Tsleil-Waututh Nation v. Canada (Attorney General)

Tsleil-Waututh Nation v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-06-16
Neutral citation
2017 FCA 128
File numbers
A-217-16, A-218-16, A-223-16, A-224-16, A-225-16, A-232-16, A-68-17, A-73-17, A-74-17, A-75-17, A-76-17, A-77-17, A-78-17, A-84-17, A-86-17
Decision Content
Date: 20170616
Dockets: A-78-17 (lead file); A-217-16; A-218-16;
A-223-16; A-224-16; A-225-16; A-232-16;
A-68-17; A-73-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17; A-86-17
Citation: 2017 FCA 128
Present: STRATAS J.A.
BETWEEN:
TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝ AM, CHIEF IAN CAMPBELL on his own behalf and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of all members of the Coldwater Band, MUSQUEAM INDIAN BAND, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE, SKWAH, KWAW-KWAW-APILT, CHIEF DAVID JIMMIE on his own behalf and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
Applicants
and
ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD and TRANS MOUNTAIN PIPELINE ULC
Respondents
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on June 16, 2017.
REASONS FOR ORDER BY:
STRATAS J.A.
Date: 20170616
Dockets: A-78-17 (lead file); A-217-16; A-218-16;
A-223-16; A-224-16; A-225-16; A-232-16;
A-68-17; A-73-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17; A-86-17
Citation: 2017 FCA 128
Present: STRATAS J.A.
BETWEEN:
TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝ AM, CHIEF IAN CAMPBELL on his own behalf and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of all members of the Coldwater Band, MUSQUEAM INDIAN BAND, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE, SKWAH, KWAW-KWAW-APILT, CHIEF DAVID JIMMIE on his own behalf and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
Applicants
and
ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD and TRANS MOUNTAIN PIPELINE ULC
Respondents
and
ATTORNEY GENERAL OF ALBERTA
Intervener
REASONS FOR ORDER
STRATAS J.A.
A. Introduction [1] There are two motions before the Court:
• The June 2, 2017 motion of the applicant, the Tsleil-Waututh Nation. It objects to the inadequate state of the evidentiary record placed before the Court in these consolidated applications for judicial review. Among other things, it seeks production of relevant documents from Canada.
• The June 6, 2017 motion of the Attorney General of Canada. The Attorney General seeks leave to add a supplementary affidavit to the evidentiary record. The supplementary affidavit corrects errors and omissions in an earlier affidavit.
B. The judicial review proceedings before the Court [2] Before the Court are fifteen applications for judicial review, now consolidated, in which, collectively, twenty-seven parties seek to quash certain administrative decisions approving the Trans Mountain Expansion Project. The decisions are a Report dated May 19, 2016 by the National Energy Board, purportedly acting under section 52 of the National Energy Board Act, R.S.C. 1985, c. N-7 and the Order in Council, PC 2016-1069, dated November 29, 2016 and made by the Governor in Council. It can be found in the Canada Gazette, Part I, vol. 150, no. 50, December 10, 2016.
[3] In brief, the Project—the capital cost of which is $7.4 billion—adds new pipeline, in part through new rights of way, thereby expanding the existing 1,150-kilometre pipeline that runs roughly from Edmonton, Alberta to Burnaby, British Columbia. The Project also entails the construction of new works such as pump stations and tanks and the expansion of an existing marine terminal. The immediate effect will be to increase capacity from 300,000 barrels per day to 890,000 barrels per day.
[4] The applicants challenge the administrative approvals on a number of grounds. In support of their challenges, the applicants invoke administrative law and relevant statutory law. The Indigenous applicants also invoke section 35 of the Constitution Act, 1982 and associated case law concerning the obligations owed to them, including Canada’s duty to consult and, in some cases, to accommodate. The applicants also raise many issues concerning the Project’s “environmental effects,” as defined by section 5 of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
[5] These consolidated applications have been progressing quickly. In the space of roughly three months, counsel have worked hard getting the matter ready for hearing, guided by 3 sets of detailed reasons, 8 orders and 14 directions (including the reasons and order on these motions). The hearing will take place in early October, 2017.
