, Steve Courtoreille, have instituted these proceedings, seeking various forms of declaratory relief. The relief sought is summarized at paragraph 1 of the Applicant’s Reply Memorandum:
…this Court is not being asked to intervene in the Process of Parliament, which may engage the separation of powers, but to superintend the duties of the crown and executive before legislation is introduced into Parliament. That is, Mikisew’s claim does not seek to impose a duty to consult on Parliament, but on the Crown. Mikisew’s claim does not require an inquiry into the conduct of Parliament, but of the executive.
[6] In particular, the relief requested by the Applicant as set out in his Memorandum of Argument is:
a. A declaration that all or certain of the Ministers have a duty to consult with Mikisew regarding the development of the Federal Environmental Laws reflected in the Omnibus Bills;
b. A declaration that all or certain of the Ministers had and continue to have a duty to consult with Mikisew regarding the development and introduction of the Omnibus Bills, to the extent that the Bills had the potential to affect Mikisew’s treaty rights through changes to the Federal Environmental Laws;
c. A declaration that all or certain of the Ministers breached, and continue to breach, their duty to consult Mikisew regarding the Federal Environmental Laws, including those advanced in the Omnibus Bills;
d. A declaration that the Ministers and the Governor General in Council are required to consult with Mikisew regarding the matters set out above to ensure that Canada implements whatever measures are necessary to fulfill its obligations under Treaty 8;
e. An order that the Ministers not take any further steps or actions that would reduce, remove, or limit Canada’s role in any environmental assessment that is being carried out, or that may be carried out in the future, in Mikisew’s traditional territory until adequate consultation is complete;
f. Any such directions as may be necessary to make this order effective;
g. An order that any party may apply to the Court for further directions with respect to the conduct of the consultation as may be necessary;
h. An order for costs of and incidental to this application; and
i. Such further and other relief as this Honourable Court deems appropriate and just.
[7] For the Reasons that follow, I have determined that I will give a Direction in specific terms.
II. THE PARTIES [8] The Applicant, Chief Steve Courtoreille, represents himself and the members of the Mikisew Cree First Nation. I will sometimes refer to the Applicant as the Mikisew.
[9] The Respondents are the Governor General in Council and various Ministers of the federal government. They are represented collectively by Counsel from the Deputy Attorney General’s office of the Department of Justice. The Mikisew’s Counsel stated that they named the various Respondents in their Notice of Application in order to capture those persons in government who develop the policy behind the relevant legislation before it is formulated and introduced into Parliament. The Respondents argue that, in the law-making process, these Ministers were acting in their legislative capacity and, as such, their actions or decisions are excluded from judicial review. In the alternative, the Respondents argue that if the Court has jurisdiction over the issues brought before it, the Applicant failed to meet the test set out by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 and explained in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 2 SCR 650 to establish the existence of a duty to consult in this case. The Respondents’ Counsel suggested that they could be referred to collectively as the Crown.
III. THE EVIDENCE [10] Since this is an application, the evidence was provided in the form of affidavits with exhibits. There was cross-examination on some of these affidavits and the transcripts were filed in the record.
[11] The Applicant provided the affidavit evidence of:
• Arthur J. Ray, Fellow of the Royal Society of Canada and professor emeritus of history, University of British Columbia, who provided a report as to the negotiations leading up to Treaty No. 8.
• Donald J. Savoie, Canada Research Chair in Public Administration and Governance, Université de Moncton. He provided a Report on Public Consultation in the law-making process in Canada. He was cross-examined.
• Rita Marten, former chief of the Mikisew. She provided history and background for the Mikisew claim.
• Keith Stewart, an employee of Greenpeace Canada as co-ordinator of its climate and energy campaign. Only his cross-examination is in the record. Counsel for the parties agreed that they are not relying upon his evidence.
• Steve Courtoreille, Chief of Mikisew First Nation and the named Applicant. He provided two affidavits setting out the history of the Mikisew and the basis for their claim in these proceedings. He was cross-examined.
• Trish Merrithew-Mercredi, who has worked with the Mikisew in various capacities for more than 20 years. She provided history and background respecting the Mikisew and their claim.
