Council of the Innu of Ekuanitshit v. Canada (Fisheries and Oceans)

Council of the Innu of Ekuanitshit v. Canada (Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2015-11-20
Neutral citation
2015 FC 1298
File numbers
T-415-13
Decision Content
Date: 20151120
Docket: T-415-13
Citation: 2015 FC 1298
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 20, 2015
Present: The Honourable Mr. Justice Gascon
BETWEEN:
COUNCIL OF THE INNU OF EKUANITSHIT
and
SOCIÉTÉ DES ENTREPRISES INNUES D'EKUANITSHIT S.E.P. (2009)
Applicants
and
MINISTER OF FISHERIES AND OCEANS CANADA
and
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
and
HAMEL CONSTRUCTION INC.
Respondents
JUDGMENT AND REASONS
I. Overview [1] The Council of the Innu of Ekuanitshit and the Société des entreprises Innues d'Ekuanitshit s.e.p. (2009) (collectively, the Innu of Ekuanitshit) presented an application for judicial review against decisions made by the Minister of Fisheries and Oceans Canada (the MFO) and the Minister of Public Works and Government Services (the MPWGS) (collectively, the federal ministers) regarding the reconstruction of Mingan wharf in the Gulf of St. Lawrence.
[2] On September 2009, a fire completely destroyed the wharf in place at the time in the village of Mingan, requiring its reconstruction. In order to proceed with the construction, the MFO made the decision to acquire the services to reconstruct the wharf through a public bid solicitation initiated in November 2012 by the MPWGS. In February 2013, the MPWGS awarded the contract to Hamel Construction Inc. (Hamel). The reconstruction of the wharf was completed in January 2014, before the spring 2014 fishing season.
[3] In their original notice of application filed in March 2013, the Innu of Ekuanitshit sought judicial review of the contract awarded for the reconstruction of the wharf by the MPWGS on February 5, 2013 and to have it set aside. Following the amendment of their notice of application in August 2013, the Innu of Ekuanitshit also challenged the previous decision of the MFO and the MPWGS to acquire services to reconstruct the wharf through a public bid solicitation and, alternatively, requested that the tender notice published by the MPWGS on November 30, 2012, be set aside.
[4] The Innu of Ekuanitshit attacked these decisions of the MFO and PWGSC by raising their unreasonableness and illegality. They claimed that by determining who would reconstruct the Mingan wharf, the federal ministers erred in submitting the contract to reconstruct a public bid solicitation and, in the same breath, setting aside the application of a Canadian Treasury Board Contracting Policy Notice entitled the Procurement Strategy for Aboriginal Business (the PSAB). Indeed, in this entire bid solicitation and contract award process, the Innu of Ekuanitshit alleged that the federal ministers did not apply the PSAB to the project to reconstruct the Mingan wharf. That was their main complaint against the decisions of the MFO and the MPWGS. Furthermore, the Innu of Ekuanitshit argued that, in their dealings leading to the award of the contract for the reconstruction of the wharf, the federal ministers had a duty to consult with and accommodate them (in the sense that this duty has been developed by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida) and its descendants), and that they did not fulfill this duty.
[5] According to the Innu of Ekuanitshit, this failure of the federal ministers to apply the PSAB to the project to reconstruct the Mingan wharf and to consult with them in the process of awarding contracts is sufficient to invalidate the decisions relating to the notice of bid solicitation and the contract awards.
[6] With respect to remedies, since the Mingan wharf has now already been reconstructed and the contract for its reconstruction is complete, the Innu of Ekuanitshit are no longer requesting the setting aside of the contract awarded to Hamel in February 2013 or the decision to initiate a public bid solicitation for it in November 2012. As their counsel confirmed at the hearing before this Court, rather they seek to obtain declarations. They are of two types. First, the Innu of Ekuanitshit request from the Court a declaration that the reconstruction of Mingan wharf constituted a contract to provide goods or services submitted to the PSAB; also, by proceeding with a public bid solicitation outside the scope of the PSAB and by awarding the contract to reconstruct Mingan wharf to Hamel, the MFO and the MPWGS awarded the contract illegally and breached the PSAB. Second, the Innu of Ekuanitshit also requested a declaration that the federal ministers have not adequately fulfilled their duty to consult them on the elements of the project to reconstruct the wharf and seek to accommodate them before initiating the notice of bid solicitation and awarding the contract to Hamel. Finally, the Innu of Ekuanitshit requested that the costs be incurred by the federal ministers regardless of the issue of the case given the importance of the issues and public interest in the legal resolution of the case.
[7] On behalf of the federal ministers, the Attorney General of Canada (the AGC) argued that the fundamental purpose of this application is in fact the decision of the MFO and the MPWGS to initiate a public bid solicitation for the wharf reconstruction and set aside the PSAB. The AGC submitted that this decision must be reviewed on a standard of reasonableness and that this standard was met in this case. Furthermore, the AGC claimed that the challenge to this decision is late, that the Innu of Ekuanitshit do not have the required interest to seek a remedy and that the proceedings have become purely moot given the reconstruction of the wharf. Finally, the AGC argued that the federal ministers had no duty to consult or accommodate the Innu of Ekuanitshit in this case within the meaning of Haida. Therefore, the AGC requested that the Court dismiss the application, with costs.
[8] Initiated in March 2013, this application for judicial review today raises the following two questions:
Did the federal ministers err in deciding not to apply the PSAB and to proceed by public bid solicitation in the process leading to the award of the contract to reconstruct the Mingan wharf to Hamel? Did the federal ministers have a duty (within the meaning of Haida) to consult and accommodate the Innu of Ekuanitshit in the process leading to the contract award to reconstruct the wharf?
[9] For the reasons that follow, the Court allows in part the application of the Innu of Ekuanitshit. First, the Court is of the view that the different preliminary questions raised by the AGC do not act as a bar to this application. Second, the Court finds that the decision of the federal ministers to set aside the PSAB and proceed with the contract award through a call for public tenders does not meet the standard of reasonableness, as the MFO and the MPWGS had not analyzed the tests established by the PSAB and did not have the evidence to conclude that the PSAB did not apply to the contract. However, the Court is of the view that the federal ministers did not, apart from the process provided by the PSAB, have a general duty to consult and accommodate the Innu of Ekuanitshit in this case, and that there was no violation in this regard in the conduct of this case.
II. Background [10] Before dealing with the issues, it is important to establish the background of the application of the Innu of Ekuanitshit, particularly the facts surrounding the reconstruction of the wharf, the exact purpose of the remedy sought and the PSAB put in place by the federal government.
A. The facts [11] Built by the Americans in 1942 (or in 1943 according to Jean-Charles Piétacho, the chief of the Innu of Ekuanitshit), the Mingan wharf is currently owned and supervised by the MFO. It is located on the north shore of the Gulf of St Lawrence bordering land belonging to the federal government. It is directly adjacent to the Ekuanitshit Aboriginal reserve and the village of Mingan. Although all the routes that give access to the wharf cross or run along the Ekuanitshit reserve, the wharf itself is not located on the reserve or surrounded by it.
[12] In September 2009, the wharf was destroyed by arson. In a letter written to the MFO at the time on September 21, 2009, Chief Piétacho stated that the fire was [translation] “an enormous catastrophe for the region of Mingamie, for which commercial fishing has an important place in the economy”. He described the wharf as the “lifeblood of the economy” and the most important infrastructure of the Ekuanitshit community and neighbouring communities. A little later in the fall of 2009, the MFO declared the wharf completely destroyed and had the remnants demolished.
[13] In the fall of 2009, steps were taken by the MFO to quickly build a temporary replacement wharf and to begin the process of rebuilding a permanent wharf. Preliminary discussions then took place between the representatives of the MFO and the Innu of Ekuanitshit.
[14] In the month of October 2009, according to one of the affiants of the federal ministers, Luc Boucher, the MFO reviewed the criteria of the PSAB in anticipation of the reconstruction of the wharf and in preparation of the work that had to be performed in the short term to construct a temporary replacement wharf. The MFO decided to immediately construct floating temporary wharfs so that they would be ready for the fishing season in April 2010. The contracts for the construction of temporary replacement wharfs were awarded by public bid solicitation. The temporary structures would stay in place for the fishing seasons 2010, 2011, 2012 and 2013.
