Ka'A'Gee Tu First Nation v. Canada (Attorney General)

Ka'A'Gee Tu First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-03-08
Neutral citation
2012 FC 297
File numbers
T-1485-09
Decision Content
Date: 20120308
Docket: T-1485-09
Citation: 2012 FC 297
Ottawa, Ontario, March 8, 2012
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
CHIEF LLOYD CHICOT SUING ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF THE KA'A'GEE TU FIRST NATION AND THE KA'A'GEE TU FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND PARAMOUNT RESOURCES LTD.
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application for judicial review is a sequel to a decision issued on July 20, 2007 by my colleague, Justice Edmond Blanchard, in which he found that the Crown in right of Canada (“Canada” or “the Crown”) had breached its duty to consult with the Ka’a’Gee Tu First Nation (“KTFN”) before deciding to approve a project involving oil and gas development in the Northwest Territories of the Respondent Paramount Resources Ltd. (“Paramount”). As a result, Justice Blanchard ordered the parties to engage in a process of meaningful consultation with the view of taking into account the concerns of the KTFN and if necessary, to accommodate those concerns.
[2] KTFN is now coming back to the Court, alleging that Canada has failed to act in accordance with the findings and direction of Justice Blanchard and has failed to engage in good faith consultations with them to address the impacts of the Extension Project. The resolution of this application, therefore, relies in part on a proper understanding of that prior decision as well as on the assessment of the conduct of the parties during the consultation process that followed that decision.
1. Facts
The Background to the First Decision and the Regulatory Approval Process
[3] There is no need to repeat the facts leading to the decision of Justice Blanchard. They are aptly summarized in his decision, Ka’a’Gee Tu First Nation v Canada (Attorney General), 2007 FC 763 at paras 2-88, 315 FTR 178 [Chicot #1]. I shall therefore only recapitulate the most salient part of that background, to the extent that it is necessary, for a better understanding of the issues arising in the present case.
[4] The KTFN is one of the twelve communities who identify themselves as members of the Deh Cho First Nations (the “Deh Cho”) who descend from the South Slavey people of the Dene Nation. On November 1, 1990, a sub-band of the Fort Providence Band residing at Kakisa Lake formed a band that is known, since 1996, as the KTFN. Their traditional territory is located in the southwest region of the Northwest Territories and includes Tathlina Lake and surrounding lands, including the Cameron Hills, a low lying mountain that rises to the south of Tathlina Lake and which forms part of the Tathlina Lake watershed (the “Cameron Hills Area”). The Band consists of approximately 55 people living at the Kakisa settlement; there are approximately 62 people on the KTFN Band list.
[5] Paramount is a Calgary-based company that has acquired a significant discovery licence in the Cameron Hills Area and by the year 2000, had begun intensive development of oil and gas resources. The development proceeded in phases and included drilling well sites to prove the resources, the construction of a pipeline and gathering system that was completed in 2002, and the development of large scale oil and gas production through the proposed drilling of up to fifty new well sites. This last phase, known as the “Extension Project”, forms the focus of this proceeding and the consultation process at issue.
[6] As noted by Justice Blanchard and reasserted before this Court, the KTFN claim a deep spiritual and cultural connection, as well as an economic reliance, on the Cameron Hills. There is no dispute amongst the parties in this application, that the lands subject to Paramount’s proposed development are also the lands over which the Applicants claim treaty rights and assert Aboriginal rights. The KTFN are a signatory to Treaty 11, signed June 27, 1921 which provides for the continuing protection of the KTFN’s right to pursue the “usual vocations of hunting, trapping and fishing”. Treaty 11 contains surrender and cession of land provisions, and further provides for the setting aside of reserve lands for the Deh Cho. However, no such lands were set aside, and the Deh Cho and Canada disagree as to the intent and legal effect of Treaty 11. Whereas Canada takes the position that Treaty 11 extinguished Aboriginal title to the asserted Deh Cho territory and that the only remaining issue to be resolved is with respect to the setting aside of reserve lands, the Deh Cho understand the Treaty as a peace and friendship treaty, whereby Aboriginal title was not surrendered.