C. The motion of the Attorney General of Canada [6] In response to the applications for judicial review and several affidavits filed in support of the applications, the Attorney General filed an affidavit of Mr. Gardiner. The aim of his affidavit is to supply evidence concerning what has taken place concerning the duty to consult and accommodate Indigenous groups.
[7] Mr. Gardiner has now sworn a supplementary affidavit to correct dates in his original affidavit and supply missing records. The errors and omissions are said to be inadvertent.
[8] The Attorney General of Canada now moves for leave to file the supplementary affidavit. Trans Mountain consents.
[9] The Indigenous applicants either take no position or do not oppose the Attorney General’s motion. However, four Indigenous applicants noted that portions of the supplementary affidavit were irrelevant to the consolidated applications. The Attorney General has agreed to remove the irrelevant portions.
[10] The authority for allowing a party to file an additional affidavit on judicial review is Rule 312 of the Federal Courts Rules, SOR/98-106. The Rule merely permits such a filing with leave of the Court. It does not set out any criteria for the granting of that leave.
[11] However, case law under Rule 312 assists. Additional affidavits are permitted only where it is “in the interests of justice”: Atlantic Engraving Ltd. v. LaPointe Rosenstein, 2002 FCA 503, 299 N.R. 244 at paras. 8-9. The case law shows that the Court must have regard to whether:
• the evidence will assist the court (in particular, its relevance and sufficient probative value);
• admitting the evidence will cause substantial or serious prejudice to the other side;
• the evidence was available when the party filed its affidavits or it could have been discovered with the exercise of due diligence.
(Holy Alpha & Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101, 392 N.R. 248 at para. 2; Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 88 at para. 6; House of Gwasslaam v. Canada (Minister of Fisheries & Oceans), 2009 FCA 25, 387 N.R. 179 at para 4.) I note that this Court has applied these same factors in deciding whether a reply affidavit should be permitted to be filed in an application for leave to appeal under Rule 355, a rule that, like Rule 369(3), does not explicitly allow reply affidavits: Quarmby v. National Energy Board of Canada, 2015 FCA 19.
[12] On balance, these factors lie in favour of admitting Mr. Gardiner’s supplementary affidavit into these consolidated applications.
[13] The dominant consideration underlying my exercise of discretion is that a fuller and more accurate record will promote the proper determination of the applications on their merits, consistent with Rule 3 of the Federal Courts Rules. Rule 3 provides that the Rules “shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.”
[14] The applicants have offered no evidence of prejudice and, in fact, do not oppose. Cross-examinations of Mr. Gardiner have not yet taken place. Corrections of errors and the supplementing of information likely would have taken place at those cross-examinations anyway. The Court will also be open to an extension of the period for cross-examinations should the applicants request it, as long as the consolidated applications are ready for hearing on the date set by the Court.
[15] No doubt more complete and more accurate information was available earlier and ideally should have appeared in Mr. Gardiner’s first affidavit. This motion could have been brought sooner but it was delayed by Mr. Gardiner’s absence from Canada. The Attorney General has brought this motion just before cross-examinations were to start. The delay is unfortunate—especially since this Court’s Order of March 9, 2017 expedites these proceedings, sets a strict schedule, and warns all parties that “the schedule will be amended only if absolutely necessary.” But the Attorney General’s motion does not materially affect the progress of these proceedings.
[16] Thus, leave shall be granted to admit Mr. Gardiner’s supplementary affidavit (with the irrelevant portions removed) into these proceedings.
D. The motion of the Tsleil-Waututh Nation (1) Introduction [17] The Tsleil-Waututh Nation has moved for an order to address what it says are serious deficiencies in the evidentiary record before this Court. The Indigenous applicants support the Tsleil-Waututh Nation.
[18] The Tsleil-Waututh Nation says that a request for disclosure under Rule 317 Federal Courts Rules has gone unfulfilled. It also says that the materials that the Governor in Council relied upon in making its decision to approve the Trans Mountain Extension Project are not all before the Court. And, more generally, it says that more evidence is in the possession of Canada and should be produced.
[19] Mixed in with its motion are issues concerning section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the provision that allows Canada to assert that certain information considered by the Governor in Council, commonly called the Cabinet, cannot be disclosed. Canada issued a section 39 certificate here. As we shall see, it also did this in the recent successful challenge in this Court to the Northern Gateway Pipeline Project: Gitxaala Nation v. Canada, 2016 FCA 187 (“Gitxaala Nation (2016)”). As a result, certain information the Governor in Council considered in making its decision will not be placed before the Court.