• Rachel Sara Forbes, staff counsel for West Coast Environmental Law Association. She provided evidence as to environmental impact of the Bills and legislation at issue. She was cross-examined.
[12] The Respondents filed the affidavit evidence of:
• Terrence Hubbard, Director General of Strategic Policy and Planning at the Major Projects Management Office of the federal government. He provided background as to the various statutes at issue. He was cross-examined.
• Douglas Nevison, General Director of the Economic and Fiscal Policy Branch of the Department of Finance Canada. He gave evidence as to Canada’s budget process and other economic and financial matters. He was cross-examined.
• Stephen Chapman, Associate Director, Regional Operations with the Canadian Environmental Agency. He gave background evidence as to environmental assessments. He was cross-examined.
• Kevin Stringer, Acting Senior Assistant Deputy Minister with the Ecosystems and Fisheries Management Sector of the Department of Fisheries and Oceans. He gave evidence as to fisheries management by the federal government. He was cross-examined.
• Teresa Martin, paralegal with the Department of Justice Canada, Edmonton Regional Office who provided information about the current state of Alberta’s consultation policy as well as its environmental assessment and regulatory process.
• Lauren Kirk: Counsel have agreed that neither party will rely on her evidence. The same agreement is made in respect of the evidence of Gillian Cantello.
IV. THE FACTS [13] Despite the volume of evidence, the underlying facts necessary in considering the issues are few and not in dispute. I will go into more detail in respect of some of these facts later in these Reasons. For the moment, these are some of the facts:
1. The Mikisew are a First Nations Aboriginal band whose traditional lands are located within the Peace-Athabasca Delta and Lower Athabasca River regions located in north eastern Alberta and neighbouring regions.
2. These traditional lands are well watered with rivers and lakes which have provided the Mikisew with abundant fishing, trapping and navigation.
3. The Mikisew, along with other First Nations, entered into a treaty with Her Majesty in 1899, whereby land claims to the territory by those First Nations were ceded to the Crown in exchange for certain guarantees from the Crown.
4. This treaty, called Treaty No. 8, included the following provision:
And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.
5. Since the 1900’s, the Mikisew lands have been subjected to changes caused by non-Mikisew persons, including those caused by the construction of the W.A.C. Bennett Dam in British Columbia, and those caused by oil exploration.
6. Over the past several decades, Canada has, through its various environmental laws and agencies, done much to protect fishing, trapping and navigation in the Mikisew’s traditional territory.
7. Canada has, from time to time, consulted with the Mikisew about proposed development in the Mikisew’s territory.
8. Canada has developed and published the Aboriginal Consultation and Accommodation, updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011), which is to be followed in respect of consultation by federal departments with Aboriginal communities.
9. Canada has also developed and published the Cabinet Directive on Law-making setting out Cabinet’s expectations of Ministers, departments and public servants with respect to the legislative process.
10. Canada has also developed and published the Guide to Making Federal Acts and Regulations issued by the Privy Council’s Office providing detailed guidance to implement the above-referenced Cabinet Directive as to Canada’s law-making process. That Guide includes a schematic map which sets out the steps involved in law-making.
11. On April 26, 2012, the federal Minister of Finance introduced Bill C-38 (Jobs, Growth and Long Term Prosperity Act), which was given Royal Assent on June 29, 2012. The Minister introduced a further bill, Bill C-45 (Jobs and Growth Act), on October 18, 2012, which received Royal Assent on December 14, 2012. These Bills are referred to in these proceedings as the Omnibus Bills and, as enacted, as the Acts.
12. The Omnibus Bills introduced and amended various federal statutes – some, but not all of which, dealt with financial matters. Among the statutes affected were the Fisheries Act, RSC 1985, c F-14 and the Navigable Waters Protection Act, RSC 1985, c N-22, renamed as the Navigation Protection Act, RSC 1985, c N-22 which, among other things, implemented a reduction in the inland waterways monitored by federal agencies. I discuss the relevant provisions of the Omnibus Bills later in these Reasons.
13. The Mikisew were not consulted prior to the introduction of either of the Omnibus Bills in Parliament, nor during the process in Parliament resulting in the Bills receiving Royal Assent.