[7] Canada and Deh Cho (including the KTFN), along with the Government of the Northwest Territories, have agreed in 1998 to seek respectful resolution of the unresolved land question through a modern comprehensive claim negotiation process known as the “Deh Cho Process”. Although negotiations are ongoing, various agreements have been reached along the way, including the Interim Measures Agreement (“IMA”), which contemplates, among other things, collaborative land use planning, and the Interim Resource Development Agreement (“IRDA”), which establishes terms upon which Deh Cho and Canada will address, inter alia, future issuances of mineral rights in Deh Cho territory.
[8] Oil and gas development in the Mackenzie Valley is complex and involves several statutes and regulations engaging several administrative bodies. Construction and operation of a pipeline and gathering system occurs under the authority of the National Energy Board, pursuant to the Canada Oil and Gas Operations Act, RSC 1985, c O-7, and the Canada Petroleum Resources Act, RSC 1985, c 36 (2nd Supp.). Moreover, the Mackenzie Valley Resource Management Act, SC1998, c 25 [MVRMA] was enacted to establish a legislative scheme for an integrated system of management of land and water on public and private lands in the Northwest Territories. The MVRMA establishes the Land and Water Board and the Environmental Impact Review Board (the “Review Board”) whose purpose is “to enable residents of the Mackenzie Valley to participate in the management of its resources for the benefit of the residents and of other Canadians” (preamble and s. 9.1). Input from the community and consultation is the cornerstone of this legislation and guides the processes carried out by the boards created under the MVRMA.
[9] A proponent of a development must apply to the Land and Water Board for a land use permit and water licence where the proposed activity is to be carried out in the unsettled claim areas within the Mackenzie Valley (MVRMA, s. 60). Section 60.1 of the MVRMA specifically requires that the Land and Water Board give consideration to “the well-being and way of life of the aboriginal peoples of Canada” in making its decisions. Pursuant to subsection 63(2) of the MVRMA, the Land and Water Board is required to notify affected communities and First Nations upon receipt of an application for a permit or licence.
[10] Part V of the MVRMA provides the legislative framework for the review process and environmental assessment process mandated by the MVRMA. One of the purposes of this part of the MVRMA is to “ensure that the concerns of aboriginal people and the general public are taken into account”, with the process providing due consideration to the protection of the environment, the protection of the social, cultural, and economic well-being of residents and communities in the Mackenzie Valley and the “importance of conservation to the well-being and way of life of the aboriginal peoples…who use an area of the Mackenzie Valley” (ss. 114-115).
[11] Community consultation is integral to the processes undertaken by both the Land and Water Board and the Review Board. Section 3 of the MVRMA governs how this consultation is to be carried out:
Consultation
3. Wherever in this Act reference is made, in relation to any matter, to a power or duty to consult, that power or duty shall be exercised
(a) by providing, to the party to be consulted,
(i) notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter,
(ii) a reasonable period for the party to prepare those views, and
(iii) an opportunity to present those views to the party having the power or duty to consult; and
(b) by considering, fully and impartially, any views so presented.
Consultation
3. Toute consultation effectuée sous le régime de la présente loi comprend l’envoi, à la partie à consulter, d’un avis suffisamment détaillé pour lui permettre de préparer ses arguments, l’octroi d’un délai suffisant pour ce faire et la possibilité de présenter à qui de droit ses vues sur la question; elle comprend enfin une étude approfondie et impartiale de ces vues.
[12] Moreover, both the Land and Water Board and the Review Board provide guidelines on how consultation is to be undertaken by developers when applications are made to the respective boards: see Mackenzie Valley Environmental Impact Review Board Environmental Impact Assessment Guidelines (March 2004) and Public Involvement Guidelines for Permit and License Applicants to the Mackenzie Valley Land and Water Board (October 2003).