(2) The issues before the Court [20] The motion brought by the Tsleil-Waututh Nation raises several issues concerning the record before the reviewing court in judicial review proceedings:
• The sufficiency of Canada’s certificate under section 39 of the Canada Evidence Act and the effect of the certificate, which is to prohibit any disclosure of the evidence considered by the Governor in Council to the parties and to the reviewing court.
• The importance and role of the record before the reviewing court.
• The function and limits of Rule 317 of the Federal Courts Rules. This is the Rule that provides for an applicant to obtain the evidence that was before the administrative decision-maker. Related to this, though not in issue here, is how the applicant places the evidence, once obtained, before the administrative decision-maker.
• The admissibility in the reviewing court of evidence other than that which was before the administrative decision-maker.
• Whether, notwithstanding the above, an applicant in a judicial review may compel production of evidence from the administrative decision-maker or from others and have it placed before the reviewing court. In what circumstances should the reviewing court make a production order?
• Where, in the end, there are gaps in the evidentiary record before the reviewing court, how, if at all, can the reviewing court go about its task of review?
The submissions before me address or touch on these issues—all of which bear to a varying degree on what the Tsleil-Waututh Nation seeks in this motion.
(3) Should this Court decide the motion now? [21] This motion has been brought on an interlocutory basis. As is the normally the case for interlocutory motions raised on judicial review, the Court must consider whether the motions should be decided now or whether they should be left for the hearing panel.
[22] Before us are issues concerning the content and sufficiency of the evidentiary record before the reviewing court. On an application for judicial review, the reviewing court can handle these issues and often does.
[23] In my view, there is enough legal certainty surrounding this motion and its outcome on the facts for it to be determined now. As well, resolving a number of points raised by the motion and settling the parties’ situations in this litigation will allow the parties to proceed in an orderly way with the pre-hearing cross-examinations and the hearing itself. Indeed, I expect that these reasons may assist the parties in focusing the submissions that they will make to the panel hearing these consolidated applications. See generally Collins v. Canada, 2014 FCA 240, 466 N.R. 127 at paras. 6-7; Gitxaala Nation v. Canada, 2015 FCA 27 at paras. 7 and 12; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at paras. 9-12 (“Bernard (2015)”); McConnell v. Canada (Canadian Human Rights Commission), 2004 FC 817, aff’d 2005 FCA 389; Canadian Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 8, 200 F.T.R. 94.
(4) Has Canada complied with section 39 of the Canada Evidence Act? [24] Canada has issued a certificate under section 39 of the Canada Evidence Act. Section 39 “is Canada’s response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings”: Babcock v. Canada, 2002 SCC 57, [2002] 3 S.C.R. 3 at para. 21.
[25] Certificates are issued to protect Cabinet confidences and nothing more. A certificate cannot be issued to “thwart public inquiry” or “gain tactical advantage in litigation”: Babcock at para. 25.
[26] According to the Supreme Court in Babcock (at para. 27), a certificate is valid if it is done by the Clerk or a Minister of the Crown, it relates to the information set out in subsection 39(2), it is done bona fide, and it is aimed at preventing disclosure of information that has been and is confidential.
[27] The role of this Court in reviewing a section 39 certificate is limited. We must refuse disclosure of the information covered by the certificate “without examination or hearing of the information”: Babcock at para. 38. We only review to ensure that the decision to make the certificate and the certificate itself “flow from statutory authority clearly granted and properly exercised”: Babcock at para. 39, citing Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689.
[28] In practice, this means the Court may consider whether the information for which immunity is claimed does not fall within subsection 39(2) or whether the Clerk or Minister has improperly exercised the discretion conferred by subsection 39(2): Babcock at para. 39. The Supreme Court amplified on this as follows (at para. 40):
The court, person or body reviewing the issuance of a s. 39 certificate works under the difficulty of not being able to examine the challenged information. A challenge on the basis that the information is not a Cabinet confidence within s. 39 thus will be generally confined to reviewing the sufficiency of the list and evidence of disclosure. A challenge based on wrongful exercise of power is similarly confined to information on the face of the certificate and such external evidence as the challenger may be able to provide. Doubtless these limitations may have the practical effect of making it difficult to set aside a s. 39 certification.