14. The Mikisew fear that the reduction of monitoring by federal agencies of several waterways within their territory will have a serious impact on fishing, trapping and navigation.
15. The Respondents dispute the Mikisew’s fears, saying that they are speculative and that, in fact, in some respects the Acts provide benefits not previously enjoyed.
V. ISSUES [14] The Applicant has raised the following issues:
1. Whether there is a duty to consult in respect of the development of the changes to the Federal Environmental Laws introduced through the Omnibus Bills;
2. If so, whether the duty to consult was breached; and
3. If so, what is the appropriate remedy?
[15] The Respondents have cast their issues somewhat differently:
1. Is this a proper judicial review with respect to:
a) The constitutional role of the Courts in the law-making process?
b) The judicial review jurisdiction of the Federal Court pursuant to the Federal Courts Act, RSC 1985, c F-7?
2. If the answer to both questions is yes, did the law-making process that culminated in the Acts trigger the duty to consult?
3. If the duty to consult has been triggered by the law-making process and the Court finds a breach of said duty, what is the appropriate remedy?
VI. NATURE OF THE PROCEEDINGS [16] This is an application brought under the provisions of Sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7. This is not a review of any decision or order of a federal board, etc., rather, it is an application for declaratory relief and an injunction against the various Ministers of the Crown and Governor General in Council respecting legislation and proposed legislation.
[17] As stated by Stratas JA in Air Canada v Toronto Port Authority (2011), [2013] 3 FCR 605 (CA), Sections 18 and 18.1 of the Federal Courts Act go beyond simply reviews of decisions or orders of a federal board, and extend to anything that triggers a right to a judicial review. I repeat what he wrote at paras 24 to 30:
24 Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by "the matter in respect of which relief is sought." A "matter" that can be subject of judicial review includes not only a "decision or order," but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light on this, referring to relief for an "act or thing," a failure, refusal or delay to do an "act or thing," a "decision," an "order" and a "proceeding." Finally, the rules that govern applications for judicial review apply to "applications for judicial review of administrative action," not just applications for judicial review of "decisions or orders": Rule 300 of the Federal Courts Rules.
25 As far as "decisions" or "orders" are concerned, the only requirement is that any application for judicial review of them must be made within 30 days after they were first communicated: subsection 18.1(2) of the Federal Courts Act.
26 Although the parties and the Federal Court judge focused on whether a "decision" or "order" was present, in substance they were addressing something more basic: whether, in issuing the bulletins and in engaging in the conduct described in the bulletins, the Toronto Port Authority had done anything that triggered any rights on the part of Air Canada to bring a judicial review.
27 On this, I agree with the respondents' submissions and the Federal Court judge's holding: in issuing the bulletins and in engaging in the conduct described in the bulletins, the Toronto Port Authority did nothing to trigger rights on the part of Air Canada to bring a judicial review.
28 The jurisprudence recognizes many situations where, by its nature or substance, an administrative body's conduct does not trigger rights to bring a judicial review.
29 One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.
30 The decided cases offer many illustrations of this situation: e.g., 1099065 Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 47, 375 N.R. 368 (an official's letter proposing dates for a meeting); Philipps v. Canada (Librarian and Archivist), 2006 FC 1378, [2007] 4 F.C.R. 11 (a courtesy letter written in reply to an application for reconsideration); Rothmans, Benson & Hedges Inc. v. Minister of National Revenue, [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.) (an advance ruling that constitutes nothing more than a non-binding opinion).
[18] Counsel for the Applicant suggested that these proceedings can be considered as if they were questions of law, since there are few facts in controversy.
[19] The issue is not one of a standard of review of a decision, rather, it is a de novo consideration of the circumstances and applicable law in this particular case.
VII. DOES SUBSECTION 2(2) OF THE FEDERAL COURTS ACT PRECLUDE THESE PROCEEDINGS? [20] Subsection 2(1) of the Federal Courts Act, RSC 1985, c F-7, provides a definition of “federal board”, commission or other tribunal” and subsection 2(2) qualifies that definition:
2. (1) In this Act,
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
2. (2) For greater certainty, the expression “federal board, commission or other tribunal”, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House, the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner with respect to the exercise of the jurisdiction or powers referred to in sections 41.1 to 41.5 and 86 of the Parliament of Canada Act.
