Dene Tha' First Nation v. Canada (Minister of Environment)

Dene Tha' First Nation v. Canada (Minister of Environment)
Court (s) Database
Federal Court Decisions
Date
2006-11-10
Neutral citation
2006 FC 1354
File numbers
T-867-05
Decision Content
Date: 20061110
Docket: T-867-05
Citation: 2006 FC 1354
BETWEEN:
DENE THA' FIRST NATION
Applicant
and
MINISTER OF ENVIRONMENT
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
MINISTER OF TRANSPORT,
IMPERIAL OIL RESOURCES VENTURES LIMITED,
on behalf of the Proponents of the Mackenzie Gas Project,
NATIONAL ENERGY BOARD, AND
ROBERT HORNAL, GINA DOLPHUS, BARRY GREENLAND,
PERCY HARDISTY, ROWLAND HARRISON, TYSON PERTSCHY AND
PETER USHER, all in their capacity as panel members of a Joint Review Panel
established pursuant to the Canadian Environmental Assessment Act
to conduct an environmental review of the Mackenzie Gas Project
Respondents
REASONS FOR JUDGMENT
INDEX
Page
I. Introduction................................................................................................................... 4
II. Facts............................................................................................................................. 6
A. Dene Tha’............................................................................................................ 6
(1) Dene Tha’ People and Territory.................................................................. 6
(2) Dene Tha’ – Treaty 8 Rights in Alberta........................................................ 7
(3) Dene Tha’ – Aboriginal Rights in NWT....................................................... 8
B. Mackenzie Gas Pipeline – Regulatory and Environmental Matrices........................ 9
(1) The “Cooperation Plan”.............................................................................. 10
(a) The Genesis...................................................................................... 10
(b) The Mandate.................................................................................... 11
(2) The Agreement for Coordination of the Regulatory Review
of the MGP (“Regulators’ Agreement”)....................................................... 12
(a) The Genesis...................................................................................... 12
(b) The Mandate.................................................................................... 12
(3) The Agreement for an Environmental Impact Review of the
MGP (Joint Review Panel Agreement – JRP Agreement)............................. 12
(a) The Genesis...................................................................................... 12
(b) The Mandate.................................................................................... 13
(4) Environmental Impact Terms of Reference................................................... 13
(a) The Genesis...................................................................................... 13
(b) The Mandate.................................................................................... 14
(5) The Joint Review Panel Proceedings............................................................ 14
(a) The Genesis...................................................................................... 14
(b) The Mandate.................................................................................... 14
(6) The National Energy Board Proceedings..................................................... 16
(a) The Genesis...................................................................................... 16
(b) The Mandate.................................................................................... 16
(7) The Crown Consultation Unit...................................................................... 16
(a) The Genesis...................................................................................... 16
(b) The Mandate.................................................................................... 17
C. Dene Tha’s Involvement in these Processes........................................................... 18
(1) Cooperation Plan........................................................................................ 18
(2) Regulators’ Agreement, JRP Agreement, and Terms of
Reference................................................................................................... 18
(3) NEB Proceedings and JRP Proceedings...................................................... 19
(4) CCU.......................................................................................................... 19
D. Jurisdiction over Consultation................................................................................ 21
E. Comparison of Dene Tha’ to other First Nations................................................... 24
(1) The Inuvialuit, Gwich’in, and Sahtu.............................................................. 25
(2) The Deh Cho.............................................................................................. 26
F. Summary of First Nations Comparison.................................................................. 27
III. Duty to Consult – Timing and Content............................................................................ 29
A. Introduction.......................................................................................................... 29
B. The Trigger for Consultation................................................................................. 31
C. Content of the Duty to Consult and Accommodate................................................ 32
D. Standard of Review.............................................................................................. 34
E. Application of the Law to the Dene Tha’............................................................... 38
(1) When did the Duty Crystallize?.................................................................... 38
(2) What is the Content of the Duty?................................................................. 42
IV. Remedy......................................................................................................................... 44
* * * * * * * *
PHELAN J.