[29] The certificate covers the following documents:
#1: Letter to the Honourable Scott Brison, President of the Treasury Board, in November 2016 from the Honourable Jim Carr, Minister of Natural Resources, regarding the scheduling of consideration of a proposed Order in Council concerning the Trans Mountain Expansion Project.
This information is a record reflecting communications between ministers of the Crown concerning agenda of Council. The information is therefore within the meaning of paragraphs 39(2)(c) and 39(2)(d) respectively of the Canada Evidence Act.
#2: Submission to the Governor in Council in November, 2016 in English and French from the Honourable Jim Carr, Minister of Natural Resources, regarding a proposed Order in Council concerning the Trans Mountain Expansion Project, including signed Ministerial recommendation, summary and accompanying materials.
This information, including all its attachments in their entirety which are integral parts of the document, constitutes a memorandum the purpose of which is to present proposals or recommendations to Council. The information is therefore within the meaning of paragraphs 39(2)(a) of the Canada Evidence Act.
[30] The Tsleil-Waututh Nation submits that Canada has not complied with section 39 of the Canada Evidence Act: the documents are not sufficiently described. It says that the certificate does not specify the exact dates on which Documents #1 and #2 on the certificate were delivered to their recipients. Further, it says that there is no itemized and specific description of the materials that are said to have accompanied Document #2.
[31] Babcock guides this Court in cases where, as here, the sufficiency of the description of documents is contested (at para. 28):
It may be useful to comment on the formal aspects of certification. As noted, the Clerk must determine two things: (1) that the information is a Cabinet confidence within s. 39; and (2) that it is desirable that confidentiality be retained taking into account the competing interests in disclosure and retaining confidentiality. What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk’s decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk’s determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her. [emphasis added]
[32] In this passage, the Supreme Court says that the description should approximate “the kind of description required for claims of solicitor-client privilege under the civil rules of court.” But it adds that “normally” the “date, title, author and recipient of the document” should be disclosed.
[33] These two statements conflict somewhat. To assert solicitor-client privilege successfully over a document, it is not always necessary to disclose the date, title, author and recipient of the document. Sometimes the disclosure of this information—especially the title of the document—can reveal privileged information. In my view, based on a complete reading of Babcock, the dominant consideration that overrides this potential conflict is that the certificate must provide enough information to allow a court to assess, from the face of the certificate, that the Clerk has listed documents that fit under section 39, and has not exceeded her or his statutory powers.
[34] Document #2 meets this overall test. A submission from a particular Minister to the entire Governor in Council during the month of its meeting (November, 2016) with “signed Ministerial recommendation, summary and accompanying materials”—attachments that are said to be “integral parts of the document [i.e., the submission]”—qualifies for protection under paragraph 39(2)(a) (“a memorandum the purpose of which is to present proposals or recommendations to Council”) and paragraph 39(2)(d) (“a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy”).
[35] Would a description such as the one provided here be adequate for the assertion of a claim of solicitor-client privilege? In my view, yes.
[36] Suppose a lawyer writes a memorandum dated “November 2016” to her team of lawyers concerning litigation their client is defending. The litigation concerns breach of contract. The memorandum is for the team to consider in advance of a meeting at which the team will decide upon a course of action for their client. In the memorandum, the lawyer set out her recommendations and attached certain documents so that her team could consider the matter properly. On this description alone, the entire bundle of documents would be privileged. See, for example, the discussion of privilege in Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81.
[37] This is not to say that individual documents that are attached are privileged for all time in all contexts. Suppose one of the documents considered by the lawyer team is a contract entered into between the client and the opposite party in litigation. In the bundle of documents supplied to the lawyer team, it is privileged. The opposite party has no right to see what the lawyer team considered in its meeting about the client’s affairs. However, the contract itself will be admissible in the litigation.