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
(2) Il est entendu que sont également exclus de la définition de « office fédéral » le Sénat, la Chambre des communes, tout comité ou membre de l’une ou l’autre chambre, le conseiller sénatorial en éthique et le commissaire aux conflits d’intérêts et à l’éthique à l’égard de l’exercice de sa compétence et de ses attributions visées aux articles 41.1 à 41.5 et 86 de la Loi sur le Parlement du Canada.
[21] To the extent that these proceedings could be said to engage the Parliamentary process engaged in by the Respondents, the parties are agreed that subsection 2(2) of the Federal Courts Act would be preclusive. However, Applicant’s Counsel argues that it is not the legislative duties of the Respondents that are at issue, rather, it is the policy consideration, formation and proposal to undertake the legislative functions of the Respondents that are at issue.
[22] While I take issue with the Applicant’s characterization of the decisions as executive rather than legislative in nature later in these Reasons, the Applicant does not seek judicial review of (1) the content of the Omnibus Bills before they became law, (2) any decision of a Member of Parliament or Parliamentary committee upon the Omnibus Bills’ introduction into Parliament or (3) any particular decision of a Minister or Minister’s officials in implementing legislation. The Applicant is seeking to engage the process that Ministers of the Crown undertake before legislation has been drafted and presented to Parliament. As such, I conclude that these proceedings are not precluded by subsection 2(2) of the Federal Courts Act.
VIII. DO THESE PROCEEDINGS PRESENT A JUSTICIABLE ISSUE? [23] The Courts have been assiduous in respecting the different roles of the legislative, executive and judicial roles of government. Justice Karakatsanis, of the Supreme Court of Canada, in Ontario v Criminal Lawyers’ Association of Ontario, [2013] 3 SCR 3, clearly distinguished between these separate executive, legislative and judicial functions stating that one branch should not unduly interfere with another branch of government. She explained the principle of separation of powers at paragraphs 26 to 30:
26 [T]he powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation.
27 This Court has long recognized that our constitutional framework prescribes different roles for the executive, legislative and judicial branches (see Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469-70). The content of these various constitutional roles has been shaped by the history and evolution of our constitutional order (see Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at paras. 49-52).
(2) Separation of Powers
28 Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in the Crown to one in which the powers of the state were exercised by way of distinct organs with separate functions. The development of separate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutions vested with these functions. The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as only it can authorize the spending of public funds. The executive implements and administers those policy choices and laws with the assistance of a professional public service. The judiciary maintains the rule of law, by interpreting and applying these laws through the independent [page20] and impartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed under the Charter.
29 All three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, McLachlin J. affirmed the importance of respecting the separate roles and institutional capacities of Canada's branches of government for our constitutional order, holding that "[i]t is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other" (p. 389).3
30 Accordingly, the limits of the court's inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries.
[24] Thus respect for the principle of separation of powers ensures the preservation of the integrity of Canada’s constitutional order. Disrespect for this principle can upset the constitutional balance of these roles.
[25] The question as to whether an issue was justiciable so as to give the Court jurisdiction to address the matter was considered earlier by the Supreme Court of Canada in Reference re Canada Assistance Plan, [1991] 2 SCR 525. Sopinka J wrote the Reasons of the Court.
[26] The issues before the Court in that case were two questions put by way of a reference to the British Columbia Court of Appeal. Sopinka J set these questions out at page 534 of the reported version:
On February 27, 1990, Order in Council No. 287 was approved and ordered by the Lieutenant Governor of British Columbia. Via this Order, the Government of British Columbia referred the following questions to the British Columbia Court of Appeal:
(1) Has the Government of Canada any statutory, prerogative or contractual authority to limit its obligation under the Canada Assistance Plan Act [sic], R.S.C. 1970, c. C-1 and its Agreement with the Government of British Columbia dated March 23, 1967, to contribute 50 per cent of the cost to British Columbia of assistance and welfare services?
(2) Do the terms of the Agreement dated March 23, 1967 between the Governments of Canada and British Columbia, the subsequent conduct of the Government of Canada pursuant to the Agreement and the provisions of the Canada Assistance Plan act [sic], R.S.C. 1970, c. C-1, give rise to a legitimate expectation that the Government of Canada would introduce no bill into Parliament to limit its obligation under the Agreement or the Act without the consent of British Columbia?
[27] Sopinka J wrote at page 545 to 546 that the Court must determine whether the question is purely political or whether it has a sufficient legal component to warrant judicial intervention:
While there may be many reasons why a question is non-justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court’s primary concern is to retain its proper role within the constitutional framework of our democratic form of government. See Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 90-91, and Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 362. In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch.
…
Applying the foregoing to this appeal, I am of the view that both of the questions posed have a significant legal component. The first question requires the interpretation of a statute of Canada and an agreement. The second raises the question of the applicability of the legal doctrine of legitimate expectations to the process involved in the enactment of a money bill. Both these matters are in contention between the so-called "have provinces" and the federal government. A decision on these questions will have the practical effect of settling the legal issues in contention and will assist in resolving the controversy. Indeed, there is no other forum in which these legal questions could be determined in an authoritative manner. In my opinion, the questions raise matters that are justiciable and should be answered.
[28] Recently, the Federal Court of Appeal in Coldwater Indian Band v Canada (Minister of Indian and Northern Development), 2014 FCA 277, has cautioned against the Court intervening in a process where the Minister has yet to make a determination. Nadon JA for the Court wrote at paragraphs 8 to 12:
[8] We are of the view that the judicial review application is premature and that there is no basis for the Federal Court or for this court to interfere with the administrative process which requires the Minister to decide whether he should consent to the two assignments sought by Kinder Morgan.
[9] In Canada (Border Services Agency) v. C.B. Powell Ltd., 2010 FCA 61, [2011] 2 F.C.R. 332 and 400 N.R. 367 (C.B. Powell), our Court at paragraphs 30 to 33 made it clear that we were not to interfere with an ongoing administrative process until all adequate remedial recourses in the administrative process had been exhausted unless there were “exceptional circumstances”. We went on to say in C.B. Powell that such exceptional circumstances were few and that the threshold for “exceptional” was high. In particular, Stratas J.A., writing for the Court, said at paragraph 33:
Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the "exceptional circumstances" exception. Little need be said about this exception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as "exceptional" and the threshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (looseleaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 52 D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts.
[10] Coldwater argues that its application was justified in the circumstances as the Minister will be acting contrary to his fiduciary duty and thus outside his jurisdiction. Moreover, the constitutional nature of the Minister’s fiduciary obligations make this Court’s intervention appropriate. Coldwater also says that the Minister’s consent would function as a waiver of Terasen Inc.’s failure to have the indentures properly signed, that it may “invigorate the potentially expired [second] indenture” and that it may grant to Kinder Morgan a legal interest in the reserve that could not later be undone.
[11] Mr. Kirchner, counsel for Coldwater, was quite candid before us when he said that he was, in effect, seeking a remedy akin to a directed verdict in a jury trial. In his view, the Minister could not, in law, decide the consent issue other than in the way proposed by Coldwater.
[12] In our view, the circumstances put forward by Coldwater to justify its pre-emptive strike are not exceptional circumstances. Further we cannot see any irreparable harm or prejudice arising from having the Minister decide the question which is before him. To this we would add that we are satisfied that the Minister can provide the remedy sought by Coldwater, i.e. that the indentures not be assigned to Kinder Morgan.
[29] I conclude that, in the circumstances of this case, there is a sufficient legal basis for the Court to review the matter judicially: namely, whether the legal and enforceable duty to consult applies to the decisions at issue. I will address these matters subsequently in these Reasons. It is not premature to consider the matter.
IX. FEDERAL LAW – MAKING PROCESS AND ASSOCIATED SUPPORT ACTIVITIES [30] The federal law making process and associated support activities are not something that is fixed in stone, whether by legislature or jurisprudence. It is a fluid political process that is continually adapting to the particular circumstances of the moment.
[31] The Canadian Privy Council Office has published a Guide to Making Federal Acts and Regulations, the second edition of which was published in 2001. Hubbard, in his cross-examination at page 17, said that this was strong policy statement. Nevison provided a copy with his affidavit. In part, this document said at pages 7 and 8:
Deciding Whether a Law is Needed
Making a new law, whether by obtaining Parliament's assent to a bill or by making regulations, is just one of several ways of achieving governmental policy objectives. Others include agreements and guidelines or, more generally, programs for providing services, benefits, or information. In addition, a law may include many different kinds of provisions, ranging from simple prohibitions through a wide variety of regulatory requirements such as licensing or compliance monitoring. Law should be used only when it is the most appropriate. When a legislative proposal is made to the Cabinet, it is up to the sponsoring Minister to show that this principle has been met, and there are no other ways to achieve the policy objectives effectively.
The decision to address a matter through a bill or regulation is made by Cabinet on the basis of information developed by a Minister's departmental officials. The information must be accurate, timely and complete. To provide it, a department should:
• analyze the matter and its alternative solutions;
• engage in consultation with those who have an interest in the matter, including other departments that may be affected by the proposed solution;
• analyze the impact of the proposed solution; and
• analyze the resources that the proposed solution would require, including those needed to implement or enforce it.
In the case of a bill, the principal means for conveying this information is a Memorandum to Cabinet, which a minister must present to obtain Cabinet approval for the bill to be drafted by the Legislation Section of the Department of Justice.
When a legislative initiative is being considered, and where it is appropriate and consistent with legislative drafting principles, related matters should be combined in one bill, rather than being divided among several bills on similar subjects. A single bill allows parliamentarians to make the most effective and efficient use of their time for debate and study in committee.
Finally, caution should be taken when considering whether to include a "sunset" or expiration provision in a bill, or a provision for mandatory review of the Act within a particular time or by a particular committee. Alternatives to these provisions should be fully explored before proposing to include them in a bill.
[32] On pages 67 and 68, the Guide states:
Summary of the Cabinet Policy Approval Process
Memorandum to Cabinet and drafting instructions
After a proposed bill is included in the Government's legislative program, the next step is to prepare a submission to Cabinet to seek policy approval and authority to draft the bill. This is done by way of a Memorandum to Cabinet (MC), prepared in accordance with the guidance documents issued by the Privy Council Office. MC drafters should refer to Memoranda to Cabinet: A Drafter's Guide, the Good Governance Guidelines and the MC Preparation Planning Calendar. When a bill is being proposed, the MC includes an annex of drafting instructions, which provides the framework for drafting the bill. This is a critical component of the MC that demands much care and attention (see also Preparing Bill-drafting Instructions for a Memorandum to Cabinet in this chapter).
Main Steps in Cabinet Approval Process
The main steps in preparing an MC are:
• The sponsoring department writes the MC, including the drafting instructions, in cooperation with departmental legal advisers. The Privy Council Office (PCO) should be consulted as early as possible in the process. As set out in the MC Preparation Planning Calendar, the sponsoring department must alert PCO to the draft MC at least 6 weeks before the Cabinet Committee meeting at which it is to be presented. Other departments and central agencies should be consulted as issues arise during the preparation of the MC.
• The sponsoring department hosts a substantive interdepartmental meeting at least 3 weeks before the Cabinet committee meeting to discuss the policy implications of the MC. The meeting includes PCO and the other central agencies as well as all departments whose ministers sit on the Cabinet policy committee that will consider the MC, and other interested departments. The sponsoring department then revises the MC taking into account comments from departments and ensures that it has the support of central agencies and other departments.
• As the central agency that serves as the secretariat to the Cabinet and its committees, PCO performs a challenge function on matters of process, most notably on what consultations are appropriate and on how public interest is determined. It also looks at issues of horizontality and the appropriate level of government intervention, particularly in terms of efficiency, affordability, federalism and partnerships.
• Once finalized, the sponsoring minister signs the MC and it is sent to PCO. PCO is responsible for distributing the MC to deputy ministers and ministers, for scheduling the item on the agenda of the appropriate Cabinet policy committee and