[15] The MFO officers also then began to develop a long-term solution for the reconstruction of a permanent wharf, so as to meet the needs of the commercial fishing industry in the region. The solution contemplated specifically aims to meet the needs of the 13 commercial fishing vessels that, according to the MFO’s data, regularly use the Mingan wharf.
[16] In June 2010, the MFO gave its preliminary approval of the project to reconstruct the Mingan fishing harbour. Then it was planned that the funding for the project would come from the major capital budget of the Small Craft Harbours (SCH), a national MFO program. In November 2010, the MFO completed its comparative analysis of the various options available for a new permanent wharf and then confirmed its decision to reconstruct the wharf in Mingan. The other options considered by the MFO at the time included the relocation of the vessels to other harbours of the north shore, the construction of a new harbour in a neighbouring region and the installation of floating steel foundations.
[17] In November 2011, the MFO made the decision to proceed with the reconstruction of the permanent wharf by public bid solicitation. According to the testimony of Mr. Boucher, the MFO then informed the Innu of Ekuanitshit.
[18] In January and February 2012, discussions took place between the MFO and the Innu of Ekuanitshit on the project to reconstruct the wharf. Throughout 2012, the MFO also held several meetings with the Mingan Harbour Authority in which the various representatives of the Innu of Ekuanitshit participated and in which the MFO described the status of the project to reconstruct the wharf. In his affidavit, Yves Bernier, one of the affiants of the Innu of Ekuanitshit, indicated that the employees of the Société des Entreprises Innues d'Ekuanitshit s.e.p. (2009) (the SEIE), a local Aboriginal economic development corporation, participated on behalf of the community in several of these meetings. The SEIE has a general contractor's license from the Régie du bâtiment du Québec (the RBQ) and is 99% owned by the Société de gestion Ekuanitshinnuat inc., an incorporated company of Quebec.
[19] During these meetings, the representatives of the MFO or the MPWGS did not raise the issue of the PSAB. The evidence also shows that Mr. Boucher, the MFO employee responsible for the project to reconstruct the wharf, did not consult the federal government’s directives on consulting and accommodating Aboriginal peoples.
[20] In June 2012, SNC-Lavalin Inc. [SNC] was retained by the MPWGS, on behalf of the MFO, so as to analyze the environmental aspects of the Mingan wharf reconstruction project, in accordance with the requirements of the Canadian Environmental Assessment Act (2002), SC 2002, c 19, art 52 (the CEAA). The final version of the project’s environmental effects evaluation report would be produced by SNC in March 2013.
[21] In mid-October 2012, in the context of its study, SNC contacted the Innu of Ekuanitshit to ask them some questions on their concerns regarding the environmental effects of the reconstruction of Mingan wharf. In the start of November 2012, Mr. Bernier then sent two letters in this regard to the representative of SNC, setting out all of the grievances of the Innu of Ekuanitshit relating to the project.
[22] During a meeting held on October 22, 2012, the representatives of the Innu of Ekuanitshit asked the MFO regarding the possible participation of the Innu in the reconstruction project and the possibility that the contract to reconstruct the wharf be awarded by mutual agreement to the Innu. The MFO answered that awarding the “contract” by mutual agreement had not been considered, stated that the MFO intended to launch a public bid solicitation, informed the Innu of Ekuanitshit that this bid solicitation would be open to all and invited them to participate in the process.
[23] On November 13, 2012, the MFO approved the application for the final approval of the project to replace the Mingan wharf (at a cost of $7.4 million). The MPWGS published a notice of bid solicitation on November 30. In the meantime, between November 13 and the publication of the notice of bid solicitation on November 30, Yves Rochette, MPWGS procurement specialist, wondered whether the PSAB applies to the project. Mr. Rochette verified with the MFO and confirmed that the PSAB did not apply.
[24] On December 4, 2012, Mr. Bernier of the SEIE and the Innu of Ekuanitshit were informed of the bid solicitation. Then they asked again if the option of a contract by mutual agreement could be considered by the federal ministers. The MFO answered that it launched a public bid solicitation that aimed to award the contract to the lowest bidder and reiterated that the possibility of entering into a contract by mutual agreement was not one of the avenues considered by the Department.
[25] At the close of the bid solicitation on December 18, 2012, five compliant bids were received by the MPWGS. In January 2013, the MPWGS awarded the reconstruction contract to Hamel for $6.8 million and the award notice was published on February 5, 2013. A year later, in January 2014, Hamel completed the reconstruction of the permanent Mingan wharf.
[26] The Innu of Ekuanitshit submitted their notice of application for judicial review before the Court on March 7, 2013.
B. The application des Innu of Ekuanitshit [27] Since more than two years have elapsed since the filing of the original notice of application of the Innu of Ekuanitshit and that the reconstruction of the Mingan wharf was completed in the meantime, the nature of the remedies sought by the Innu of Ekuanitshit has changed.
[28] In their notice of amended application of August 2013, the Innu of Ekuanitshit sought the following different remedies:
[translation]
1. A declaration that the ministers of Fisheries and Oceans Canada and Public Works and Government Services Canada …:
a. did not adequately fulfil their duty to consult the Innu of Ekuanitshit on the components of the project to reconstruct the Mingan wharf that might adversely affect their Aboriginal rights; and
b. did not seek, in a spirit of conciliation, the accommodation measures required by the honour of the Crown;
2. A declaration that for the purposes of the Treasury Board’s Contracting Policy Notices (CPM) 1996-2 and 1997-6 and of the Procurement Strategy for Aboriginal Business (PSAB) that these notices created:
a. the reconstruction of Mingan wharf constitutes construction subject to the federal procurement process, the cost of which exceeds $5,000;
b. the Mingan wharf is part of a region composed of the Indian reserve of Ekuanitshit (Mingan) and where Aboriginal people form more than 80% of the population; or
c. the Innu of Ekuanitshit, alone or with the other members of the Innu Nation, form a group of people receiving goods and services constituted by the reconstruction of Mingan wharf and this group is composed of 100% Aboriginal people;
d. the reconstruction of Mingan wharf constitutes goods or services for which “Aboriginal populations are the primary recipients” and that are subject to the PSAB.
3. A declaration that the Société des entreprises Innues d’Ekuanitshit s.e.p. (2009) is an “Aboriginal business” within the meaning of the CPM 1996-2 and 1997-6 for the purposes of the PSAB that these notices were created;
Cancellation of the acts
4. The cancellation of the contract award by the Minister of Public Works and Government Services under reference number PW-$QCM-008-15052 because of its unreasonableness and illegality;
5. Alternatively
a. the cancellation of the notice of the bid solicitation entitled “Reconstruction of Mingan wharf”, published on November 30, 2012 under reference number PW-$QCM-005-15052;
b. the extension of time under subs. 18.1(2) of the Federal Courts Act so as to allow applicants to challenge this act, if applicable, and
c. an order under section 302 of the Federal Courts Rules to allow this application to bear on more than one decision, if applicable;
Referral as directed
6. The referral of procurement established by the reconstruction of Mingan wharf back to the Minister of Fisheries and Oceans and the Minister of Public Works and Government Services, so that they may
a. consult, in accordance with s. 35 of the Constitution Act, 1982, the Innu of Ekuanitshit on the components of the project that may adversely affect their rights and seek accommodation measures as required by the honour of the Crown;
b. determine whether for this project “the nature of the work is such that it would not be in the public interest to solicit bids” within the meaning of the Government Contracts Regulations, SOR/87/402, para. 6(c);
c. determine whether Aboriginal suppliers are “capable of responding to the needs” for this project and, as required, they launch a bid solicitation “with qualified Aboriginal suppliers in accordance with the purpose of the PSAB” under the CPM 1996-2, para. 4 to 9, and the CPM 1997-6, para. 2.2.1;
d. alternatively, prepare a bid solicitation to “request Aboriginal business sub-contracting plans” as permitted under the CPM 1997-6, para. 3.3.1.;
Prohibition
7. A writ of prohibition against the Minister of Public Works and Government Services and the Minister of Fisheries and Oceans to prevent them from doing any act that would allow the execution by Hamel Construction Inc. of the contract awarded under reference number PW-$QCM-008-15052.
[29] In their memorandum of fact and law submitted in May 2014, however, the order required by the Innu of Ekuanitshit was more limited and required that this Court, in addition to any costs:
[translation]
A. A declaration that the federal ministers have not adequately fulfilled their duty to consult and accommodate the Innu of Ekuanitshit before making the decision established by the award of the contract to reconstruct the Mingan wharf or, alternatively, the decision established by the notice of bid solicitation relating to the same project;
B. A declaration that the reconstruction of Mingan wharf constituted goods or services subject to the PSAB and that the MPWGS awarded the contract illegally owing to its violation of the PSAB;
C. Alternatively, if the contract award and its submission to a bid solicitation constituted more than one decision, an order under section 302 to enable this application to relate to more than one decision and the extension of time under para 18.1(2) of the FCA so as to challenge the bid solicitation.
[30] Then, during the hearing before this Court, counsel for the Innu of Ekuanitshit specified that the only remedies now sought were indeed declaratory in nature. The Innu of Ekuanitishit no longer require the cancellation of the contract award or the notice of bid solicitation launched for the reconstruction of Mingan wharf, the referral of the procurement to the MFO and the MPWGS, or the issue of a writ of prohibition against the federal ministers.
[31] That said, the dispute still relates to the two decisions relating to the reconstruction of Mingan wharf: first, the decision made in February 2013 by the MPWGS awarding to Hamel the contract requested by the MFO and, second, the decision made in November 2012 to make a bid solicitation to award this contract. The Innu of Ekuanitshit consider these two decisions as inseparable. In both cases, according to the Innu of Ekuanitshit, they contain no allusions to the PSAB (which was not applied to them) or to the duty to consult and accommodate and it is these violations by the federal ministers that are the basis of their application for judicial review and the declaratory relief that they seek.
C. The PSAB [32] The PSAB was launched in 1996 by the federal government to help Aboriginal businesses bid on federal contracts (i.e. contracts with the federal government) and thus win more contracts with federal departments and agencies. It is an initiative of the Government of Canada that is administered by the Minister of Aboriginal Affairs and Northern Development Canada (the AANDC), but all federal departments and agencies are encouraged to participate in it.
[33] The PSAB is part of the Treasury Board Contracting Policies, which govern the awarding of contracts by the federal government and promote Aboriginal businesses in Canada. The Treasury Board Contracting Policy is established under subsection 7(1) of the Financial Administration Act, RSC 1985, c F-11 (the FAA). Therefore PSAB falls under the policies that govern the procurement of goods, services and construction by the contracting authorities responsible for contracting for the Government of Canada.
[34] Four policies were issued by the Treasury Board to create and govern the PSAB and to limit its application: the Aboriginal Business Procurement Policy and Incentives - Contracting Policy Notice 1996-2 (the CPM 1996-2), adopted in March 1996; the Aboriginal Business Procurement Policy Performance Objectives - (Contracting Policy Notice 1996-6) (the CPM 1996-6), adopted in September 1996; the Aboriginal Business Procurement Policy - Contracting Policy Notice 1996-10; and the Procurement Policy for Aboriginal Business: Guidelines for Buyers/Government Officials (Contracting Policy Notice 1997-6) (the CPM 1997-6), adopted in August 1977. The PSAB applies to contracts awarded by the federal government as of April 1, 1996.
[35] The CPM 1996-2 of March 1996 lays the foundations of the PSAB. It sets out in article 1 that with the PSAB, the government approved a “program designed to increase Aboriginal business participation in supplying government procurement requirements”. It added to article 2 that the government has accepted that “all departments and agencies shall initiate or participate in supplier development activities aimed specifically at Aboriginal businesses”. Article 5 provides the following so that the PSAB qualifies as “mandatory setasides”:
5. The new policy is broad in scope. The first phase, which becomes effective on April 1, 1996, requires all Contracting Authorities, where a procurement is valued in excess of $5,000, and for which Aboriginal populations are the primary recipients, to restrict this procurement to qualified Aboriginal suppliers where operational requirements, best value, prudence and probity, and sound contracting management can be assured. Contracts valued at less than $5,000 may also be set aside for qualified Aboriginal suppliers if it is practical to do so.
5. La nouvelle politique a une vaste portée. À partir du 1er avril 1996, date à laquelle entrera en vigueur la première phase du programme, lorsque la valeur d'une commande dépasse 5 000 dollars et que les biens ou services sont destinés principalement à des populations autochtones, toutes les autorités contractantes devront inviter à soumissionner uniquement des fournisseurs autochtones qualifiés, dans la mesure où sont satisfaits les exigences opérationnelles, et les critères relatifs à la meilleure valeur, à la prudence, à la probité et à la saine gestion des marchés. Les marchés d'une valeur inférieure à 5 000 dollars peuvent également être réservés aux fournisseurs autochtones pour des raisons pratiques.
…
[…]
Definitions
Définitions
…
[…]
“Aboriginal Business”
“Entreprise autochtone”
An Aboriginal business is an enterprise that is:
Une entreprise autochtone est :
a. a sole proprietorship, limited company, cooperative, partnership, or notforprofit organization
a) une entreprise à propriétaire unique, une société à responsabilité limitée, une coopérative, une société en nom collectif ou une entité sans but lucratif :
in which Aboriginal persons have majority ownership and control meaning at least 51 percent, and
dans laquelle des autochtones détiennent le contrôle et une participation majoritaire, c'est à dire au moins 51 p. 100 des actions, et
in which, in the case of a business enterprise with six or more fulltime employees, at least 33 percent of the fulltime employees are Aboriginal persons,
dans laquelle, s'il s'agit d'une entreprise commerciale de six employés à temps plein ou plus, au moins 33 p. 100 des employés à temps plein sont des autochtones;
Or
Ou
a. a joint venture or consortium in which an Aboriginal business or Aboriginal businesses as defined in (a) have at least 51 percent ownership and control, and
a) une coentreprise ou un consortium dans lequel une ou plusieurs entreprises autochtones définies au paragraphe a) ci-dessus détiennent le contrôle et au moins 51 p. 100 des actions, et
b. which certifies in bid documentation that it meets the above eligibility criteria, agrees to comply with required Aboriginal content in the performance of the contract, and agrees to furnish required proof and comply with eligibility auditing provisions.
b) qui, dans les documents de soumission, atteste répondre aux critères d'admissibilité ci-dessus, consent à respecter les critères relatifs à la teneur autochtone dans l'exécution du marché et qui accepte de fournir les preuves requises et de se conformer aux dispositions sur la vérification d'admissibilité.
…
[…]
“Aboriginal Population”
“Population autochtone”
Aboriginal Population means:
Population autochtone désigne:
a. an area, or community in which Aboriginal people make up at least 80 percent of the population;
a) une région ou une collectivité où les autochtones constituent au moins 80 p. 100 de la population;
b. a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group.
b) un groupe de personnes destinataire d'un approvisionnement qui est formé d'autochtones dans une proportion d'au moins 80 p. 100.
[36] Therefore, under the terms of the CPM 1996-2, the PSAB is imperative when the conditions for a contract mandatorily set aside for Aboriginal people are fulfilled: it prescribes that the contracting authorities must invite only qualified Aboriginal suppliers to bid when the value of an procurement exceeds $5,000, where the goods or services for which “Aboriginal populations are the primary recipients”, and that the operational requirements, best value, prudence and probity, and sound contracting management can be assured. Article 9 of the CPM 1996-2 also provides that, for other procurement projects, Aboriginal businesses should be encouraged to act as subcontractors.
[37] Therefore, the PSAB appears as a mandatory program for all departments and the CPM 1996-2 also establishes that the government expects that its departments preach by example in entering into contracts with qualified Aboriginal businesses. Under the terms of the CPM 1996-2, a contracting authority subject to the PSAB must thereby determine whether a procurement project that it is considering must be set aside for Aboriginal businesses as part of the PSAB.
[38] The CPM 1996-6 specifies other requirements to be entitled to the PSAB. This second directive requires, in fact, that the Aboriginal bidder must be an Aboriginal business that meets the control requirements by Aboriginal people. This notice also provides subcontracting and certification requirements. Therefore, if a department determines that the PSAB applies, it is thus mandatory to determine whether Aboriginal suppliers are able to meet the procurement needs in question. The CPM 1996-6 reiterates that the PSAB is designed to increase Aboriginal business participation in government procurement through mandatory and selective set asides and supplier development activities.
[39] The CPM 1997-6 provides some guidelines and recalls that the federal government is determined to increase its contracts with Aboriginal businesses. Echoing the CPM 1996-2, it describes the mandatory setasides as those for which goods or services are “destined primarily for Aboriginal populations as defined in [the CPM 1996-2]” (para 2.6.1). The CPM 1997-6 also added, under incentives for Aboriginal suppliers, that subcontracting is “of further benefit to Aboriginal business” and that all departments and agencies awarding contracts are “encouraged to request Aboriginal business sub-contracting plans” (para 3.3.1).
[40] The CPM 1997-6 also indicates at para 4.6.1, that “[a]ll of the sole sourcing techniques may be employed for requirements identified as set-aside”, in which case a single supplier may be solicited. Finally, it adds, at para 8.1.1, It is the responsibility of the contracting authority to “decide if a procurement opportunity is to be set aside under (the PSAB), including initial determination of a mandatory requirement”.
[41] Regarding the four Treasury Board Policies, the MPWGS also published a “Supply Manual” which includes the supply policy of the MPWGS and the references to the applicable legislation, regulations, and government and departmental policies. This manual includes section 9.40 relating to the PSAB, which also reproduced the different attributes of the PSAB. The Manual specifies at paragraph 9.40.1, with respect to mandatory setasides, that it is “mandatory to set aside a procurement under PSAB if an Aboriginal population is the primary recipient or end user of the goods or services being procured”, in addition to other conditions described in the Manual.
[42] Therefore, the Court observed that there is consistency in the different policy statements and directives issued by the Treasury Board and the MPWGS regarding the PSAB. The following key elements arise:
The purpose of the PSAB is to increase Aboriginal business participation in supplying federal government procurement requirements; The contracting authority must establish whether, for a given procurement, a mandatory setaside exists within the meaning of the PSAB; A mandatory setaside is one where a procurement is valued in excess of $5,000, where goods or services for which “Aboriginal populations are the primary recipients”, and where operational requirements, best value, prudence and probity, and sound contracting management can be assured; An Aboriginal population is either “an area, or community in which Aboriginal people make up at least 80 percent of the population” or “a group of people for whom the procurement is aimed in which Aboriginal people make up at least 80 percent of the group”; If the conditions for a mandatory setaside exist, the contracting authority must only solicit Aboriginal suppliers qualified to bid; The contracting authority is also prompted to consider and encourage Aboriginal business sub-contracting; The sole sourcing techniques may be employed for requirements identified as set aside for Aboriginal businesses.
[43] Under the application of the PSAB, businesses considered for a federal contract are qualified Aboriginal bidders. However, the Government Contracts Regulations, SOR/87-402 (the Regulations) nevertheless continues to apply, which means, for example, that contracting normally initiates a bid solicitation, that all qualified bidders have equal access to contracts offered and that the usual bid solicitation methods of the federal government still govern mandatory setasides under the PSAB. However, the Regulations provides, among other things that some procurements must be of such a nature that a bid solicitation would not serve the public interest in the circumstances (para 6(c)).
III. Preliminary matters [44] The AGC and the Innu of Ekuanitshit raise various preliminary matters that are important to deal with before addressing the issues. They relate to the delay in submitting the application for judicial review, the interest of the Innu of Ekuanitshit, the mootness of the remedies sought and the strike-out of a portion of the affidavit of Mr. Boucher.
A. Is the application late? [45] The AGC argued that, since the original notice of application of the Innu of Ekuanitshit concerned only the MPWGS’s contract award to reconstruct the wharf but in reality, the remedy relates to the earlier MFO decision to initiate a bid solicitation, the dispute of this first decision is late and must be rejected. Indeed, the original notice of application contained no allegation of misconduct or illegality in the tendering process. According to the AGC, the Innu of Ekuanitshit filed their amended notice of application several months after the submission of their initial notice and after all the parties had filed their affidavits and despite the fact that they were aware of the MFO’s decision to proceed by bid solicitation since at least November 2012. Furthermore, according to the AGC, the Court should not grant the Innu of Ekuanitshit an extension of time under section 18.1 of the Federal Courts Act, RSC 1985, c F-7 (the FCA) since the respondents have not met the requirements prescribed by case law to obtain such an extension of time (Canada (Attorney General) v Larkman, 2012 FCA 204 (Larkman) at para 61; Canada (Attorney General) v Lacey, 2008 FCA 242 (Lacey) at para 2).
[46] The Court does not share the AGC’s position in this regard.
[47] The purpose of this dispute and the application for judicial review filed by the Innu of Ekuanitshit is the alleged failure of the federal ministers to apply the PSAB and comply with their duty to consult and accommodate in the process that led to the decisions to initiate a bid solicitation for the project to reconstruct the wharf and award the contract to Hamel. The Innu of Ekuanitshit argued that, in this context, the contract award and its submission to a tendering process are an inseparable pair of decisions made by the federal ministers. The Court agrees with the Innu of Ekuanitshit on this point.
[48] The decisions not to apply the PSAB and to initiate a public bid solicitation that ended in awarding the contract to reconstruct the wharf to Hamel can and must be considered as being part of the same decision for the purposes of this application for judicial review. Indeed, they are different sides of the same coin: when the MFO determined that it was not appropriate to apply the PSAB, it thus inevitably decided to proceed by public bid solicitation; conversely, by deciding to publish a bid solicitation and award the contract to Hamel, it is clear that the MFO and the MPWGS have, by necessary implication, excluded the PSAB application. Moreover, although the Court had to consider that the decision under review is truly the bid solicitation requested by the MFO and initiated by the MPWGS, the fact remains that the decision on the bid solicitation becomes final only once the contract is reached and awarded to a bidder. Furthermore, the Regulations provide at article 5 that the reaching of a contract by the federal government is directly linked to the initiation of a bid solicitation. Therefore, it was right for the Innu of Ekuanitshit to wait for the outcome of the process and the contract award before filing their notice of application; otherwise, the decision of the MFO and the MPWGS to initiate the bid solicitation would not have been a final decision (MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2007 FC 955 at para 148).
[49] Furthermore, although it was considered that more than one decision is at issue in this file, the Court is of the view that this succession of decisions by the MFO and the MPWGS is part of a single conduct that may, in the circumstances, be the subject of a single order within the meaning of section 302 of the Federal Courts Rules, SOR/98-106. Indeed, the MFO’s decision and that of the MPWGS are a single series of acts and they are “so closely linked as to be properly considered together”. (Shotclose v Stoney First Nation, 2011 FC 750 (Shotclose) at para 64; Canadian Assn. of the Deaf v Canada, 2006 FC 971 at para 66).
[50] In addition, the Court noted Huu-Ay-Aht First Nation v British Columbia (Minister of Forests), 2005 BCSC 697 at para 104, cited by the Innu of Ekuanitshit, which states that the concept of “decisions” must not be strictly applied when there is a statutory authorization for a governmental initiative that directly affects the constitutional rights of the First Nations. This matter concerned the application of the duty to consult and accommodate the Crown (within the meaning of Haida), and the principle of broad and liberal interpretation that it sets out for the decisions that affect Aboriginal rights has since been largely followed by the courts. It supports an approach that the decisions at issue in this matter are seen as an inseparable whole for the purposes of the application for judicial review lodged by the Innu of Ekuanitshit.
[51] Finally, in any case, subsection 18.1(2) of the FCA confers on the Court discretion to award an extension of time imparted to submit an application for judicial review. Therefore, it is sufficient that the conditions established by Larkman and Lacey are met, that the applicant demonstrated a constant intention to pursue his application, that the application contemplated reflects some merit and raises defendable grounds for review, that the granting of an extension of time will not cause harm to the respondent and that a reasonable explanation exists to justify the delay. The Court is of the view that these conditions are met in the circumstances and that, if required, it will be appropriate to exercise its discretion in granting the extension of time to allow the Innu of Ekuanitshit to dispute the notice of bid solicitation published on November 30, 2012 by the MPWGS.
[52] Indeed, the sources of this dispute, on one side, are the decision of the MFO and the MPWGS to set aside the PSAB and initiate a bid solicitation for the reconstruction of Mingan wharf, which led to a contract awarded to Hamel and, on another side, the failure of federal ministers to honour their duty to consult and accommodate throughout the process. The Court is satisfied, with respect to the evidence on file, that the Innu of Ekuanitshit have always had an ongoing intention to pursue their application for judicial review of these decisions, and that their application reflects some merit and a strong foundation. In addition, since the application no longer seeks to cancel Hamel’s reconstruction contract or the prohibition of the work to reconstruct Mingan wharf, the Court considers that granting an extension of time does not cause ha