[38] The Tsleil-Waututh Nation complains that the exact dates and titles of documents are not disclosed and this triggers a consequence: under Babcock (at para. 28) when there is such non-disclosure, “the onus falls on the government to establish [the documents fall under section 39], should a challenge ensue.” That may be so, but for the reasons set out above, that onus has been met, merely from the description provided on the face of the certificate: a description that has persuaded me that here there has not been any exceedance of statutory power.
[39] Further, concerning the undisclosed exact dates and titles, I note that in the solicitor-client context—one that Babcock invites us to use—disclosure of such information can reveal privileged information. In the above example, if the lawyer team were to disclose to the other side the title, the authors and the date of the contract, the other side would know that the lawyer team had the contract before them. If the lawyer team were to disclose the title, the authors, the dates and recipients of all the attachments, the other side might well be able to piece together what was placed before the lawyer team. Indeed, with that information, it might be able to take an informed guess regarding the subject matter of the issue the lawyer team was considering.
[40] The description of Document #2 says that “all its attachments in their entirety…are integral parts of the document” which is described as a “[s]ubmission to the Governor in Council.” This suggests that a more particularized description of the attachments, such as their exact dates, authors and titles—like the contract in the above example—would shed light on what the submission said and, thus, reveal a Cabinet confidence.
[41] In its reply submissions, the Tsleil-Waututh Nation asks the Court to draw an inference that the Clerk has selectively withheld disclosure of the exact dates to gain a tactical litigation advantage. On the material before me, I see no basis for drawing that inference, nor do I see any evidence of bad faith. As I have explained, the more likely reason why exact dates and some other specifying information have not been provided is that parties may be able to deduce exactly what was placed before and discussed by the Governor in Council, undercutting the protective purpose of section 39 of the Canada Evidence Act.
[42] In this case, I consider the description of Document #2 adequate. If more particularity in the descriptions were supplied, there would be a substantial likelihood that the information that lies at the heart of what section 39 exists to protect would be disclosed to some extent. Enough concerning Document #2 has been disclosed to convince me that the decision to make the certificate and the certificate itself, in the words of Babcock, “flow from statutory authority clearly granted and properly exercised.”
[43] Document #1 stands in a different position. It is a letter in November 2016 from one Minister to another “regarding the scheduling of consideration” of a proposed order in council concerning the Project. We know that the Order in Council was made on November 29, 2016. Is a discussion of the timing of a meeting, without more, a confidence falling under subsection 39(2)? The Attorney General offered no cases on this specific point, nor could I find any myself.
[44] But the description does not stop with timing. It adds that the communication is “concerning [the] agenda” of the Council. This injects vagueness and inconsistency into the description. Does Document #1 go beyond the timing and shed light on substantive reasons that might affect the timing, such as the preparation of the submission to the Governor in Council? Does the mere fact there is a discussion of timing taking place reveal something that is covered within subsection 39(2)? Does the communication contain a discussion about the substance of the agenda, such as the topics that the Governor in Council should, could or will discuss? If the answer to any of those questions were “yes,” I would have found that Document #1 falls under subsection 39(2) and there is no exceedance of statutory power. But I cannot tell.
[45] In short, the description of Document #1 does not lead me to conclude that it falls under subsection 39(2).
[46] As well, I am not satisfied that a document in November 2016 discussing only timing and nothing else—which is what the first part of the description of Document #1 suggests—falls within subsection 39(2). Going back to cases like Babcock and Carey v. Ontario, [1986] 2 S.C.R. 637, 35 D.L.R. (4th) 161, I am not persuaded on the evidence or the brief submissions presented by the Attorney General on this point that a document that merely asks, “Should we do this on November 22 or November 29?” without any argumentation, debate or reasons is a Cabinet confidence falling under the specific paragraphs of subsection 39(2).
[47] Although the description of Document #1 does not persuade me that it falls under subsection 39(2), I would not grant the Tsleil-Waututh Nation any relief. If Document #1 concerns only timing and nothing more, it is irrelevant and, thus, not admissible in the consolidated applications. Nothing in these consolidated applications turns on discussions of the timing of Cabinet’s consideration of the matter. The only thing that matters is the legality of the Order in Council, which we all know is dated November 29, 2016.