I. INTRODUCTION
[1] A massive industrial project like the Mackenzie Gas Pipeline (MGP), one that anticipates the creation of a corridor of pipeline originating in Inuvik in the far north of the Northwest Territories and terminating 15 metres south of the Northwest Territories and Alberta border, where a proposed connecting pipeline will link it up with existing provincial pipelines for southern distribution (the “Connecting Facilities”), attracts a myriad of government obligations. The issues of environmental review go beyond the physical pipeline from the north to this connection point. Government must deal with the proponents of the project, detractors of the project, regulatory review boards, environmental review boards, and affected First Nations. The alleged failure of the Government of Canada to fulfill its obligations toward this last group, specifically the Dene Tha’ First Nation (Dene Tha’), forms the subject matter of this judicial review.
[2] The Dene Tha’ alleges that the Government of Canada through the Minister of Environment, the Minister of Fisheries and Oceans, the Minister of Indian and Northern Affairs Canada and the Minister of Transport (the Ministers) breached its constitutionally entrenched duty to consult and accommodate the First Nations people adversely affected by its conduct. Specifically, the Dene Tha’ identifies as the moment of this breach as its exclusion from discussions and decisions regarding the design of the regulatory and environmental review processes related to the MGP. The Ministers deny that any duty arose at this point and, in any event or in the alternative, asserts that its behavior with respect to the Dene Tha’ was sufficiently reasonable to discharge its duty to consult and thus withstands judicial scrutiny. The so-called discharge of the duty to consult and accommodate consisted of (1) including the Dene Tha’ in a single media release of June 3, 2004 inviting public consultation on a draft Environment Impact Terms of Reference and Joint Review Panel Agreement and (2) a 24-hour deadline on July 14, 2004 to comment on these documents. That is not sufficient to meet the duty to consult and accommodate.
[3] This Court’s conclusion is that the Ministers breached their duty to consult the Dene Tha’ in its conduct surrounding the creation of the regulatory and environmental review processes related to the MGP from as early as the first steps to deal with the MGP in late 2000 through to early 2002 and continued to breach that duty to the present time. The Dene Tha’ had a constitutional right to be, at the very least, informed of the decisions being made and provided with the opportunity to have its opinions heard and seriously considered by those with decision-making authority. The Dene Tha’ were never given this opportunity, the Ministers having taken the position that no such duty to consult had arisen yet.
[4] Quite remarkably, when the Ministers did decide to “consult” with the Dene Tha’, upon the establishment of the process for the Joint Review Panel, the Dene Tha’ were given 24 hours to respond to a process which had taken many months and years to establish and had involved substantial consultation with everyone potentially affected but for the Dene Tha’. This last gasp effort at “consultation” was a case of too little, too late.
[5] To arrive at this conclusion, this Court has considered the following matters: (1) the factual background relating to the regulatory and environmental processes underlying the MGP; (2) the particular facts relating to the Dene Tha’; (3) the current state of the law relating to aboriginal consultation; and (4) how the law applies to the situation of the Dene Tha’.
[6] At the outset, it should be noted that the issue of remedy in this case is not straightforward. Hence, it will receive special attention in the final section of these Reasons. At the very least, any of the current procedures which may affect the Dene Tha’ must be stayed until other remedial provisions can be completed.
II. FACTS
A. Dene Tha’
(1) Dene Tha’ People and Territory
[7] The Dene Tha’ is an Aboriginal group within the meaning of section 35 of the Constitution Act, 1982 and an Indian Band under the Indian Act. Currently, there are approximately 2500 members of the Dene Tha’, the majority of which resides on the Dene Tha’s seven Reserves. All Dene Tha’ Reserves are located in Alberta. The three most populous Reserve communities are Chateh, Bushe River, and Meander.
[8] The Dene Tha’ defines its “Traditional Territory” as lying primarily in Alberta, but also extending into northeastern British Columbia and the southern Northwest Territories (NWT). In the NWT, the Dene Tha’ claims that its territory overlaps with that of the Deh Cho First Nation, with whom the Dene Tha’ shares significant familial and cultural relationships. The Crown asserts that the phrase “Traditional Territory” imports no legal significance with respect to the Aboriginal rights claimed by the Dene Tha’ north of the 60 parallel – the division between the NWT and the Province of Alberta.
(2) Dene Tha’ – Treaty 8 Rights in Alberta
[9] In 1899 the Dene Tha’ signed Treaty 8. Treaty 8 is a classic surrender treaty whereby the Government promised payment and various rights, including the rights to hunt, trap, and fish in exchange for the surrender of land. The territory defined by Treaty 8 does not extend into the traditional territory claimed by the Dene Tha’ in the NWT. The Dene Tha’ asserts that this means its rights in the NWT remain unextinguished as they are outside the bounds contemplated by Treaty 8. Conversely, if the Ministers are correct and the Dene Tha’s rights in the NWT are extinguished by Treaty 8, the Dene Tha’ submits that this is an admission by the Ministers that the Dene Tha’ has Treaty 8 rights in the NWT. Dene Tha’s allegation of unextinguished aboriginal rights in the NWT is discussed more fully later in these Reasons.
[10] The proposed course of the MGP travels through the NWT, ending just south of the NWT and Alberta border. The portion of the pipeline stemming from the Alberta border to its southern terminus runs through territory of the Dene Tha’ defined by Treaty 8. The proposed Connecting Facilities pass through Bitscho Lake which runs through Trap Line 99, a trap line owned by a Dene Tha’ member. None of that pipeline runs directly through Dene Tha’ Reserves.
[11] The NGTL pipeline which connects the southern terminus of the MGP with the existing Nova Gas Transmission Line also runs through territory over which the Dene Tha’ has Treaty 8 rights to hunt, trap, fish, and gather plants for food.
[12] That the pipeline does not run through a reserve, contrary to the Ministers’ implied submission, is insignificant. A reserve does not have to be affected to engage a Treaty 8 right as held in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388. What is important is that the pipeline and the regulatory process, including most particularly environmental issues, are said to affect the Dene Tha’.
(3) Dene Tha’ – Aboriginal Rights in NWT
[13] The Dene Tha’ posits unrecognized Aboriginal rights to hunt, trap, fish, and gather plants for food in the southern portion of the NWT. As proof of Government recognition of said rights, the Dene Tha’ points to government archives from the 1930’s regarding the proposal for a creation of an Indian Hunting Preserve for the Dene Tha’ in this area.
[14] The Court was not asked to determine the legitimacy of the Dene Tha’s claim to Aboriginal rights in the NWT. Moreover, as the Dene Tha’s Treaty 8 rights in Alberta are sufficient to trigger a duty to consult, there is no need to make such a determination in order to resolve this judicial review.
B. Mackenzie Gas Pipeline – Regulatory and Environmental Matrices
[15] The MGP is an enormous and complex industrial undertaking. Its proposed routing envisions a starting point in the gas fields and central processing facilities near Inuvik in the northwest corner of the Northwest Territories. From these collecting facilities, the envisioned pipeline will transport the extracted natural gas through the NWT to just south of the Alberta border. At this point, Nova Gas Transmission Limited (NGTL) in Alberta will build the Connecting Facilities up from its existing facilities to connect with the MGP. In this manner, natural gas can be transported from the northern gathering facilities to a southern distribution terminus.
[16] Initially the participants in the project envisaged the MGP extending 65 kilometres to the connecting point with NGTL’s distribution system. It appears that in the hopes of keeping the gas which flows into Alberta within Alberta jurisdiction, it was decided to have the connection point with NGTL be located just 15 metres inside the NWT-Alberta border.
[17] The Dene Tha’s initial judicial review application had sought to raise the constitutional issue of the original proposal as a single federal work or undertaking. This aspect of judicial review has been discontinued.
[18] Given the enormity of this project and its inherent cross-jurisdictional character, its conception triggered the involvement of a multitude of regulatory mechanisms. As the Dene Tha’s case rests on its exclusion from the discussions and processes surrounding this regulatory machinery, it is necessary to describe in some detail the respective geneses of the regulatory arrangements and mandates of each of these regulatory bodies. Hence, the purpose of this section is to outline the geographical, regulatory, and environmental matrices that overlay the MGP.
[19] The backdrop of the MGP consists of seven major regulatory and environmental layers: (1) the Cooperation Plan, (2) the Regulators’ Agreement, (3) the Joint Review Panel Agreement, (4) the Environmental Impact Terms of Reference, (5) the Joint Review Panel Proceedings, (6) the National Energy Board Proceedings, and (7) the Crown Consultation Unit. Each is discussed below in what is roughly chronological order – from oldest to most recent.
(1) The “Cooperation Plan”
(a) The Genesis
[20] Four years prior to the filing of an application for the MGP with the National Energy Board (NEB), representatives from various regulatory agencies began to consult with one another about how to coordinate the regulatory and environmental impact review process for such an application. The regulators and authorities involved included: Indian and Northern Affairs Canada (INAC), the Canadian Environmental Assessment Agency (CEAA), the NEB, the Mackenzie Valley Environmental Impact Review Board (MVEIRB), the Mackenzie Valley Land and Water Board (MVLWB), the Gwich’in Land and Water Board, the Sahtu Land and Water Board, the Inuvialuit Land Administration, and the Inuvialuit Game Council.
[21] In addition to these core regulatory bodies, other parties were included in the development of the Cooperation Plan. Representatives from the Government of the Yukon and the Government of the NWT were included as observers in the negotiations. The Deh Cho First Nation (Deh Cho) also, through its MVEIRB delegate, obtained observer status. As it is a helpful counterpoint to the exclusion of the Dene Tha’ from this stage of the process, a fuller discussion of the participatory role played by the Deh Cho will be developed later in these Reasons.
[22] The parties involved with developing the Cooperation Plan also heard presentations from gas producers and potential proponents of the MGP. In particular, the parties met with the Mackenzie Delta Gas Producers Group in December 2000, with the Alaska Gas Producers Group in May of 2001, and with Imperial Oil Resources Ventures Limited (IORVL).
[23] As a result of these meetings and information-gathering sessions, in June 2002, the Cooperation Plan for Environmental Impact Assessment and Regulatory Review of a Northern Gas Project through the Northwest Territories (“Cooperation Plan”) was finalized. Suffice it to say that the Dene Tha’ are noticeably absent from the list of persons, organizations and first nations people who were involved in the development of the regulatory framework.
(b) The Mandate
[24] The Cooperation Plan had a laudable objective, namely, to reduce duplication of the environmental and regulatory processes. To this end, the Cooperation Plan set up a framework for the environmental and regulatory processes to follow. This framework focused on how these processes would be integrated, how joint hearings would be conducted, and how the terms of reference for any future environmental assessment process would be developed.
(2) The Agreement for Coordination of the Regulatory Review of the MGP
(“Regulators’ Agreement”)
(a) The Genesis
[25] The Cooperation Plan recommended the filing of a Preliminary Information Package (PIP) by the proponents of the pipeline. On June 18, 2003, IORVL filed a PIP for the MGP. Subsequent to this filing, the parties to the Cooperation Plan resumed discussions on the review process for the MGP and on April 24, 2004, a number of government ministries and agencies entered into an Agreement for Coordination of the Regulatory Review of the MGP.
(b) The Mandate
[26] In addition to implementing the provisions of the Cooperation Plan and ensuring compliance with applicable legislation, like the Cooperation Plan, the Regulators’ Agreement contained as its mandate the avoidance of unnecessary duplication. In particular, the parties to the Regulators’ Agreement agreed to incorporate the final Joint Review Panel Report and other relevant materials from this process into the record of their respective regulatory processes.
(3) The Agreement for an Environmental Impact Review of the MGP (Joint Review
Panel Agreement – JRP Agreement)
(a) The Genesis
[27] On August 3, 2004, the federal Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council concluded an Agreement for an Environmental Impact Review of the Mackenzie Gas Project. The JRP Agreement specified the mandate of the Joint Review Panel and the scope of the environmental impact assessment it would conduct. A further Memorandum of Understanding, executed between the Minister of the Environment and the Inuvialuit, bestowed upon the JRP the responsibility to address certain provisions of the Inuvialuit Final Agreement (IFA).
(b) The Mandate
[28] The JRP Agreement sets out what bodies are responsible for selecting the members of the JRP. The MVEIRB (composed of delegates from the Gwich’in, Sahtu, and the Deh Cho) would appoint three members; the Minister of the Environment, four members (two of whom would be nominated by the Inuvialuit Game Council). The selection of a Chairperson would be approved by the Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council. These panelists were appointed on August 22, 2004 and were: Robert Hornal (Chair), Gina Dolphus, Barry Greenland, Percy Hardistry, Rowland Harrison, Tyson Pertschy, and Peter Usher – all named Respondents in this judicial review.
(4) Environmental Impact Terms of Reference
(a) The Genesis
[29] The scope of the JRP’s environmental assessment and the informational requirements that the proponent (applicant, IORVL) needed to provide for its Environmental Impact Statement (EIS) were defined on August 22, 2004 in the Environmental Impact Review Terms of Reference for Review of the Mackenzie Gas Project (“Environmental Impact (EI) Terms of Reference”). The EI Terms of Reference were issued by the Minister of the Environment, the Chair of the MVEIRB, and the Chair of the Inuvialuit Game Council.
(b) The Mandate
[30] The EI Terms of Reference describe the MGP as including the Connecting Facilities for the purposes of the JRP process – that is, for the purposes of the environmental assessment. The Terms of Reference also required IORVL to file an Environmental Impact Statement with the JRP. This it did in August 2004. As it was deficient for failing to include the Connecting Facilities, the JRP requested IORVL resubmit. This it did in December 2004 by way of a Supplemental Environmental Impact Statement.
(5) The Joint Review Panel Proceedings
(a) The Genesis
[31] The Joint Review Panel was contemplated initially by the Cooperation Plan, agreed to be incorporated by the Regulators’ Agreement, and implemented through the JRP Agreement. On July 18, 2005, the JRP concluded it had received sufficient information from the proponent (IORVL) to commence the public hearing process. These hearings began on February 14, 2006, are currently in process, and are scheduled to continue throughout the current calendar year and into the next.
(b) The Mandate
[32] The JRP is assigned the task of conducting the environmental assessment for the project. The project for the purposes of the JRP encompasses both the environmental impact of the MGP and the NGTL Connecting Facilities.
[33] It is important to realize that while the NEB would consider the pipeline regulatory process from the north through to the connection point 15 metres inside the Alberta border, the environmental review process takes into consideration the MGP and the Connecting Facilities to the existing NGTL facilities 65 kilometres long partially through territory in which the Dene Tha’ had asserted treaty rights as well as Aboriginal rights.
[34] The term “environment” comports a broad meaning. It includes the “cumulative effect” of the MGP and the NGTL Connecting Facilities and any other facilities to be developed in the future. The JRP is specifically mandated to consider effects on “health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing that is of historical, archeological, paleontological or architectural significance”.
[35] The JRP has no mandate to conduct aboriginal consultation. It can only consider Aboriginal rights in the context of factual, not legal, determinations. Since the JRP cannot evaluate the legal legitimacy of an Aboriginal rights claim, it can only make determinations in respect of adverse impact to current Aboriginal usage of territory. It cannot make a determination regarding the potential further use of land since this would not be based on a claim of current usage but on a claim of future use grounded in a claim of an Aboriginal right.
[36] The JRP Report will inform the NEB decision with respect to whether or not to recommend the issuance of a Certificate of Public Convenience and Necessity. When the JRP issues its Report, the NEB will stay its public hearings. These hearings will then continue after the NEB has reviewed the Report and will thus provide the public with an opportunity to respond to its contents.
(6) The National Energy Board Proceedings
(a) The Genesis
[37] IORVL made its application before the NEB in October of 2004. The NEB review arose as part of the development of a coordinated process for environmental assessment and regulatory review of the MGP defined in the Cooperation Plan.
(b) The Mandate
[38] The NEB is responsible for the decision of whether to recommend the issuance of a Certificate of Public Convenience and Necessity (CPCN) to the proponent of the pipeline project, IORVL. To determine this, the NEB has scheduled public hearings where this issue will be addressed. These hearings also began in early 2006 and are scheduled in a coordinated fashion with those of the JRP. The NEB’s hearings will be continued after the JRP process has concluded. The ultimate decision of the NEB will be informed by the Report from the JRP. If the NEB decides that the granting of a CPCN is warranted, then the federal Cabinet still must approve the actual issuance of this Certificate.
(7) The Crown Consultation Unit
(a) The Genesis
[39] The Crown Consultation Unit (CCU) is not the product of a statutory, regulatory, or prerogative exercise. It is essentially an administrative body within the federal government created unilaterally by the Government of Canada. Despite its name, one thing it had no authority to do was consult – at least not with any native group as to its rights, interests or other issues in respect of the very matters of concern to the Dene Tha’.
(b) The Mandate
[40] The mandate of the CCU is to coordinate and conduct “consultation” with First Nations groups who believe that their proven or asserted rights under section 35 of the Constitution Act, 1982 may be affected by the MGP. It was intended to serve as a medium through which the concerns of First Nations regarding the MGP could be brought to the specific relevant government Ministers. Pursuant to this overall purpose, the CCU was mandated to set up meetings, prepare a formal record of meetings, and present a record of consultation to the NEB, to Ministers, and to other Government of Canada entities with regulatory decision-making authority.
[41] The CCU has no jurisdiction to deal with matters relating to the Cooperation Plan, the Regulators’ Agreement, or the JRP Agreement. The mandate of the CCU, moreover, does not extend to the authority to determine the existence of an aboriginal right; rather, it only can address the impact on an established right. It was for all intents and purposes a “traffic cop” directing issues to other persons and bodies who had the authority, expertise or responsibility to deal with the specific matters.
C. Dene Tha’s Involvement in these Processes
(1) Cooperation Plan
[42] The Government of Canada made no effort to consult the Dene Tha’ in respect of the formulation of the Cooperation Plan. The Dene Tha’ asserts and the evidence demonstrates that all the various proposed routings of the pipeline passed through territory in Alberta over which the Dene Tha’ has recognized Treaty 8 rights. The federal government attempts to justify this exclusion on the basis that the Dene Tha’ was not an agency with any regulatory or environmental assessment jurisdiction in relation to the pipeline projects -- no jurisdiction was provided by Treaty 8, by legislation, or by a Comprehensive Land Claim agreement. As such, the Crown argues that it was reasonable for the Dene Tha’ to be excluded at this stage.
[43] The federal government further argues that the Dene Tha’ had the opportunity to comment on the draft of the Cooperation Plan as the Government of Canada released a draft to the public on January 7, 2002. Details of the public release of the Cooperation Plan and other evidence the federal government adduces to support the argument that it has fully discharged its duty to consult will be discussed in a more in-depth fashion in a consideration of whether the Crown has fulfilled its duty to consult.
(2) Regulators’ Agreement, JRP Agreement, and Terms of Reference
[44] The Dene Tha’ was not consulted in respect of the Regulators’ Agreement, the JRP Agreement, or the Environmental Impact Terms of Reference. On July 14, 2004, the federal government, through its instrument, the CCU, provided the Dene Tha’ with copies of the draft EI Terms of Reference and draft JRP Agreement, instructing that the deadline for input on both was the following day. The Dene Tha’ asserts that this was the first time it obtained official knowledge of the contents of these drafts. The federal government further submits that on June 3, 2004 through select media releases and over the internet, it invited public consultation on drafts of the Environmental Impact Terms of Reference and JRP Agreement. This fact was also relied upon by the federal government to support its argument that, to the extent it had a duty to consult, it had carried out that duty.
(3) NEB Proceedings and JRP Proceedings
[45] The Dene Tha’ has intervener status for both the NEB and JRP hearings. As interveners, the Dene Tha’ can provide oral and written submissions and can submit questions to other interveners and the proponents. The Dene Tha’ has filed a plan for participation in the public hearings of the JRP and has actively engaged in the preparation and delivery of Information Requests pursuant to the JRP Rules of Procedure.
(4) CCU
[46] In April of 2004, the Dene Tha’ learned that the federal government intended to consult with the Dene Tha’ about the MGP through the CCU. On July 14, 2004, the Dene Tha’ met with representatives of the CCU. The Dene Tha’ provided the CCU with information regarding its Aboriginal and Treaty Rights and made known its need of financial assistance to facilitate meaningful consultation efforts.
[47] The Dene Tha’ alleges that this July meeting marks the first time it was made aware of the imminent establishment of the JRP by receipt of the draft Environmental Impact Terms of Reference and draft JRP Agreement. The Dene Tha’ claims the CCU representative informed it that it had until the following day (July 15, 2004) to provide comments on these documents. Not surprisingly, the Dene Tha’ did not meet this deadline for public comment.
[48] The Dene Tha’ was also informed at this meeting that the CCU was not yet fully staffed or operational and had yet to develop its terms of reference. Moreover, up to and including October 2004, the Dene Tha’ was informed that the CCU could only begin consulting with respect to the MGP once the proponent had filed an application for the project with the NEB.
[49] The Dene Tha’ consistently and continuously pestered the CCU regarding its claim for recognition of rights north of 60. This is a subject matter distinct from its treaty rights under Treaty 8 south of 60. On January 4, 2006, the Dene Tha’ learned definitively that Canada’s position was and always had been that these rights had been extinguished via Treaty 8. This position turned out to be intractable and was reiterated by CCU representatives in its further meetings with the Dene Tha’ in 2006. The CCU stated Canada’s position was that it would consider Dene Tha’ “activities” in the NWT, but not rights.
[50] There were no other impediments to consultation with the Dene Tha’ other than the failure or refusal of the federal government to engage in consultation. The Dene Tha’ put up no barriers to such consultation, despite the suggestion by the Ministers that the Dene Tha’ had imposed some form of pre-conditions.
D. Jurisdiction over Consultation
[51] It is necessary to consider the jurisdictions of the above institutional entities – the JRP, the NEB, and the CCU – over consultation with native groups and specifically the Dene Tha’.
[52] As this is a factual inquiry, several legally salient issues need not be considered for the moment. In particular, neither the necessity of express government delegation of its duty to consult nor the necessity of an intention to consult will be addressed. There is a significant gap in the mandates of JRP, NEB, and CCU – a gap consisting of the jurisdiction to engage in Aboriginal consultation with the Dene Tha’.
[53] The JRP has jurisdiction over the entire pipeline project, including both the MGP portion stemming from Inuvik to just south of the Alberta border and the Connecting Facilities that connect the southern terminus of the MGP with the existing NGTL pipeline facilities. The JRP has a broad mandate to consider a wide range of environmental effects, including adverse impact on First Nations activities and can make factual, but not legal determinations, regarding Aboriginal rights. The JRP has no mandate to engage in consultation. Furthermore, it cannot determine the existence of contested Aboriginal rights.
[54] The NEB only has jurisdiction over what has been applied for pursuant to the National Energy Board Act. IORVL submitted an application for the MGP in October of 2004. NGTL has yet to submit an application for the Connecting Facilities and, when it does, this will not go before the NEB, but before the Alberta equivalent, the Alberta Energy and Utility Board (AEUB). As such, the NEB does not have jurisdiction to consider Aboriginal concerns south of the southern terminus of the MGP. In other words, it cannot consult meaningfully with the Dene Tha’ regarding the area from the connecting point to the southern end of the Connecting Facilities. Furthermore, there is doubt that it can address concerns the Dene Tha’ raises on this judicial review – with the creation of the process itself – as the NEB can be argued to have no jurisdiction pre-application date, that is, pre-October 2004. It is also questionable as to whether the NEB can or should deal with the creation of the process in which it was intimately involved.
[55] It was submitted that the NEB, as part of its mandate, is charged with the ability and responsibility to consider the adequacy of consultation in its determination of whether to recommend the issuance of a CPCN. It seems that inadequate Aboriginal consultation would be a factor that would militate against the public benefit of the MGP. Aside from the problems of allowing a private right to trump the benefits that the MGP might provide to the general public (given the “public interest” mandate of the NEB), the NEB, as discussed above, does not have temporal jurisdiction over consultation efforts (or lack thereof) pre-application, that is, pre-October 2004. As this is precisely the time frame that the Dene Tha’ has issues with federal government behaviour, the NEB’s inability to include such behaviour in its evaluation of the adequacy of consultation is extremely problematic.
[56] The federal government raised an argument regarding the exclusion of jurisdiction of the Federal Court by virtue of the jurisdiction of the NEB over aboriginal consultation. The government’s argument is that the NEB has a mandate to assess the adequacy of aboriginal consultation as an issue it will consider in its ultimate decision of whether to issue a CPCN.
[57] The submission is that either the NEB’s jurisdiction over issues relating to aboriginal consultation ousts the Federal Court’s jurisdiction with respect to this judicial review or that it is more appropriate for this Court to defer to the NEB process given that board’s expertise. However, that expertise is in the field of energy resources and undertakings, not native consultation or, more importantly, whether there is a duty to consult, when the duty arose and whether it had been met.
[58] It was further agreed that, pursuant to subsection 28(1)(f) of the Federal Courts Act, the Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of the NEB. Subsection 22.(1) of the National Energy Board Act provides a right of appeal to the Federal Court of Appeal on questions of law and/or jurisdiction. Section 18.5 of the Federal Courts Act is thus engaged since if the Federal Court of Appeal has jurisdiction over the NEB, then the Federal Court, it was argued, should be deprived of its jurisdiction in reviewing whether the consultation procedure, in part orchestrated by the NEB, is in compliance with section 35 of the Constitution Act, 1982 and/or the honor of the Crown.
[59] In sum, 18.5 does not apply to the case at hand. There has been no “decision or order of a federal board, commission, or other tribunal” as required for the exclusion envisioned by s. 18.5 to operate (Forsyth v. Canada (Attorney General) (T.D.), [2003] 1 F.C. 96; Industrial Gas Users Assn. v. Canada (National Energy Board) (1990), 43 Admin. L.R. 102).
[60] Moreover, this argument is essentially a red herring as the scope of the project from the NEB perspective (that is, excluding the Connecting Facilities and pre-application behavior of the Crown) does not cover what the JRP does and what is of fundamental concern to the Dene Tha’. While the NEB can deal with recognized aboriginal rights north of 60, it cannot address Dene Tha’s Treaty 8 rights south of 60.
[61] Hence, neither the JRP nor the NEB is competent to conduct Aboriginal consultation with the Dene Tha’ in respect of its territory in Alberta. Consequently, one might suppose that the CCU, the Crown Consultation Unit, the only entity left to consider, would naturally fulfill this role. However, the CCU expressly states it is not doing consultation. Its mandate does not include the ability to recognize claims to unproven aboriginal rights and, moreover, affidavit evidence reveals that the CCU has made up its mind on this point. The CCU had no jurisdiction to consult on matters relating to the Cooperation Plan, the Regulators’ Agreement, the JRP Agreement, or the EI Terms of Reference.
[62] To summarize, the only unit out of the CCU, the NEB, and the JRP that could wholly address the territorial and temporal areas of concern of the Dene Tha’ is the JRP. However, the JRP is engaged in environmental assessment, not aboriginal consultation. Although it will assess the effects the MGP and NGTL pipelines will have on aboriginal communities, it does so through the lens of environmental assessment, focusing on activities, not rights. Further, an aspect of the subject matter of which the Dene Tha’ say their rights to consultation and accommodation were ignored is the process by which the JRP itself was created.
E. Comparison of Dene Tha’ to other First Nations
[63] Against the background of the environmental and regulatory processes, it is necessary to consider the comparative treatment of the Dene Tha’ by the federal government with that of other First Nations groups: the Inuvialuit, the Sahtu, the Gwich’in, and, in particular, the Deh Cho. If the Crown is correct that differences between First Nations groups can justify differential treatment in accordance with those differences, then logic and fairness demands that substantial similarities between these groups would require similar treatment.
(1) The Inuvialuit, Gwich’in, an