Bigstone Cree Nation v. Nova Gas Transmission Ltd.

Bigstone Cree Nation v. Nova Gas Transmission Ltd.
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-05-08
Neutral citation
2018 FCA 89
File numbers
A-31-17
Decision Content
Date: 20180508
Docket: A-31-17
Citation: 2018 FCA 89
CORAM:
GAUTHIER J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
BIGSTONE CREE NATION
Applicant
and
NOVA GAS TRANSMISSION LTD. AND THE ATTORNEY GENERAL OF CANADA
Respondents
and
NATIONAL ENERGY BOARD
Intervener
Heard at Calgary, Alberta, on October 30, 2017.
Judgment delivered at Ottawa, Ontario, on May 8, 2018.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
GAUTHIER J.A.
NEAR J.A.
Date: 20180508
Docket: A-31-17
Citation: 2018 FCA 89
CORAM:
GAUTHIER J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
BIGSTONE CREE NATION
Applicant
and
NOVA GAS TRANSMISSION LTD. AND THE ATTORNEY GENERAL OF CANADA
Respondents
and
NATIONAL ENERGY BOARD
Intervener
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] This is an application for judicial review of Order in Council P.C. No. 2016-962 (the Order or the OIC) made by the Governor in Council (the GIC) dated October 28, 2016. The Order directed the National Energy Board (the NEB or the Board) to issue an environmental assessment decision statement concerning the 2017 Nova Gas Transmission Ltd. (NGTL, Nova or the Company) System Expansion Project in northern Alberta (the Project), and to issue the Certificate of Public Convenience and Necessity GC-126 (the CPCN or the Certificate) authorizing the construction and operation of the Project. The authorization is subject to the Certificate Conditions contained in the CPCN (the Conditions), which are attached as Appendix III to the GH-002-2015 National Energy Board Report In the Matter of NOVA Gas Transmission Ltd. (the NEB Report) (Applicant’s Record (AR), vol. 6 at 1031-1048).
[2] The applicant Bigstone Cree Nation (the applicant or Bigstone) requests inter alia orders declaring that Canada breached its constitutional and common law obligations to consult and accommodate Bigstone, that the Crown improperly delegated its duty to assess the Project’s effects on the environment and on Bigstone’s rights protected under subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Section 35 Rights), and that the GIC erred in law in issuing the OIC as it does not comply with the National Energy Board Act, R.S.C. 1985, c. N-7 (the NEB Act) and is otherwise unreasonable for failing to provide reasons or sufficient reasons, and for failing to publish the Order in the Canada Gazette. The applicant requests an order declaring that the OIC is unenforceable, invalid and unlawful and/or without legal effect and prohibiting the Project approval decision, as well as an order quashing the OIC and the Certificate. In the alternative, Bigstone requests an order requiring the Crown to enter into consultations with Bigstone subject to the Court’s supervision and on specific and detailed terms.
[3] For the reasons that follow, I would dismiss the application with costs. I am of the view that the Crown has adequately fulfilled its duty to consult and accommodate Bigstone and I see no reason to interfere with the GIC decision to approve the Project.
I. Context
[4] The applicant is a First Nation in Alberta with a membership of approximately 7,752. It is also a band under the Indian Act, R.S.C. 1985, c. I-5, and its members are Aboriginal peoples pursuant to subsection 35(1) of the Constitution Act, 1982. They have been using and occupying lands in north-central Alberta (Bigstone Territory) prior to and at the time of the Crown’s assertion of sovereignty. Bigstone relies on its territory to exercise activities, practices, customs and traditions that include hunting, fishing and harvesting. These traditions are essential for Bigstone people’s survival and the preservation of its distinct way of life and culture.
[5] On or about August 14, 1899, Bigstone’s ancestors and the Crown concluded Treaty No. 8, which covers a portion of Bigstone Territory and provides for harvesting and governance rights on this territory (Bigstone Treaty Rights). Bigstone asserts unextinguished Section 35 Rights, which protect its territory, as well as harvesting and governance rights against interference and infringement from the Crown. It is not in dispute that the Project is located in Bigstone Territory. In Reasons for Order issued as part of these proceedings (2017 FCA 54), Justice André Scott recognized that “[t]he Pelican Lake Section is located directly within Bigstone Territory and runs roughshod through three identified ranges of the threatened boreal woodland caribou” and that “the Boreal Caribou is an important and significant element for Bigstone” (at paras. 3 and 49).
[6] On December 15, 2014, Nova, a wholly-owned subsidiary of TransCanada PipeLines Limited, submitted to the NEB a Project Description, thereby triggering the federal regulatory review of the Project. The $1.29 billion Project aims at expanding the existing Nova Gas Transmission Ltd. System in northern Alberta to receive and deliver sweet natural gas. It provides for 230 kilometers of new pipeline in five separate sections looping existing NGTL pipelines, and two compressor station unit additions. This application for judicial review relates to one of the five sections, approximately 56 kilometers long, comprised of the Liege Lateral Loop No. 2, in Pelican Lake Section. It is located entirely on provincial Crown land, and it parallels existing rights-of-way and other disturbances for 93% of the route.
[7] For the Project to proceed, a CPCN was required pursuant to sections 31, 52 and 54 of the NEB Act. Since the Project includes more than 40 kilometers of new pipeline, it is also a “designated project” for the purposes of subsection 2(1) of the Canadian Environmental Assessment Act, S.C. 2012, c. 19 (the CEAA); as such, the NEB was required to conduct an environmental assessment under section 52 of that act (see also sections 2 and 4 of the Regulations Designating Physical Activities, S.O.R./2012-147, and section 46 of its schedule).
[8] Being a “major resource project” as defined by Canada’s Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects (AR, vol. 14 at 2371-2378), the Project was subject to Canada’s Major Project Management Office (the MPMO) Initiative. The MPMO coordinated Canada’s overall approach to Indigenous consultation for the Project among interested federal departments, which led to the Project Agreement for the 2017 NGTL System Expansion Project in Alberta (AR, vol. 14 at 2549-2558). This overall approach to Indigenous consultation was integrated to the extent possible with the NEB hearing process. The consultation process for the Project was carried out in four phases.
A. Phase I: The Early Engagement Phase
[9] Prior to filing its Project Application, NGTL engaged and consulted with Bigstone and other Indigenous groups, as required by the NEB Filing Manual at 3-3 to 3-11 (AR, vol. 15 at 2666-2674). A list of potentially affected Indigenous groups was established in the Project Description (AR, vol. 14 at 2509), and on February 17, 2015, the Board contacted potentially affected Aboriginal groups, including Bigstone, and provided information about the Project and the review process. A letter from the MPMO was attached, specifying that it “intend[ed] to rely on the NEB’s public hearing process, to the extent possible, to fulfil its duty to consult Aboriginal groups” (Nova’s Record (NR), vol. 1 at 234-242) and the way it intended to do so. Additional telephone calls and email correspondence between the NEB and Bigstone were exchanged, and a meeting with Bigstone took place on April 29, 2015 to provide information about the Project (AR, vol. 17 at 2944-2970).
B. Phase II: The NEB Hearing Phase
[10] On March 31, 2015, Nova formally applied to the NEB and filed a Project Application for approval of the construction and operation of the Project. Attached were an Environmental and Socio-economic Assessment and a summary of the Company’s engagement with Indigenous groups, including Bigstone, up to that point in time (AR, vol. 1 at 122-198). Once the Project Application was considered complete, on May 29, 2015 the Board issued a Notice of Hearing and Application to Participate (NR, vol. 1 at 317-328). In its Ruling No. 1, the Board granted intervener status to a number of parties including Bigstone (AR, vol. 2 at 205-230). Through the Board’s Participant Funding Program, Bigstone was also granted funding in the amount of $27,000 to participate as an intervener in the hearing.
[11] On July 31, 2015, the Board issued Hearing Order GH-002-2015, which established the process for the public hearing. As an intervener, Bigstone was able to submit written evidence, present oral traditional evidence, ask questions in writing about NGTL’s and other interveners’ evidence, submit and respond to motions, and present a final argument. Bigstone participated in all of these steps throughout the hearing, which took place from July 2015 to March 2016.
[12] Bigstone issued 197 Information Requests (IRs) to NGTL over two rounds; it brought a motion to the Board to compel further responses, but the Board determined that NGTL had sufficiently answered Bigstone’s IRs (AR, vol. 4 at 689-692). Bigstone presented a panel of four elders in Edmonton on November 4, 2015 (AR, vol. 4 at 549-589), and filed written evidence consisting of a Bigstone Cree Nation Traditional Use Study: TransCanada NGTL 2017 – Interim Report (Interim TLU Study) and a Review of Appendix 9-I Preliminary Caribou Habitat Restoration and Offset Mitigation Plan (AR, vol. 4 at 615-688). Finally, Bigstone filed written submissions addressing, among other things, the impact of the Project on Bigstone’s Aboriginal and Treaty Rights, Bigstone’s Project-related concerns with respect to the boreal woodland caribou (the Caribou), Caribou habitat and traditional land and resources use, Bigstone’s concerns regarding cumulative effects in its traditional territory, perceived deficiencies in consultation, and comments on the draft Conditions (AR, vol. 5 at 758-780). In January 2016, Bigstone submitted a revised version of its Interim TLU Study: Bigstone Cree Nation Traditional Use Study: TransCanada NGTL 2017 – Final Report (Final TLU Study).
[13] Both prior to and parallel with the NEB process, NGTL engaged directly with Bigstone. Eight meetings were held, Bigstone was invited to provide input on preliminary information, it participated in three NGTL biophysical studies and received $225,000 in funding to conduct a TLU Study and otherwise engage in relation to the Project.
C. Phase III: The NEB Recommendation Phase
[14] On June 1, 2016, the Board released its 187-page report. The Board recommended that the GIC approve the Project, subject to 36 Conditions. It found that the consultation undertaken and proposed by NGTL for the Project was appropriate for the scope and scale of the Project, and that potentially affected Aboriginal groups had been provided with sufficient information about the process and had had enough opportunities to provide their views (NEB Report at 70-71; AR, vol. 6 at 931-932). The Board was also of the view that the Project-specific effects on use of land and resources for traditional purposes were not likely to be significant, even though it was concerned with the Project’s cumulative effects. It was further of the view that the potential impact of the Project on the rights and interests of Aboriginal groups would be appropriately mitigated given the nature and scope of the Project, NGTL’s commitments, proposed mitigation measures and regulatory requirements, and Conditions imposed by the Board for the Project (NEB Report at 83-84; AR, vol. 6 at 944-945).
[15] With respect to its environmental assessment, the Board found that “sufficient routine design and standard mitigation measures ha[d] been identified to mitigate most of the potential adverse environmental effects identified” (NEB Report at 111; AR, vol. 6 at 972). It also found that NGTL was implementing a number of known best practices to mitigate potential adverse environmental effects associated with the presence of species at risk, rare plants and ecological communities, weeds and wetlands (NEB Report at 112; AR, vol. 6 at 973). As regards the cumulative effects analysis, the Board recognized NGTL’s efforts to route the pipeline to follow existing rights-of-way and minimize new disturbances, especially in Caribou ranges; it expected the Company to respect the timing window set out to avoid adverse impact on Caribou (NEB Report at 132-133; AR, vol. 6 at 993-994). Given the already substantial ongoing cumulative effects on Caribou in the region due to both direct and indirect habitat disturbance, the Board required all residual effects on Caribou habitat to be considered and compensated (NEB Report at 141; AR, vol. 6 at 1002).
[16] The Board imposed a number of Conditions on NGTL, the most significant being: a commitments tracking table (Condition 5), an environmental protection plan (Condition 6), a revised version of the Caribou Habitat Restoration and Offset Measures Plan (Condition 7), a report on outstanding traditional land use investigations (Condition 8), evidence that it has received heritage resources permits and clearances from provincial authorities (Condition 10), a plan for Aboriginal participation in monitoring construction activities (Condition 12), a report summarizing NGTL’s engagement with all potentially affected Aboriginal groups identified (Condition 13), various programs and manuals regarding construction, operation, maintenance and safety (Condition 15), a construction schedule (Condition 16), construction progress reports (Condition 18), a hydrostatic testing plan (Condition 25), a Caribou habitat restoration implementation report and status update (Condition 31), a Caribou habitat restoration and offset measures monitoring program (Condition 32), Caribou monitoring reports (Condition 33), a Caribou habitat offset measures implementation report (Condition 34), and post-construction monitoring reports (Condition 36) (NEB Report at 170-183; AR, vol. 6 at 1031-1044).
D. Phase IV: The Post-NEB Report Phase
[17] On June 2, 2016, the day after the NEB Report was released, the MPMO wrote to Bigstone expressing Canada’s interest in consulting directly with Bigstone and advising it that the Crown considered the depth of its duty to consult with Bigstone as being at the high end of the consultation spectrum. To ensure the Crown consultation would be meaningful, the Governor in Council extended, on June 17, 2016, the statutory time limit for Canada’s decision in respect of the Project by two months. Bigstone was awarded the maximum amount of $8,500 in funding to participate in post-hearing consultations. The MPMO made efforts to meet as early as mid-July, but Bigstone was unavailable to meet due to an “organizational restructuring process”; officials from the MPMO and the NEB eventually met with officials from Bigstone on August 24 and September 1, 2016. At those meetings, Bigstone was invited to discuss the outstanding issues and proposed accommodation measures. On September 20, 2016, the MPMO shared a draft Crown Consultation and Accommodation Report (the CCAR) for Bigstone’s comments, accompanied by a draft annex specific to Bigstone (the Bigstone Annex). On September 27 and September 30, 2016, the MPMO wrote to Bigstone to request its comments and extended the time initially to September 29, 2016, and then to October 11, 2016. On October 3, 2016, Bigstone advised Canada it wished to comment on the draft CCAR; having heard nothing further from Bigstone on October 24, 2016, the MPMO finalized the draft CCAR and the Bigstone Annex. Chief Gordon T. Auger requested a meeting between Bigstone leadership and the MPMO on October 25, 2016, and suggested that the MPMO consider seeking an extension to current timelines. That letter remained unanswered.
[18] Based on its analysis of the available information, the Crown anticipated minimal impact on Bigstone’s Section 35 Rights from its contemplated conduct, and considered that any adverse impact would be addressed by the Conditions proposed by the NEB to ensure the safe construction and operation of the Project. The Crown also believed that it had met its duty to consult with Bigstone.
[19] On October 28, 2016, the Governor in Council issued the Order directing the NEB to issue a Certificate to NGTL in respect of the Project and subject to the Conditions set out in Appendix III of the NEB Report. In the preamble of the Order, it is explained that the Governor in Council came to its conclusion after having considered Aboriginal concerns and interests, being satisfied they had been appropriately accommodated and that the consultation process was consistent with the honour of the Crown. It also accepted the Board’s recommendation that, if the Company complied with all the Conditions, the Project would be required by the present and future public convenience and necessity and would not likely cause significant adverse environmental effects. As a last consideration, the GIC took into account that “the Project would enhance natural gas transmission infrastructure for adequate gas supply and support environmentally sustainable resource development” (AR, vol. 1 at 16).
[20] On November 4, 2016, the NEB issued the Certificate. On December 10, 2016, the Order was published in the Canada Gazette, along with an Explanatory Note. While this note is not part of the impugned Order, it proves useful in terms of understanding the context that surrounds it. Worth mentioning is the fact that the GIC considered that NGTL correctly assessed the impacts of the Project on existing infrastructure such as roads and highways. The GIC also determined that the mitigation measures proposed by NGTL to limit disturbance on the Caribou were satisfactory, given the concerns raised by Environment and Climate Change Canada. The GIC noted NGTL’s commitment to continue engaging with Aboriginal groups. It also took into account the Conditions developed by the Board to address Health Canada’s concerns about noise associated with the Project and the effects of this noise on human health, the two-month extension granted by the Crown to provide for deeper consultation and an online questionnaire to determine the public’s interest in the Project. Fifteen people answered that questionnaire and provided 47 responses, a majority of which were in favour of the Project.
[21] On December 7, 2016, Bigstone filed a notice of motion for leave to judicially review the OIC (AR, vol. 22 at 3880). Leave was granted by Justice Johanne Gauthier on January 19, 2017. On the same day, alleging risks to its Aboriginal and Treaty Rights, as well as threats to Caribou, Bigstone requested the NEB to “immediately issue a stop work order for the [Loop]” (AR, vol. 11 at 1890). On December 22, 2016, the NEB dismissed the request as it did not raise any new issues that had not been previously heard and considered (NR, vol. 3 at 877-878). On February 15, 2017, Bigstone filed a motion for an interlocutory injunction in this Court, but it was dismissed by Justice André Scott on March 17, 2017 (NR, vol. 3 at 880).
II. Issue
[22] The only substantive issue raised by this application is whether the Crown has adequately discharged its duty to consult and, if necessary, to accommodate Bigstone.
III. Analysis
A. The legislative scheme
[23] The legislative scheme for pipeline approvals set out by Parliament in the NEB Act has been aptly summarized in Gitxaala Nation v. Canada, 2016 FCA 187 at paragraphs 92 to 127, 485 N.R. 258 (Gitxaala). I will therefore refrain from engaging in the same exercise and will focus instead on the particulars of this case.
[24] In a nutshell, section 31 of the NEB Act requires a company that wishes to construct a section of a pipeline to apply to the Board to obtain a certificate. Once the Board determines that such a Project Application is complete and ready to proceed to assessment, it issues a Notice of Hearing and Application to Participate convening a public hearing to assess the Project; in the case at bar, this was done on May 29, 2015. On July 31, 2015, the Board issued Hearing Order GH-002-2015, followed by procedural updates, which established a public hearing process that included a list of issues that the Board would consider during its assessment of the Project, and invited all Aboriginal interveners who wished to do so to inform the Board of their intent to provide oral traditional evidence (AR, vol. 2 at 231-279). The Board conducted its public hearing primarily through a written process which included two rounds of filing evidence, several rounds of IRs, letters of comment, and the submission of final arguments, concluding with NGTL’s submission of a reply argument. The one oral component of the hearing was the collection of oral traditional evidence from Aboriginal interveners, which took place in October and November 2015 (NR, vol. 1 at 208).
[25] On June 1, 2016, the Board issued its report. Subsection 52(1) of the NEB Act provides that such a report must set out a recommendation as to whether the certificate should be issued, and if so, under what conditions. Subsection 52(2) lists the criteria upon which the Board must base its recommendation, which includes “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application” (NEB Act at para. 52(2)(e)). Since NGTL’s proposed pipeline section loops for the Project collectively exceed 40 kilometers in length, the Project is a “designated project” under subsection 2(1) of the CEAA and requires an environmental assessment for which the Board is the responsible authority, in accordance with subsection 52(3) of the NEB Act.
[26] The Board found that the Project is, and will be, required by the present and future public convenience and necessity as requested by subsection 52(1). That conclusion reflected the Board’s consideration not only of the criteria mentioned in subsection 52(2) of the NEB Act but also of the matters set out in sections 5 and 19 of the CEAA. The Board also set out 36 Conditions that it considered necessary or desirable in the public interest, should the Governor in Council direct the Board to issue a certificate to authorize the Project, as required by paragraph 52(1)(b) of the NEB Act. The Board was of the view that with these Conditions, the implementation of NGTL’s environmental protection procedures and mitigation measures, the Project was not likely to cause significant adverse environmental effects. These Conditions had previously been shared with all participants in the hearing who were then invited to provide their comments.
[27] After the Board has submitted its report, the Governor in Council may, by order, direct the Board either to issue a certificate and to make it subject to the terms and conditions set out in the report, or to dismiss the application for a certificate (NEB Act at subsection 54(1)). Such an order must be made within three months after the Board’s report, unless the Governor in Council extends that time limit pursuant to subsection 54(3) of the NEB Act. In the case at bar, the time limit was extended by two months, to November 1, 2016. The Governor in Council could also have asked the Board to reconsider its recommendation or any terms and conditions, or both (NEB Act at subsection 53(1)).
[28] The Crown, through the MPMO, consulted Aboriginal groups on the NEB recommendation to understand the impacts of the Project that were not addressed in the NEB Report and Conditions, where those impacts could be mitigated and where they could not be mitigated, and how any outstanding impact could be accommodated. In the Crown Consultation and Accommodation Report released on October 14, 2016, the MPMO described the consultation process undertaken by the Crown with Aboriginal groups, reported the views of Aboriginal groups on how the Crown’s conduct may potentially impact their rights, explained the Crown’s findings regarding the potential impact of the Crown’s conduct on Section 35 Rights, and outlined accommodation measures proposed to address potential impact on Aboriginal rights. It concluded that the Conditions proposed by the NEB were responsive to, and appropriately accommodated, the concerns raised by Aboriginal groups.
[29] On October 28, 2016, the Governor in Council issued the Order directing, pursuant to paragraph 54(1)(a) of the NEB Act, the NEB to issue CPCN GC-126 to Nova in respect of the Project, subject to the Conditions set out in the NEB Report. It also decided, pursuant to subparagraph 31(1)(a)(i) of the CEAA, that, taking into account those Conditions, the Project is not likely to cause significant adverse environmental effects, and directed the NEB to issue a decision statement to that effect (CEAA at para. 31(1)(b)).
[30] It is that decision which is the subject of this application for judicial review. Under the legislative scheme put in place by the NEB Act and the CEAA, the Governor in Council is the only decision-maker. The NEB (and, to a lesser extent, the MPMO) gathers information, consults, analyzes, assesses and makes a recommendation. It does not exercise, either prior to or after the Order made by the Governor in Council, any independent or discretionary power. Accordingly, the Order in Council is the only focus of this application; Bigstone appropriately challenged the legal validity of that decision.
B. Standard of review
[31] There is broad agreement between the parties that the standard of review for a discretionary decision of the Governor in Council made under subsection 54(1) of the NEB Act is reasonableness. As stated by this Court in Gitxaala at paragraph 154, the GIC’s discretionary decision to issue the Order in Council and to direct the NEB to issue a CPCN to Nova was “based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective or indistinct criteria and shaped by its view of economics, cultural considerations, environmental considerations, and the broader public interest”. As such, the GIC is entitled to a very broad margin of appreciation. In the present case, it is beyond doubt that the decision of the GIC was based, as required by the NEB Act, on public policy and economic considerations that are diffuse in nature and call for a high level of deference.
[32] There is no need in the case at bar to determine the breadth of the range of acceptable and defensible outcomes on the facts and the law. I acknowledge that a majority of the Supreme Court rejected the notion that the reasonableness standard can be calibrated and therefore expanded or restricted on a sliding scale depending on the nature of the decision being reviewed (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at paras. 18 and 73, [2016] 1 S.C.R. 770). It is sufficient to reiterate, as the highest court did in that case, that reasonableness “takes its colour from the context” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59, [2009] 1 S.C.R. 339) and must therefore “be assessed in the context of the particular type of decision-making involved and all relevant factors” (Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para. 18, [2012] 1 S.C.R. 5). I leave it to others to determine how these two approaches (i.e. delineating at a conceptual level the margin of appreciation afforded to an adjudicator or determining the reasonableness standard in light of the specific context under review) differ at a practical level.
[33] Be that as it may, the issue before this Court is not whether the Order is reasonable under administrative law principles, but rather whether the Crown fulfilled its constitutional duty to consult and accommodate. It is accepted by the parties that determinations pertaining to the existence, content and scope of the duty to consult, as well as to the seriousness of the Aboriginal or treaty claims and the impact of the infringement, are to be reviewed on a standard of correctness to the extent that they can be isolated from issues of fact. As the Supreme Court recognized in Haida Nation v. B.C. (Minister of Forests), 2004 SCC 73 at paragraph 61, [2004] 3 S.C.R. 511 (Haida), such questions are no doubt of a legal nature but nevertheless suffused with and premised on an assessment of facts.
[34] Conversely, the adequacy of the consultation and the accommodation is reviewed on a standard of reasonableness as it is a mixed question of fact and law. It requires a combined legal and factual analysis of the strength of the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal or treaty right (Haida at paras. 62-63). At that stage, the Court will focus on the process itself, not on the substantive outcome of the consultation and accommodation. As the Supreme Court stated in Haida at paragraph 62, “[p]erfect satisfaction is not required”; the duty to consult will be satisfied if the government made reasonable efforts to inform and consult. See also: Gitxaala at paragraphs 182-185; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212 at paragraph 54, 379 N.R. 297; Canada v. Long Plain First Nation, 2015 FCA 177 at paragraph 133, 388 D.L.R. (4th) 209; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148 at paragraph 56, 474 N.R. 350; Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179 at paragraph 47, 474 N.R. 96, rev’d on other grounds 2017 SCC 40.
C. The existence, content and scope of the duty to consult
[35] In the case at bar, the Crown acknowledged that it had a duty to consult Bigstone, given that Bigstone had established Treaty Rights and that the potential impact of the Project on the rights and interests of Bigstone would be “moderate to high”. On that basis, it assessed the extent of that duty at the “high end of the consultation spectrum” (AR, vol. 21 at 3664-3665). Therefore, no issue arises as to the existence or extent of the duty to consult. It is not in dispute either that deep consultation will normally require the opportunity to make submissions, formal participation in the decision-making process, and the provision of written reasons to show that Aboriginal concerns were considered and how they were factored into the decision (Gitxaala at para. 174).
[36] Nevertheless, Bigstone attempted to argue that the Crown made an error of law reviewable under the standard of correctness as it determined that the duty to consult excludes consultation on important prima facie stewardship rights related to Caribou. Bigstone claimed that this aspect of its Aboriginal and Treaty Rights was not addressed in the NEB Report, and that the CCAR and the MPMO consultations did not substantively respond to the evidence that it presented in that respect.
[37] First of all, the NEB Report does address Bigstone’s concerns relating to Caribou habitat. At pages 140 and 141 of the NEB Report (AR, vol. 6 at 1001-1002), it specifically refers to Bigstone’s (and other First Nations’) concerns and measures that have been taken to restore Caribou habitat and populations. While the CCAR may not be as explicit, this is not sufficient in and of itself to conclude that the MPMO paid no attention to that issue; indeed, there may well be other reasons why no such mention is made in the CCAR, as I shall explain later in these reasons. In any event, I agree with Nova that Bigstone’s complaint raises issues regarding the adequacy of the consultation, and not the extent or the depth of the consultation. Bigstone may well be unhappy with the sufficiency of the consultations, how they were conducted, their thoroughness and the responsiveness of the Crown’s representatives, but there was certainly no ambiguity as to the necessity to consult, the scope of that duty and the nature and impact of Bigstone’s Aboriginal and Treaty Rights.
[38] Accordingly, I will now deal with Bigstone’s arguments going to the sufficiency and adequacy of the consultation, and assess them on a reasonableness standard.
D. The sufficiency and adequacy of the consultation and accommodation
(1) The Phase IV consultations were left too late
[39] Bigstone raised a number of issues with respect to the Phase IV consultation process. First, it claims that the Crown released the CCAR without its input, as a result of having provided a draft version to Bigstone only 18 days before it was finalized by the MPMO. However, a careful reading of the Record shows that Bigstone faced a short deadline not because the Crown rushed the process, but because Bigstone failed to act diligently. It is to be remembered that the Crown contacted Bigstone by email on June 2, 2016, one day after the release of the NEB Report, to begin post-recommendation consultations and to inform it of funding availability. On June 16 and June 24, 2016, the Crown tried again to contact Bigstone to arrange a meeting (CCAR, AR, vol. 21 at 3665). Even though the Crown was unable to arrange such a meeting, Bigstone nevertheless sent its application for funding to the MPMO on June 24, 2016, which would tend to indicate that Bigstone had knowledge of the Crown’s first attempt to meet on June 2, 2016. It is only on July 5, 2016, as a result of a further attempt by the Crown on that same day to set up a meeting, that Bigstone responded that it was “currently undergoing an organizational restructuring process” (AR, vol. 19 at 3293).
[40] In the following week the Crown tried to reach its original contact person with Bigstone without success, and then attempted to contact another individual identified by Bigstone as a contact person (AR, vol. 19 at 3295). Finally, on July 11 and 18, 2016, the Crown had to contact the firm that made the TLU Study for Bigstone to find out who was now in charge of participating in consultations (AR, vol. 19 at 3295 and 3340-3341). As a result of all these failed attempts to contact Bigstone, the first meeting occurred almost three months after the NEB Report was released, that is on August 25, 2016. At that meeting, the Crown gave a copy of a presentation about the Crown’s consultations with respect to the Project. That presentation contained a timeline indicating that the Crown would seek input on the CCAR in September 2016 and that the GIC’s decision would be made at the beginning of November (as a result of the GIC having extended the statutory time period to render its decision on the NEB’s recommendation by two months).
[41] In its memorandum, Bigstone states that it requested a second meeting (which took place on September 1, 2016) because the first meeting was “rushed”. Yet it appears from an email sent to the MPMO by Bigstone’s representative that the meeting was rushed because of this representative (AR, vol. 19 at 3387). Moreover, that same representative left in the middle of the second meeting and was replaced by someone else, despite the fact that he was the one who had proposed the time and place of that meeting. This is clearly evidence that Bigstone was not seriously engaged in the process.
[42] It is true that the deadline given to Bigstone (and all other First Nations involved in the process) to comment on the draft CCAR was tight. The draft CCAR was shared on September 20, 2016, and the initial deadline for comments was September 26, 2016. Yet that deadline was twice extended, first to September 29, 2016, and then to October 11, 2016. Bigstone wrote to the MPMO on October 3, 2016 to advise that they would provide comments prior to the deadline, but did not in fact provide their comments before the CCAR was finalized on October 14, 2016.
[43] In light of that sequence of events, Bigstone cannot seriously complain that it was not meaningfully consulted after the release of the NEB Report. Both sides had approximately four months to consult, but the first three months were lost as a result of Bigstone’s lack of engagement. On October 25, 2016, Chief Gordon T. Auger of Bigstone wrote to the MPMO expressing its “interest in becoming involved in the Federal consultation process for the 2017 NGTL System Expansion Project”, requesting an “immediate meeting” and recommending the MPMO to seek an extension of time, the failure of which would result in “the Crown’s failure to discharge its duty to consult”. The Chief finally insisted on the fact that “Bigstone is committed to employing all avenues available under the law to ensure the Project does not move forward and adversely impact rights and titles or causes irreparable harm to Bigstone” (AR, vol. 7 at 1157-1159). After weeks of silence, unanswered emails and comments never provided by Bigstone despite its commitment to provide them, this letter is disingenuous and flies in the face of an objective and fair-minded appreciation of the parties’ conduct. The request came way too late, and the Crown was justified in not agreeing to a time extension, especially given the fact that it had already granted a two-month extension.
(2) The funding provided was insufficient
[44] Second, Bigstone argues that the lack of funding prevented meaningful consultations at Phase IV. With all due respect, this argument is without merit. First, I note that Bigstone was awarded the maximum amount of $8,500 in funding to participate in post-hearing consultations. This was on top of the $27,000 provided to Bigstone by the NEB in participant funding (AR, vol. 14 at 2360) and of the approximately $225,000 provided by NGTL to fund Bigstone’s engagement in the Project (AR, vol. 13 at 2313).
[45] Moreover, the Crown is under no obligation to provide funding. The two cases relied upon by counsel for Bigstone to support such a duty clearly do not go that far (Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, [2007] O.J. No. 2214, [2007] 3 C.N.L.R. 221 (Ont. Sup. Ct.) (Platinex); Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354, [2007] 1 C.N.L.R. 1, aff’d 2008 FCA 20). At best, it will be but one factor to determine if the consultations were meaningful; or, as stated in Platinex, “[t]he issue of appropriate funding is essential to a fair and balanced consultation process” (at para. 27). In the case at bar, Bigstone has not even attempted to show how the purported lack of funding impacted on its participation in the consultation process and how much additional funding would have been necessary. Indeed, Bigstone returned a signed Funding Agreement two months after its application had been approved, after having been reminded twice (on August 8 and September 20, 2016) that they had missed the deadline to do so (which was July 27, 2016) (AR, vol. 19 at 3344 and 3400).
(3) The consultations were not meaningful
[46] Bigstone also alleges that the Phase IV consultations were not effective or properly managed and claims that the meetings were an exchange of information only, did not respond to Bigstone’s concerns, and did not provide Bigstone with a platform to engage in meaningful discussions on outstanding Project-specific issues. These submissions, however, are not substantiated and are not borne out by the Record.
[47] There is no doubt that the Crown had a duty to consult with Bigstone and other Indigenous groups impacted by the Project. That duty is grounded in the honour of the Crown, and arises every time the Crown has actual or constructive knowledge of the potential existence of Section 35 Rights and contemplates conduct that might adversely affect those rights (Haida at para. 35; Gitxaala at paras. 171-172). It is equally beyond dispute that the Governor in Council, when considerin