[48] The Tsleil-Waututh Nation makes a wider argument against the certificate. It suggests that the certificate is defective because it “adversely impacts [the Tsleil-Waututh Nation’s] ability to review the decision(s) being challenge[d].” In particular, the failure to identify the documents in question with specificity—and here I believe the Tsleil-Waututh Nation has the attachments to Document #2 front of mind—undercuts its ability to know whether certain matters raised by it as late as November 28, 2016, were considered by the Governor in Council when it approved the Project.
[49] I reject this submission. The Supreme Court in Babcock, above, makes it clear that the impact that a section 39 certificate might have on litigation is not a relevant factor for assessing the validity or sufficiency of a certificate.
[50] Putting this aside for a moment, the Tsleil-Waututh Nation’s concern about immunization is a significant one and in no way do I minimize it. I wish to discuss this for a moment, as it will be relevant later in my reasons to the Tsleil-Waututh Nation’s request for a production order against Canada and it may benefit the parties as they prepare for the hearing of the consolidated applications.
[51] As will be discussed below, under our law the exercise of public powers is not to be immunized from meaningful review. But I do not share the Tsleil-Waututh Nation’s concern that this certificate necessarily has the effect of immunizing from review what the Governor in Council has done.
[52] In a sense, this sort of effect caused by a certificate is nothing new. Administrative tribunals can rely on deliberative secrecy and, thus, can withhold key information from an applicant for judicial review: see Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952 at page 965. Legal professional privilege can also apply even on key issues in the judicial review: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809. In these cases, the reviews of the administrative decision-makers still went ahead. The withholding of just some materials from the reviewing court does not, by itself, necessarily mean that the administrative decision-maker is being immunized from review.
[53] And while the impact of a section 39 certificate on litigation is not a relevant consideration in assessing the validity of the certificate, the issuance of a section 39 certificate may indeed impact the litigation to a challenger’s benefit. The issuance of a certificate is no small thing. In Gitxaala Nation (2016), this Court registered its concern about the issuance of a certificate as follows (at para. 319):
The balance of the record that could shed light on this, i.e., the staff recommendations flowing from the Phase IV consultation process, the ministerial recommendation to the Governor in Council and the information before the Governor in Council when it made his decision, are all the subject of Canada’s claim to Cabinet confidence under section 39 of the Canada Evidence Act and thus do not form part of the record. Canada was not willing to provide even a general summary of the sorts of recommendations and information provided to the Governor in Council.
[54] Can this sort of concern lead to an adverse finding? Arguably yes. In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, a majority of the Supreme Court found that a tobacco advertising ban was contrary to the Charter and was of no force or effect. In finding that the ban was not justified under section 1 of the Charter, McLachlin J. (as she then was), writing in separate reasons for three Justices, appeared to take into account the issuance of the certificate (at paras. 165-166):
These considerations suggest that the advertising ban imposed by s. 4 of the Act may be more intrusive of freedom of expression than is necessary to accomplish its goals. Indeed, Health and Welfare proposed less-intrusive regulation instead of a complete prohibition on advertising. Why then, did the government adopt such a broad ban? The record provides no answer to this question. The government presented no evidence in defence of the total ban, no evidence comparing its effects to less invasive bans.
This omission is all the more glaring in view of the fact that the government carried out at least one study of alternatives to a total ban on advertising before enacting the total ban. The government has deprived the courts of the results of that study. The Attorney General of Canada refused to disclose this document and approximately 500 others demanded at the trial by invoking s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, thereby circumventing an application by the tobacco companies for disclosure since the courts lack authority to review the documents for which privilege is claimed under s. 39. References to the study were blanked out of such documents as were produced: Reasons at Trial, at p. 516. In the face of this behaviour, one is hard-pressed not to infer that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result.
[55] In its submissions, the Attorney General suggests that the section 39 certificate does not have the drastic effect the Tsleil-Waututh Nation suggests. Ultimately, this will be for the hearing panel of the Court to assess, but there are certain matters raised by the Attorney General or consequent to what she has raised that are worth mentioning.
[56] First, in this case there is an evidentiary record, partly described below. It is growing. It seems to be at least equivalent to the one placed before this Court in Gitxaala Nation (2016). And in that case this Court did not find that the issuance of a certificate improperly immunized the Governor in Council’s approval of the Northern Gateway Project from review. In fact, in Gitxaala Nation (2016), this Court was able to meaningfully review the Order in Council. It quashed it on account of inadequate consultation with Indigenous groups.