[13] The MVRMA provides for a three stage review process: a preliminary screening, an environmental assessment and an environmental impact review. Developers must consider the mitigation of environmental impacts and consult with affected First Nations according to the Guidelines before submitting an application. Once the Land and Water Board is satisfied pre-application community consultation has taken place, it conducts a Preliminary Screening of the proposed development (s. 124 of the MVRMA). During the Preliminary Screening, information provided by the applicant, including consultation information, is used to determine whether the proposed development might have a significant effect on the environment or be cause for public concern, thus necessitating consideration by the Review Board through a more detailed assessment process than the Environmental Assessment. If development might have a significant adverse impact, then the Land and Water Board will refer the proposal to the Review Board for an environmental assessment under section 125 of the MVRMA. Otherwise, the application will proceed to the permitting phase.
[14] Once an environmental assessment has been triggered by a referral from the Land and Water Board, the Review Board reviews the Preliminary Screening and conducts an Environmental Assessment which involves an in-depth study of the proposed development for potential impacts on the environment. This process involves a number of steps, which are well described in section 3 of the Environmental Impact Assessment Guidelines.
[15] The Review Board will first determine the scope of the Environmental Assessment by identifying the Terms of Reference. Once they have been finalized, the developer proceeds to prepare what is known as the Developer’s Assessment Report, which fully describes the development, the environmental impacts (including the social, cultural and economic effects), the mitigation measures and summarizes the issues that arose from community consultations.
[16] After the Developer’s Assessment Report is submitted to the Review Board, it is circulated to all parties, to the interveners, and to members of the public. A conformity check is done by the Review Board to ensure that the Developer’s Assessment Report responds to the Terms of Reference.
[17] Once the Developer’s Assessment Report is found to be in conformity with the Terms of Reference, it undergoes a detailed Technical Review. The participants are given opportunities to submit their views and present their evidence and facts to the Review Board. Questions arising from the Technical Review which require formal responses are issued by information requests, originating from various reviewers and interveners.
[18] The Review Board then determines whether a hearing is required on a case by case basis. Following any hearing, the Review Board decides whether to approve or reject the application, with or without mitigation measures, or submit the matter for an even more detailed Environmental Impact Review if the development is likely “to have any significant adverse impact on the environment or to be a cause of significant public concern” (MVRMA, s. 128).
[19] The Review Board’s findings in this regard are disseminated to the developer, the National Energy Board (in some cases), the Minister of Indian and Northern Affairs Canada, (“INAC”) (as the Department of Aboriginal Affairs and Northern Development Canada was then known), the preliminary screener and the referral body. The Minister of INAC must then distribute it to every responsible minister (MVRMA, ss. 128(3), (4)).
[20] Upon consideration, the Ministers may (i) agree with the Environmental Assessment Report in its entirety; (ii) if a recommendation is made with mitigation measures, adopt the recommendation with the suggested mitigation measures; (iii) refer the Environmental Assessment back to the Review Board for further consideration; (iv) consult with the Review Board and adopt the recommendation with modifications made to the suggested mitigation measures; or (v) reject the recommendation and order an Environmental Impact Review (MVRMA, ss. 130(1)). This final process has become known as the “Consult to Modify” process and was at the heart of the initial judicial review.
[21] As previously mentioned, the development pursued by Paramount proceeded in three phases: the Drilling Project, the Gathering System and Pipeline Project, and the Extension Project. Paramount sought and received various permits and licences in relation to the Drilling Project in 2000 and 2001 after the Review Board conducted and issued an Environmental Assessment. The Review Board recommended that land use permits and water licences be issued on condition that the mitigating measures contained in Paramount’s environmental report be respected. The Drilling Project was eventually allowed to proceed on this basis.
[22] In conjunction with the next phase of the Paramount development, the Gathering System and Pipeline Project, Paramount applied for land use permits and water licences pursuant to the MVRMA in April of 2001. An Environmental Assessment was conducted. The KTFN participated in the entire Preliminary Screening and Environmental Assessment processes and provided Technical Reports and Information Requests. After the completion of the Environmental Assessment, the Ministers approved the development and the Land and Water Board accordingly issued the permit and licence. Justice Blanchard noted, however, that the Applicants protested the Ministers’ decision to substantially modify recommendations 13, 15 and 16 and the deletion of recommendation 17 of the Review Board, and perceived that decision to be detrimental to their interests.
[23] In April of 2003, Paramount applied to the Land and Water Board to amend its various land use permits and water licences issued with respect to its initial project. This aspect of the development, which became known as the Extension Project, signalled the beginning of Paramount’s production work in the Cameron Hills. To quote from the decision of Justice Blanchard at para 56:
The project initially involved approval for 5 additional wells but would eventually also include the drilling, testing and tie-in of up to 50 additional wells over a period of 10 years; the production of oil and gas for over 15-20 years; the excavation of 733 km of seismic lines; the construction of temporary camps servicing up to 200 workers; the withdrawal of water from lakes; and the disposal of drill waste.
[24] After the Preliminary Screening, which included consultation with interested groups, the Land and Water Board referred the matter to the Review Board for an Environmental Assessment. Eight interested Aboriginal groups, including the KTFN, participated in the Environmental Assessment process, which followed the steps outlined earlier in these reasons.
[25] In its Report, the Review Board found that the evidence provided a “firm foundation” for the concerns expressed about the Cameron Hills, “particularly in relation to the possible effects of the proposed development on the traditional activities important to the KTFN…” (p. 14). Notwithstanding these observations, the Review Board concluded that with the implementation of the measures recommended in its Report and the commitments made by Paramount, “…the proposed development will not likely have a significant environmental impact or be cause for significant public concern and should proceed to the regulatory phase of approvals”.
[26] Out of the 17 measures recommended in the Review Board’s Environmental Assessment Report, the National Energy Board determined that 6 fell within its jurisdiction and undertook a parallel “consult to modify” process pursuant to the MVRMA. That process, and the National Energy Board’s final recommendations, were not challenged by the KTFN.
[27] On November 17, 2004, the Minister of INAC, on behalf of the responsible ministers, initiated consultation with the Review Board pursuant to subparagraph 130(1)(b)(ii) of the MVRMA by sending it a letter proposing modifications to recommendations 7, 11, 12, 13, 15 and 16 with supporting rationale.
[28] On December 17, 2004, the KTFN provided a comprehensive response to the Minister of INAC, further to the Review Board’s request for input with respect to the proposed modifications. The KTFN asserted that the consult to modify process breached the Crown’s duty to consult. The KTFN took special issue with the modifications made by the Ministers to proposed mitigation measures 15 and 16. These measures initially read as follow, in the Review Board Report dated June 1, 2004:
R-15 The Review Board recommends that Paramount and the other parties to the unfinished Cameron Hills Wildlife and Resources harvesting Compensation Plan developed in response to measures 13 and 15 of EA01-005 [the Pipeline Project Report] complete the compensation plan. If a compensation plan cannot be completed by these parties within 90 days of the federal Minister’s acceptance of this report, this matter will proceed to binding arbitration, pursuant to the NWT Arbitration Act. A letter signed by the parties indicating agreement to the compensation plan or in the case of arbitration, the arbitrator’s decision must be filed with NEB and MVLWB prior to the commencement of Paramount’s operations under land use permit MV2002A0046.
R-16 The Review Board recommends that the GNWT develop a socio-economic agreement with Paramount in consultation with affected communities before operations proceed under the land use permit MV2002A0046. The socio-economic agreement is to address issues such as employment targets, educational and training opportunities for local residents and a detailed ongoing community consultation plan.
[29] From December 2004 to July 2005, the Review Board and the Ministers participated in the consult to modify process, from which the Applicants were excluded. On July 5, 2005, the Minister decided to give final approval to the Extension Project on the basis of mitigation measures that had been substantially altered and revised through the consult to modify process. Six of the 17 mitigation measures were modified by the Ministers. In particular, measure R-15 was modified such that Paramount was required to commit in writing to compensate affected parties for direct wildlife harvesting and resource harvesting losses, and to consider indirect losses on a case-by-case basis, instead of being required to establish a compensation plan to be enforced through binding arbitration. As for measure R-16, it was modified such that Paramount was not required to enter into a socio-economic agreement with the affected communities, as the Review Board had recommended, but rather was to report annually on its performance in the provision of socio-economic benefits to affected communities. These modified measures read as follows:
R-15 The Review Board recommends that Paramount commit, in a letter to the Parties to the Environmental Assessment, to compensate the Ka’a’Gee Tu First Nation and other affected Aboriginal groups for any direct wildlife harvesting and resource harvesting losses suffered as a result of project activities, and to consider indirect losses on a case-by-case basis.
R-16 The Review Board recommends that Paramount report annually to the Government of the Northwest Territories and the other parties to the Environmental Assessment, documenting its performance in the provision of socio-economic benefits, such as employment and training opportunities for local residents, including a detailed ongoing community consultation plan describing the steps it has taken and will take to improve its performance in those areas. The Government of the Northwest Territories will review this report with Paramount in collaboration with the other Parties to the Environmental Assessment.
The First Decision
[30] On July 5, 2005, the KTFN sought judicial review of the Ministers’ decision to modify the mitigation measures recommended by the Review Board, alleging that Canada had breached its constitutional and legal duty to consult with and accommodate the KTFN prior to approving the Extension Project. The parties in Chicot #1 agreed the Crown owed a duty to consult the KTFN but there was no agreement regarding the scope and content of that duty.
[31] Relying on the principles articulated by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 [Haida], Justice Blanchard found that the question of whether the regulatory process at issue and its implementation discharge the Crown’s duty to consult and accommodate in the circumstances, had to be examined on the standard of reasonableness. On the other hand, questions concerning the existence and content of the duty were to be reviewed on the standard of correctness (see paras. 92-93).
[32] The Court then proceeded to evaluate KTFN’s treaty rights and asserted Aboriginal rights and title claims, and ruled upon the scope and content of consultation required to discharge the Crown’s consultation duty in respect of the Extension Project’s approval. Mindful of the overarching principle that the duty to consult and accommodate will vary with the strength of the claim and the impact of the contemplated government conduct on the rights at issue, Justice Blanchard made a number of key findings.
[33] The existence of the Applicants’ broad harvesting rights to hunt, trap and fish under Treaty 11 is not in dispute. With respect to the strength of KTFN’s asserted Aboriginal title claim, however, Justice Blanchard found:
(a) The KTFN claim stewardship over the Cameron Hills. However, there is no consensus among the Aboriginal groups regarding the KTFN’s stewardship, as several Aboriginal groups claim the Cameron Hills as part of their group’s traditional territory (para. 7);
(b) The KTFN are part of the Deh Cho Process, which seeks to negotiate final agreements in respect of Aboriginal and Crown titles. The Crown’s participation in the Deh Cho Process informs the Court’s assessment of the strength of the KTFN’s asserted claim (paras. 16, 103-104); and
(c) The argument that the KTFN’s asserted claim for Aboriginal title is meritorious, is supported by the Crown’s failure to set aside reserve lands for the KTFN’s exclusive use, as required under Treaty 11, and by the acceptance of Cameron Hills lands into the comprehensive land claims process. These factors must be balanced against Treaty language which clearly supports an agreement to relinquish Aboriginal title (paras 105-107).
[34] As a result of these facts, Justice Blanchard was satisfied that the KTFN’s claim raises a reasonably arguable case regarding asserted Aboriginal title over the Cameron Hills. He stated:
107. It is not for the Court, in the conduct of a judicial review application, to decide the Applicants’ asserted claim. Such questions are best left to be dealt with in the context of a trial where the ethnographic, historical, and traditional evidence is comprehensively reviewed and considered. In the circumstances of this case, while it is difficult to quantify the strength of the Applicants’ asserted claim, I am nevertheless satisfied that the claim raises a reasonably arguable case. This determination is based on a review of the record before me, the nature of the asserted claim, the language of Treaty 11, the Crown’s breach of its Treaty obligation and the Crown’s commitment to the comprehensive land claims process. In the circumstances, these factors serve to elevate the content of the Crown’s duty to consult from what would otherwise have been the case had the content of the duty been based exclusively on the interpretation of the Treaty rights in play.
Chicot #1, above at para 107.
[35] With respect to the Extension Project’s potential impact upon the KTFN’s treaty rights and asserted Aboriginal title, Chicot #1 found that the Extension Project will have a significant and lasting impact on the lands over which the KTFN asserts Aboriginal title and a significant impact on treaty harvesting rights to hunt, trap and fish (paras 14, 101-102, 112).
[36] The Attorney General of Canada, citing Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388 [Mikisew Cree] argued that the Crown’s duty lay at the lower end of the spectrum alluded to by Chief Justice McLachlin in Haida. Justice Blanchard disagreed, however, and found that the depth of consultation necessary to discharge the Crown’s duty, to be greater than that found to be the case in Mikisew Cree. In his view, the contextual factors in this case militate in favour of a formal participation in the decision-making process.
[37] Justice Blanchard found that, up to the consult to modify stage, the Extension Project approval process was satisfactory and that the Applicants benefited from formal participation in the decision-making process (paras 118-119). The same could not be said of the consult to modify process, in his view, because the new proposals which resulted from that process were never submitted to the Applicants for any meaningful consultation (para 120). Justice Blanchard summed up his findings with respect to the duty to consult in the following paragraph:
I find the Crown failed to discharge its duty to consult in the circumstances of this case. In sum, the consult to modify process allowed for fundamental changes to be made to important recommendations which were the result of an earlier consultative process involving the Applicants and other stakeholders. These changes were made without input from the Applicants. It cannot be said, therefore, that the consult to modify process was conducted with the genuine intention of allowing the KTFN’s concerns to be integrated into the final decision. At this stage the Applicants were essentially shut out of the process.
Chicot #1, above at para 124.
[38] In the overall conclusion of his analysis, Justice Blanchard wrote:
The Crown in right of Canada has failed to discharge its duty to consult and, if necessary, accommodate before making a final decision on the approval of the Extension Project. The Crown in right of Canada has a duty to consult with the KTFN in respect to modifications it proposes to bring to the recommendations of the Review Board pursuant to the Environmental Assessment Process concerning the Extension Project. Good faith consultation in the consult to modify stage of the process is required and while there is no duty to reach an agreement, such consultation may well lead to an obligation to accommodate the concerns of the KTFN. The extent and nature of accommodation, if any, can only be ascertained after meaningful consultation at this final stage of the process.
Chicot #1, above at para 131.
[39] The Applicants had sought an order declaring that the decision was invalid and unlawful, quashing and setting aside the decision, as well as an order restraining the Ministers and Paramount from taking any further steps in relation to the approval of the Extension Project pending further order of the Court. Justice Blanchard, however, did not go that far and was satisfied that the proper relief, in the circumstances, was a declaration that Canada had breached its duty to consult and accommodate, which was one of the other remedies sought by the Applicants. As a consequence, he ordered the following:
In accordance with the above reasons, the parties are to engage in a process of meaningful consultation with the view of taking into account the concerns of the KTFN and if necessary accommodate those concerns. The process is to be conducted with the aim of reconciliation in a manner that is consistent with the honour of the Crown and the principles articulated by the Supreme Court of Canada in Haida and Taku.
[40] As a result of the Court’s decision not to quash the Crown’s decision, it appears that any further integration of the KTFN’s concerns and interests had to be developed outside of the Crown’s decision to approve the Extension Project with the modified mitigation measures. No appeal was taken from that decision.
The Court Ordered Consultation Process
[41] The KTFN, Canada and Paramount engaged in a consultation process pursuant to Justice Blanchard’s Order. That process began in August of 2007 and concluded in June of 2009, with the issuance by Canada of written reasons for concluding consultation dated August 7, 2009. The consultation is well documented, as all parties agreed that it was to be on the record.
[42] The consultation process was extensive. It lasted for almost two years, during which period 16 formal consultation meetings were held, either in person or by teleconference, with formal agendas and the recording of approved minutes. Extensive correspondence was also exchanged. No further water or land use permits or licences were issued to Paramount resulting from the Environmental Assessment made by the Review Board during that period.
[43] At the initial consultation meeting held on August 30, 2007 in Yellowknife, Northwest Territories, the KTFN identified three preliminary matters requiring resolution before substantive discussions could begin: a) a satisfactory consultation framework protocol; b) funding to participate in the consultation process; and c) a proper traditional land use study.
[44] Prior to the first meeting, Canada prepared a consultation framework protocol to guide the process. The KTFN were not satisfied with Canada’s document and proposed a revised consultation protocol. From these revisions, it became clear that Canada and the KTFN had a very different understanding as to the scope of Chicot #1. Negotiations aimed at developing a consultation protocol dominated the process for the next three months, and was the subject of three meetings and one teleconference. On November 27, 2007, Canada and the KTFN agreed to a Consultation Framework Protocol, and at the fifth consultation meeting on November 29, 2007, the Protocol was confirmed. However, Paramount objected to that Protocol because, in its view, it did not reflect the direction of Chicot #1.
[45] The KTFN requested funding to allow them to adequately prepare and participate in the consultation process. Canada agreed and provided the KTFN with $88,394.00 for travel and expenses for two representatives of the KTFN and their legal counsel. Canada also agreed to pay for the KTFN’s legal fees during the entire consultation process.
[46] As for traditional knowledge and land use, Canada was asked to fund such a study because the KTFN viewed the assembling, sharing and assessing traditional knowledge as an essential first step to understanding their concerns. At first, Canada was reluctant due to the fact that information on traditional practices was already available from other sources. Nevertheless, Canada finally accepted the KTFN’s viewpoint that the traditional knowledge study was a key component of the Court ordered consultations and agreed to provide funding. While the proposal for this study was broader than Canada considered necessary, the KTFN consultant insisted that a holistic approach was required. Accordingly, Canada funded the traditional knowledge study as proposed for $70,840.00.
[47] As previously mentioned, Canada and the KTFN had different views on the correct scope of the consultations in the course of negotiating the Consultation Protocol Framework. At the initial meeting, the KTFN informed Canada that the process should not focus on the modified mitigation measures but on appropriate outcomes. The KTFN asserted a strong arguable case for Aboriginal title that required economic accommodation. The KTFN maintained that economic accommodation was required and that consultation was to address infringement of the KTFN’s rights. In other words, the KTFN was of the view that the subject matter of the consultations was the Ministers’ final decision to approve the Extension Project. Accordingly, the proper question for consultation for the KTFN was not the impacts of the modified mitigation measures, but rather what measures are required to be included in the final decision approving the Extension Project to address and accommodate for impacts on the KTFN’s asserted Aboriginal rights, including Aboriginal title.
[48] On the other hand, it was Canada’s understanding that Chicot #1 ordered the parties to consult regarding potential adverse impacts on treaty rights and potential Aboriginal rights arising from the consult to modify process. Canada distinguished between the impacts to the KTFN from the modifications to the Review Board’s mitigation measures, which it was prepared to address through the Court ordered consultation, and impacts to the KTFN’s asserted Aboriginal title from the Extension Project. Issues concerning Aboriginal title were, in Canada’s view, outside the consultation process and better addressed elsewhere, essentially through the Deh Cho Process.
[49] The KTFN and Canada eventually reached an agreement whereby the broader issues relating to impacts of the Extension Project as a whole on the KTFN’s asserted Aboriginal rights, including title, would be addressed. The purpose of the Protocol is set out in the following terms:
The purpose of this Protocol is to establish a process for implementing the Court’s Order that Canada and the Ka’a’Gee Tu engage in meaningful consultation to take into account the Ka’a’Gee Tu’s concerns, and if appropriate, accommodate those concerns, regarding adverse impacts, including potential infringements, of the Extension Project on the Ka’a’Gee Tu’s established treaty rights and asserted aboriginal rights, including aboriginal title.
[50] As per the Consultation Framework Protocol, the KTFN agreed to provide a written statement of their concerns regarding the modified mitigation measures. The KTFN also agreed to identify their concerns about the adverse impacts of the Extension Project, including potential right infringements, on the KTFN’s potential and established treaty rights and Aboriginal rights, including Aboriginal title. It was agreed that the Government of the Northwest Territories and Paramount would be able to participate in the discussion.
[51] It will be one of the Applicants’ arguments that Canada was guilty of misrepresentation in agreeing to address issues relating to the impacts of the Extension Project as a whole on KTFN’s asserted Aboriginal rights, because it never had any intention to consult about those broader issues. More will be said about this claim later on in these reasons.
[52] Once the consultation protocol was agreed to, the parties entered the information sharing stage of the consultation process. The KTFN provided an initial written statement of concerns about the modified mitigation measures on November 27, 2007. This statement essentially referred to the KTFN’s letters dated June 24 and December 17, 2004 to the Review Board and summarized the shortcomings of the modified mitigation measures identified in more detail in these two letters. The KTFN made it clear that it was providing this input as a gesture of good faith to Canada, and that further stages of consultation to identify, assess and accommodate impacts of the Extension Project to the KTFN’s treaty rights and Aboriginal title would be required. The KTFN advised that the modified mitigation measures were fundamentally deficient, as they arose from a decision-making process that denied the KTFN input and resulted in measures that lack any intention or means to accommodate for the inescapable economic component of the KTFN’s Aboriginal title and treaty rights.
[53] These comments were discussed two days later, on November 29, 2007 at a meeting held at Yellowknife. The minutes of that meeting make it very clear that KTFN was more interested in discussing the infringements of the KTFN’s rights, if only because they were of the view that there is no statutory means for the Ministers to re-open their decision.
[54] In response to the KTFN’s November 27, 2007 presentation, Canada made a request on January 11, 2008 for detailed information concerning, inter alia: (i) the exact area to which the KTFN is referring as the Cameron Hills; (ii) the specific Aboriginal and treaty rights which the KTFN is asserting within this area; (iii) whether the KTFN is claiming exclusive rights to this area; (iv) the KTFN’s views of the claims and asserted rights of other First Nations and Aboriginal groups to this area; and (v) the specific sum the KTFN seek in recognition of the economic component of its asserted title. The KTFN answered these questions by letter dated January 22, 2007 and reminded Canada that many of the issues it sought clarification on had already been addressed in Chicot #1. The KTFN also provided Canada with copies of the August 1996 and December 2007 Dene Nation Resolutions affirming the KTFN’s role as the main traditional land users, caretakers and managers of their traditional area, which includes Cameron Hills.
[55] The KTFN made a request to Canada on January 22, 2008 for further information, including the royalties and revenues to be generated by the Extension Project and the specific steps Canada is taking to ensure the KTFN participation in project related benefits. Canada did not respond until June 6, 2008. It refused to provide any information concerning royalties, as this information cannot be released without the express written permission of Paramount; as for a projection of future revenues, it stated that it would be difficult to calculate with any degree of accuracy, because of the many factors which influence year-to-year production. As for the KTFN’s participation in project related benefits, Canada essentially relied on the Benefits Plan that was submitted by Paramount and approved by the Minister in March 2001, pursuant to the Canada Oil and Gas Operations Act.
[56] On April 24, 2008, the KTFN provided the parties with a further written statement of their interests and concerns regarding the Extension Project. In that statement and at that meeting, the KTFN summarized information regarding their use and occupation of the Cameron Hills area, and reiterated the findings of the Review Board and Chicot #1 with respect to the risks created by Paramount’s Extension Project for their population. It also identified five areas on which it sought consultation and accommodation:
(a) Environmental monitoring and mitigation program (in order to address a lack of ba