[57] Second, the Attorney General submits that the issue whether the Crown met its duty to consult Indigenous applicants “is determined on the basis of the evidence filed by the parties in relation to what actually took place during the consultation process” rather than by what the Governor in Council may have considered. This is seen from a Federal Court case where a section 39 certificate had been filed and the issue before the Court was whether the duty to consult had been fulfilled:
The record does not reveal a lack of transparency; on the contrary, it shows that the Crown repeatedly shared information, replied to the [First Nation’s] correspondence, met the [First Nation’s] representatives, and made policy decisions in light of the [First Nation’s] concerns. The applicant was not entitled to disclosure of the Minister’s advice to Cabinet: as they acknowledge, the Minister properly asserted privilege (Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39(2)). Furthermore, the duty to consult is determined by the actions that Canada took during the consultation process, not by what the Governor in Council may have considered.
(Adam v. Canada, 2014 FC 1185 at para. 79.)
[58] As well, in the same vein, this Court stated in Gitxaala Nation (2016) that the duty to consult arises in cases like this in two ways. Before the Governor in Council, it can be a basis for finding unreasonableness on the basis of the evidence before it. But, notwithstanding whatever was before the Governor in Council, if the duty to consult owed by the Crown has not been fulfilled, the approval cannot stand: Gitxaala Nation (2016) at para. 159; semble, Adam, above.
[59] No doubt the parties will make submissions on these and related matters at the hearing of these consolidated applications.
[60] This suffices to determine the portion of the Tsleil-Waututh Nation’s motion dealing with section 39 of the Canada Evidence Act. I turn now to a consideration of the Rule 317 issue the Tsleil-Waututh Nation has raised in its motion and its request for an order requiring Canada to produce more material.
[61] To set the stage for this, it is necessary to offer some background legal discussion regarding the record before reviewing courts.
[62] First, I shall examine the role of the evidentiary record before the reviewing court in judicial reviews and the principles that govern the court’s interpretation of relevant statutory provisions and procedural rules. I shall also review the basic principles of admissibility in judicial review proceedings.
[63] Then I shall descend into more practical and mechanical considerations concerning issues relating to the record before the reviewing court: how applicants can obtain evidence relevant to an application for judicial review and how all of the evidence is to be placed before the reviewing court. These two concepts, along with issues relating to the admissibility of evidence, are frequently confused. They must be kept separate.
[64] I do not apologize for starting at such a level of generality. As we journey through areas like this, we can get lost in a dense forest of case law, with multiple issues flying about and various procedural rules seeming like predators poised to strike. But if we step back and view things from above, we can see the whole forest and find our way.
[65] Here, the whole forest is an appreciation of the important role played by the record in judicial reviews, certain fundamental principles concerning judicial reviews, legislative provisions that bear on the problem, and how courts go about their task of review. With that appreciation in mind, we can better understand different things in the forest and their relationship to each other.
[66] Only by doing this can Rule 317—a rule about obtaining evidence from the administrative decision-maker—be placed in its proper context and understood. Only then can the Tsleil-Waututh Nation’s complaint about non-compliance of Rule 317 be considered. And only then can its broader request for an order requiring Canada to produce further material be addressed.
(5) The evidentiary record before reviewing courts: some background (a) The role of the evidentiary record before reviewing courts and relevant principles governing it [67] Subject to constitutional considerations, we must follow the statutory provisions and rules that govern and define the content of the evidentiary record before the reviewing court. Properly interpreted in accordance with their text, context and purpose, they sometimes give reviewing courts some ambit for discretion. Thus, we must have front of mind the role that the evidentiary record plays in reviewing courts. It lies at the heart of meaningful judicial review. Its importance cannot be understated.
[68] First is the role the evidentiary record plays in the reviewing court’s discernment of the reasons of the administrative decision-maker. Where the reasons of the administrative decision-maker are sparse or even non-existent on a key point, they can sometimes be deduced from comparing the result reached with the evidentiary record: see, e.g., Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572.
[69] Even where the reasons are more fulsome, the record the administrative decision-maker had in front of them can play a key role in construing and interpreting its reasons. See generally Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrado