Sagkeeng First Nation v. Canada (Attorney General)

Sagkeeng First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-04-20
Neutral citation
2021 FC 344
File numbers
T-980-19
Decision Content
Date: 20210420
Docket: T-980-19
Citation: 2021 FC 344
Ottawa, Ontario, April 20, 2021
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SAGKEENG FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of the May 17, 2019 decision of the Minister of Environment and Climate Change [Minister] declining to designate the Wanipigow Sand Extraction Project for an environmental assessment under the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA 2012].
Background
[2] Canadian Premium Sand Inc. [Proponent] sought regulatory approval for the construction, operation, decommissioning and abandonment of the Wanipigow Sand Project [Project]. The Project would be located on provincial Crown land, approximately 160 kilometers northeast of Winnipeg, Manitoba. It contemplates a series of open pits for the extraction of high grade silica sand for use in oil and gas operations and the glass production industry. The Project would have a maximum production of capacity of approximately 1.2 million tonnes per year of sand (pre-processing), which is equivalent to 1.0 million tons per year of processed silica sand product.
[3] Section 2 of the Regulations Designating Physical Activities, SOR/2012-147 [CEAA Regulations], made pursuant to s 84 of CEAA 2012, stipulates that the physical activities set out in the schedule to the CEAA Regulations are designated projects for the purposes of s 2(1)(b) of CEAA 2012. Pursuant to s 16(g) of the schedule, the construction, operation, decommissioning and abandonment of a stone quarry or a gravel pit with a production capacity of 3.5 million tonnes or more per year is such a designated physical activity. As the Project contemplates production of only 1.2 million tonnes per year, it falls below the 3.5 million tonnes per year threshold and is therefore not subject to an environmental assessment.
[4] However, for physical activities that are not prescribed as designated by the CEAA Regulations the Minister may, pursuant to s 14(2) of CEAA 2012, designate that activity as a designated project. As a designated project, it would be subject to an environmental assessment under CEAA 2012. The Minister may designate a project if, in the Minister’s opinion, carrying out that physical activity may cause adverse environmental effects, or public concerns related to those effects may warrant the designation. Environmental effects that are to be taken into account in relation to a physical activity or a designated project are set out in s 5(1) of CEAA 2012.
[5] In late 2018, the Canadian Environmental Assessment Agency [Agency] undertook an analysis to advise the Minister on whether the Project should be designated. In doing so, the Agency identified nine Indigenous groups as having Aboriginal rights or uses within the Project area and invited those groups and the pubic to provide views and comments on whether the Project should be designated. In response, the Agency received eight requests for designation of the Project from the public and two requests for designation from Indigenous groups, one of which was from the Applicant, Sagkeeng First Nation [Sagkeeng]. Sagkeeng is an Indian Band as defined by the Indian Act, RSC 1985, c I-5 and is a signatory to Treaty 1. Sagkeeng’s reserve is located in the province of Manitoba, approximately 60 kilometers south of the proposed Project site.
[6] The Agency prepared a report entitled Requests to Designate the Wanipigow Sand Extractions Project under CEAA 2012- Agency Analysis and Recommendation [Agency Analysis], dated April 2019. The Agency Analysis noted that the carrying out of the physical activity contemplated by the Project may cause limited adverse environmental effects within federal jurisdiction, and that members of the public and Indigenous groups had expressed concerns relating to those effects. However, the Agency concluded that the potential adverse effects could be adequately managed including through the Proponent’s mitigation measures and Manitoba’s environmental assessment and licensing process. Neither the adverse environmental effects nor the public concerns relating to those effects warranted a federal environmental assessment. The Agency therefore recommended that the Minister not exercise her discretionary authority under s 14(2) of CEAA 2012 to designate the Project for federal environmental assessment.
[7] On April 25, 2019 the Agency prepared a Memorandum to the Minister entitled Wanipigow Sand Extraction Project – External Request for Designation under the Canadian Environmental Assessment Act, 2012 (for Decision and Signature) [Memorandum]. The Memorandum, in essence, summarizes the Agency Analysis. It also recommends that the Minister not exercise her discretionary authority under s 14(2) of CEAA 2012 to designate the Project and that the Minister sign the attached letters responding to the members of the public and the Indigenous groups that requested designation, and to the Proponent, notifying them of the Minister’s decision.
[8] By letter of May 17, 2019 the Minister notified Sagkeeng of her decision not to designate the Project. That decision is the subject of this judicial review.
Decision under review
[9] In her May 17, 2019 letter, the Minister acknowledges Sagkeeng’s concerns, set out in its January 31, 2019 letter to the Agency [January Letter], and its request that the Project be designated for an environmental assessment under CEAA 2012. Specifically, Sagkeeng expressed concerns in their January Letter as to the Project’s potential adverse effects to fish and fish habitat, wildlife – including migratory birds, human health, and treaty rights including hunting, fishing and harvesting. The Minister states that she carefully considered Sagkeeng’s input, and input from other Indigenous groups, provincial authorities and members of the public, as well as scientific knowledge and information provided by federal expert departments, including Environment and Climate Change Canada, Fisheries and Oceans Canada, Health Canada, Transport Canada, Parks Canada and Indigenous Services Canada.
[10] The Minister states that it was her understanding that Manitoba Sustainable Development had undertaken a provincial environmental assessment of the Project under Manitoba’s The Environment Act, CCSM c E125 [The Environment Act] and that provincial regulatory mechanisms would be applied to the Project. Further, that the provincial Technical Advisory Committee had reviewed and provided comments to the Proponent on the key issues that Sagkeeng identified in its January Letter, including concerns about air quality/health.
[11] The Minister states that in making a determination on whether to designate the Project, she considered whether it may cause adverse environmental effects on areas of federal jurisdiction or whether concerns regarding those effects warranted a designation. Having also considered the existing provincial environmental assessment and federal and provincial regulatory mechanisms to mitigate any potential impacts associated with the Project, she decided not to designate the Project under CEAA 2012. The Minister states that she is confident that any potential effects to fish and fish habitat, migratory birds, health and traditional use of lands and resources would be addressed through the Proponent’s mitigation measures, provincial assessment under Manitoba’s The Environment Act and federal regulatory requirements pursuant to the Fisheries Act, RSC 1985, c F-14 [Fisheries Act] and the Migratory Birds Convention Act 1994, SC 1994, c 22 [Migratory Birds Convention Act].
[12] The Minister states that it was her understanding that Sagkeeng had raised its concerns with Manitoba Sustainable Development as a part of a public comment period. Further, that Manitoba Mineral Resources Division (Mines Branch) is leading the Crown consultations associated with the environmental assessment and licensing process and the Minister understood that Mines Branch had invited Sagkeeng to identify concerns in relation to the Project.
Issues and standard of review
[13] The parties agree that the sole issue in this matter is whether the Minister’s decision not to designate the Project for an environmental assessment under CEAA 2012 was reasonable.
[14] This judicial review was originally set down to be heard on January 23, 2020. On December 19, 2019 the Supreme Court of Canada rendered its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Sagkeeng requested that the hearing be adjourned and that it be permitted to amend its memorandum of fact and law to address the standard of review in light of Vavilov. I granted that request by Order dated January 17, 2020, adjourning the matter to June 23, 2020. I also gave the Respondent the opportunity to amend its submissions.
[15] In their respective amended memoranda of fact and law, both parties maintain their original submission that the reasonableness standard of review applies.
[16] In their amended materials, Sagkeeng also added submissions addressing how the reasonableness of a decision is to be assessed as set out in Vavilov. Sagkeeng also cites from a Federal Court of Appeal decision in Coldwater Indian Band v Canada (Attorney General), 2020 FCA 34 [Coldwater] issued after Vavilov. Coldwater analyzes whether a duty to consult had been reasonably satisfied. And, as will be discussed below, Sagkeeng also made other amendments to its submissions and added an entirely new argument to its memorandum of fact and law pertaining to consultation and reliance.
[17] The Respondent submits that Vavilov confirms that the reasonableness standard of review applies to this matter. However, nothing in Vavilov makes consultation an issue in this application when it was not previously raised, or supports the addition of a new argument without prior leave from the Court.
[18] I agree with the parties that the reasonableness standard of review applies. The Supreme Court in Vavilov addressed what is required of a court when performing a reasonableness review (Vavilov at paras 73 to 142). In sum, the reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99). Further, a reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the decision maker. The reasonableness standard requires that the reviewing court defer to such a decision (Vavilov at para 85).
Preliminary issue – admissibility of new affidavit
[19] In its amended written submissions, Sagkeeng stated that it intended to bring a motion pursuant to Rule 312 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] seeking an order granting it leave to serve and file a supplemental affidavit to “adduce evidence showing that Manitoba has continued to fail to consult with SFN (Sagkeeng)”. The Respondent indicated in its responding amended memorandum of fact and law that it reserved its right to challenge any motion for leave to adduce fresh evidence.
[20] Although Sagkeeng filed its amended memorandum of fact and law on February 10, 2020 and, due to the Covid pandemic, the judicial review was not heard until more than a year later, on April 7, 2021, Sagkeeng took no steps to pursue a motion to file a supplementary affidavit until March 29, 2021.
[21] On that date, counsel for Sagkeeng sent a notice of motion in writing, pursuant to Rule 369, to the Registry seeking leave to file an Affidavit of Chief Derrick Henderson, affirmed on March 17, 2021 [Henderson Affidavit], pursuant to Rule 312. In the alternative, Sagkeeng sought an order permitting the filing of the affidavit subject to a determination of its admissibility at the April 6, 2021 hearing. By letter of April 1, 2021 counsel for the Respondent wrote to the Registry indicating that the Respondent’s understanding was that Sagkeeng did not intend to file a motion record, as required by Rule 364. The Respondent also set out its view that the test for the admission of new affidavit evidence, as found in Forest Ethics Advocacy Assn v National Energy Board, 2014 FCA 88 at para 4 [Forest Ethics], did not appear to have been met. Moreover, that a Rule 312 order is discretionary and the factors to be considered by the Court in exercising that discretion did not support Sagkeeng’s request.
[22] By oversight, the Registry did not inform me of the request to file the Henderson Affidavit or of the Respondent’s letter until immediately before the hearing. The motion had not been filed by the Registry or referred for direction by the Court. It also does not appear that Sagkeeng sought confirmation of the status of its request prior to the hearing.
[23] At the hearing before me, Sagkeeng confirmed that it had not filed written representations in support of its motion as required by Rule 364(2). Counsel for Sagkeeng stated that they had determined that it was not expedient to do so. However, as counsel began to make their submissions as to the admissibility of the Henderson Affidavit, it became apparent that detailed submissions had been prepared which counsel was referencing in their oral submissions. Counsel for Sagkeeng also provided the Respondent with a Second Supplemental Book of Authorities in support of the motion on the holiday Monday before the Tuesday hearing.
[24] Rule 312 permits a party, with leave of the Court, to file additional affidavits. The Federal Court of Appeal in Forest Ethics (at paras 4–6; also see Connolly v Canada (Attorney General), 2014 FCA 294 at para 6) set out the requirements that must be met to obtain an order under Rule 312. First, an applicant must satisfy two preliminary requirements:
(1) The evidence must be admissible on the application for judicial review. Generally the record before the reviewing court consists of the material that was before the decision-maker, although there are exceptions to this; and
(2) The evidence must be relevant to an issue that is properly before the reviewing court.
[25] If these two preliminary requirements are met, the applicant must then convince the Court that it should exercise its discretion in favour of granting the order under Rule 312. Three questions have been identified to guide the Court in determining whether the granting of an order under Rule 312 is in the interests of justice:
(a) Was the evidence sought to be adduced available when the party filed its affidavits under Rule 306 or 308, as the case may be, or could it have been available with the exercise of due diligence?
(b) Will the evidence assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result?
(c) Will the evidence cause substantial or serious prejudice to theother party?
(see also Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 from paras 10 – 16).
[26] As a general rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary record that was before the decision maker. Evidence that was not before the decision maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association of Universities and Colleges of Canada v Canadian Copyrights Licensing Agency, 2012 FCA 22 ; Bernard v. Canada Revenue Agency, 2015 FCA 263 at para 35). The first exception is an affidavit that provides general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review, but care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision maker. The second exception is evidence that brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision maker so that the Court can fulfill its role of reviewing for procedural unfairness. The third exception is evidence that highlights the complete absence of evidence before the administrative decision maker when it made a particular finding.
[27] Here, Sagkeeng seeks to admit the Henderson Affidavit. The Henderson Affidavit describes Sagkeeng’s requests to Manitoba that Sagkeeng be included in the provincial environmental assessment process and that the Manitoba Crown fulfil its duty to consult. Attached to the Affidavit are seven exhibits. The first three exhibits are correspondence by Sagkeeng’s counsel to the Environmental Approval’s Branch of Manitoba Sustainable Development between February 12, 2019 and May 13, 2019: in response to a Notice of Environment Act Proposal pertaining to the Project; in response to subsequent correspondence from the Manitoba Sustainable Development Branch (not attached) seeking further comments and questions regarding the additional information provided by the Proponent regarding the Environment Act Proposal; and, asserting that the duty to consult had not been satisfied.
[28] Also attached as an exhibit is a May 16, 2019 letter to the Proponent referencing an enclosed Environment Act Licence No. 3285 dated May 16, 2019 [Licence] and advising that Manitoba Sustainable Development had determined that public concerns with the Project had been addressed through the additional information and/or through licence conditions. Accordingly, and pursuant s 27 of The Environment Act, a public hearing for the Project was not recommended to the Minister of Sustainable Development, that recommendation decision was open for appeal for a period of 30 days [Manitoba Letter to Proponent].
[29] Finally, attached to the Affidavit as exhibits are: a June 14, 2019 letter from Sagkeeng’s counsel to the provincial Minister of Sustainable Development appealing the decision to issue the Licence without holding a public hearing; the Minister’s response on February 14, 2020 dismissing the appeal; and, counsel’s letter of March 11, 2020 to the Manitoba Minister of Conservation and Climate requesting that the appeal be referred to the Lieutenant Governor in Council for consideration pursuant to s 29 of The Environment Act.
[30] In my view, for a variety of reasons, the Henderson Affidavit fails to meet the requirements for admissibility under Rule 312. None of this evidence was before the Minister when she made her decision. The first three letters from counsel predate the Minister’s decision. However, they are not copied to the Minister, they are not found in the CTR and there is no evidence to support Sagkeeng’s position that the Minister had actual or constructive knowledge of these letters when she made her decision. This is also true of the Manitoba Letter to Proponent. Further, these documents were available to Sagkeeng and could with reasonable diligence have been submitted when Sagkeeng originally filed its application for judicial review on June 14, 2019.
[31] As to the letters from counsel sent in June 2019 and later, they postdate the Minister’s decision and take issue with a decision by Manitoba not to hold a public hearing.
[32] Finally, and most significantly in my view, the Respondent was seriously prejudiced by the failure to bring the motion in a timely manner and by Sagkeeng’s failure to provide written submissions, as required by Rule 364, explaining how the Henderson Affidavit meets the Rule 312 requirements and why Sagkeeng sought its admission.
[33] Sagkeeng made no mention of the Licence or any documents pertaining to Manitoba’s environmental assessment process in its original written submissions. When granted leave to address the Vavilov standard of review, Sagkeeng went further and added a new argument, without leave, asserting that the Minister’s decision was unreasonable because the Minister failed to ensure proper consultation by Manitoba – but even then no mention was made of the existence of the Licence, the Manitoba Letter to the Proponent or other documentation. And while Sagkeeng suggested at that time that it would seek leave to file a supplemental affidavit, it was not until more than a year later, on March 26, 2021 and just four business days before the hearing that Sagkeeng sought to pursue a motion to file a supplementary affidavit. It then did so without providing written representations supporting its motion and explaining why the motion had not been brought earlier. In the result, the Respondent was prejudiced. The Respondent was denied the opportunity to assess the proposed new evidence, to conduct any cross-examination on the affidavit or to seek leave to file its own responding supplemental affidavit. I also note that the Respondent also did not have a meaningful opportunity to consider and respond to the new arguments that Sagkeeng sought to make at the hearing concerning the Licence or Sagkeeng’s assertion that the Minister was obliged, by the honour of the Crown, to ensure the adequacy of the Manitoba environmental assessment consultations.
[34] Ultimately, at the hearing counsel for Sagkeeng advised that it only sought admission of paragraph 8 of the Henderson Affidavit and Exhibit D, the Manitoba Letter to the Proponent. Counsel also noted that the Manitoba Letter to the Proponent and a copy of the Licence were found in Sagkeeng’s Second Supplemental Book of Authorities. Counsel advised that the letter had been included in error but invited the Court to take judicial notice of the Licence.
[35] At the hearing I advised that I would reserve my determination as to the admissibility of the Henderson Affidavit. Given my reasons above, I find the Henderson Affidavit to be inadmissible in whole. As to the Licence, this should properly have been put in evidence by way of an affidavit and should have been addressed in Sagkeeng’s written submissions. In any event, for the reasons I have set out in my analysis below, the existence and date of the Licence does not change the outcome of this application for judicial review.
Legislation
[36] The relevant provisions of CEAA 2012 and the CEAA Regulations are set out in Annex A of these reasons.
[37] I note in passing that in August 2019, subsequent to the Minister’s decision, CEAA 2012 was repealed and replaced by the Impact Assessment Act, SC 2019, c 28. The parties agree that s 9 of the Impact Assessment Act is the equivalent of s 14(2) of CEAA 2012.
Reasonableness of the decision
Sagkeeng’s position
[38] In its written submissions Sagkeeng acknowledges that the Minister is entitled to deference, however that her decision was unreasonable in the totality of the circumstances.
[39] Specifically, that the Minister’s decision is unreasonable because she did not adequately consider all relevant considerations raised by Sagkeeng and other interested parties, including the potential adverse effects of the depletion of groundwater that may result if the Project proceeds, and the environmental impact of the Project, including cumulative effects.
[40] Further, the Minister unreasonably exercised her discretion by relying on unspecified or hypothetical mitigation processes that were not provided by the Proponent. Sagkeeng submitted that the Minister disregarded this lack of evidence regarding mitigation, including with respect to adverse effects related to fish and fish habitat and the adverse effects on the health of Indigenous people. And, with respect to admitted deficiencies in the Proponent’s Environment Act Proposal, the Minister unreasonably relied on Manitoba’s regulatory scheme to address significant issues that could affect First Nations, and specifically Sagkeeng. This reliance is particularly problematic in light of concerns raised by relevant federal agencies including Environment and Climate Change Canada and Health Canada about the Project. Nor does Manitoba’s scheme consider cumulative effects that would be unregulated in the absence of a federal environmental impact assessment.
[41] As noted above, Sagkeeng’s amended memorandum of fact and law also adds a new argument, being that the Minister abdicated her responsibility to ensure proper consultation with Sagkeeng. Sagkeeng submits that a duty to consult was triggered because the Minister was informed by the Agency that the Project may cause limited adverse environmental effect to Indigenous communities. However, the Minster instead unreasonably relied on her understanding that the Manitoba Mineral Resources (Department of Growth, Enterprise and Trade) was leading consultation with Indigenous groups as part of the environmental assessment and regulatory approval process. The record contains no evidence of meaningful consultation or that Indigenous Services Canada provided any comment on Manitoba’s alleged consultation. Sagkeeng was given only one opportunity to respond to the request for designation and there was no follow up between Canada and Sagkeeng. Nor is there any evidence in the record of how the Minister concluded that consultation could properly be carried out by Manitoba, other than Manitoba stating that their consultation process would address the issues raised. Sagkeeng submits that the Minister’s failure to ensure that Sagkeeng is adequately consulted is a fundamental gap in her analysis. Her reliance on an alleged understanding that Manitoba would carry out a proper consultation was an unreasonable chain of analysis rendering her decision unreasonable.
[42] When appearing before me, counsel for Sagkeeng further revised or perhaps refined this argument. Counsel for Sagkeeng advised that this is not a duty to consult case. Rather, that in making her decision the Minister relied on an unfounded presumption that Manitoba would conduct the required consultation. As I understood the argument, because Sagkeeng’s treaty rights in its traditional territory would be affected by the Project, even if the Minister was not under a duty to consult with respect to her s 14(2) designation decision, the honour of the Crown was engaged. Thus, given her reliance on the Manitoba environmental assessment, and that the Minister’s duty to act honourably was engaged, the Minister was required to ensure that the Manitoba consultation would be or was adequate. However, she made fundamental errors of fact and failed to inform herself of relevant and necessary facts, in particular with respect to the existence of the Licence, rendering her decision unreasonable.
Respondent’s position
[43] The Respondent submits that the Minister’s decision was reasonable in all of the circumstances, having regard to the statutory regime, relevant considerations and the evidence. Further, the Minister’s decision made under s 14(2) of CEAA 2012 is discretionary. Even if the Minister is satisfied that the subject physical activity may cause adverse environmental effects or that public concerns related to those effects may warrant designation of the project, it is still open to the Minister to decide not to make the designation.
[44] The Respondent submits that the decision is also intelligible, transparent and justified. It directly refers to the contents of the record before the Minister and concurs with the evidence presented to the Agency and with the Memorandum. The Minister is presumed to have considered the entire record and her reasons need not explain every factor that led to her decision. The Respondent submits that the Minister adequately considered all relevant considerations raised by Sagkeeng, including with respect to groundwater depletion and environmental impact and cumulative effects of the project, and points to places in the record that demonstrate that the Minister considered those concerns. Further, the Minister appropriately took into account the environmental effects listed in s 5(1)(a) to (c) of CEAA 2012. The Respondent’s submissions address the Minister’s consideration of each of these effects. The Respondent concludes that the Minister’s reasons demonstrate that she did not misapprehend or ignore relevant considerations.
[45] Further, the Minister did not conclude that the Project would not cause any adverse environmental effects within the federal jurisdiction as defined by s 5 of CEAA 2012. Rather, she recognized and concluded that the Project may cause limited adverse environmental effects but was satisfied that these could be adequately managed by various mechanisms. These mechanisms include the Proponent’s proposed mitigation measures; the provincial environmental assessment and licencing process; the provincial regulatory mechanisms (such as provincial permits under The Crown Lands Act, The Wildlife Act, and a provincial water rights licence for the use of groundwater); and, federal regulatory mechanisms (such as the prohibition against the deposit of deleterious substances in fish-bearing waters under the Fisheries Act). The Respondent acknowledges that in some cases there was a lack of evidence before the Minister on specific mitigation measures. However, the Respondent submits that the Minister was satisfied that other mitigation measures would address the potential environmental effects and concerns or that the risk was otherwise acceptable given the limited adverse environmental effects.
[46] Nor did the Minister place undue reliance on the Manitoba regulatory scheme. The Minister reasonably took that scheme into account as a factor to be considered in making her decision, particularly because no federal permits or authorizations were required for the Project.
[47] As to the issue of consultation, the Respondent submits that the Court’s Order permitting revised submissions speaking to the impact of Vavilov did not open the door to an examination of the adequacy of consultation, an issue that was not previously raised. Further, the Project is located on provincial Crown land and is subject to a provincial environmental assessment and associated licensing. The Minister considered the submissions of the Agency, which included those received from Sagkeeng, and the Agency’s conclusion that Manitoba’s consultation process would provide Indigenous groups with the opportunity to express concerns and seek resolutions. At the time the Minister made her decision, Manitoba Mineral Resources was leading the provincial Crown consultation process with Indigenous groups as part of the environmental assessment and licensing process. That process was in its early stages. The issue now raised by Sagkeeng concerns the conduct of the Manitoba authorities with respect to Manitoba’s separate duty to consult. If Project approval may adversely effect Sagkeeng’s rights, it is for Manitoba to ensure that it has met its own independent duty to consult.
[48] The Respondent submits that this matter does not concern an abdication of responsibility by the Minister to ensure Manitoba’s consultation with Sagkeeng was adequate, as Sagkeeng submits. Rather, it concerns a threshold question of whether a federal assessment should be required at all. It was not unreasonable, illogical or irrational for the Minister, in declining to designate this otherwise ineligible project for federal assessment, to let the provincial consultation process, which was in its early stages, run its course. The Minister’s decision must not be reviewed with the benefit of hindsight. Should Sagkeeng consider Manitoba’s assessment processes to be inadequate in general, or in the specific context of ensuring that the province has met its separate duty to consult, Sagkeeng’s remedy lies in challenging those processes.
[49] When appearing before me the Respondent pointed out that the Licence is not found in the CTR and the Respondent had not had an opportunity to address it or the related arguments raised by Sagkeeng at the hearing.
Analysis
January Letter
[50] In my view, the starting point for this analysis is the January Letter from Sagkeeng to the Agency in response to the Agency’s letter of December 24, 2018 inviting Sagkeeng to provide views and comments on whether the Project should be designated under CEAA 2012. In the January Letter, Sagkeeng described its concerns about the Project.
[51] Sagkeeng states that it has not been consulted regarding the Project, which is located within it traditional territory where its members exercise their Aboriginal Treaty rights to hunt, fish and harvest. And, upon review of the Environment Act Proposal submitted by the Proponent, it was apparent to Sagkeeng that there would be adverse environmental impacts because of the Project. Sagkeeng disagreed with the Proponent’s view that it was not anticipated that Project related activities would interact with fish of fish habitat. Sagkeeng submitted that due to the close proximity of quarry leases to Lake Winnipeg, further environmental assessment and independent expert study was necessary to determine the possibility of adverse effects to fish and fish habitat due to project runoff and groundwater contamination.
[52] Sagkeeng submitted that the Project would have adverse effects on aquatic and terrestrial wildlife and migratory birds in the region due to vegetation clearing activities, noise and light pollution from equipment during construction and operation, truck traffic and dust from mining. This effect would be magnified by the 24 hour per day, 7 days per week, year round operation of the Project for up to 54 years.
[53] Sagkeeng also asserted that although the Project did not appear to meet the “arbitrary threshold” of 3.5 million tonnes per year so as to be a designated project, further studies and a review panel were essential to a new and novel project of this nature. Sagkeeng noted that similar projects in the United States have been linked to adverse health impacts to individuals working in the mine, transporting cargo and living near this type of project and its transportation routes. Further, that mining activities of this type may create a pathway for chemicals and/or bacteria to more easily reach groundwater and that a Closure Plan and not been developed and submitted to the Manitoba Sustainable Development at that time.
Memorandum
[54] As noted above, having received responses from Sagkeeng and other interested persons and entities, the Agency prepared a Memorandum for the Minister. This included a description of the proposed Project. The Memorandum noted that the Project would be located within Treaty 5 territory and approximately 225 metres west of Hollow Water First Nation. The quarry would consist of a series of open pits, to be mined at a rate of one pit per year, over a period of 54 years. Further, that the Proponent holds a block of 2289 hectares of provincial quarry leases in the area, of which the total surface areas disturbed by the Project would be 353 hectares. A total of 83 hectares would be disturbed at any time due to the sequential nature of the open pit development. The Agency identified nine Indigenous groups, including Hollow Water First Nation and Sagkeeng, as potentially affected by the Project and invited them to provide input. The Agency also sought and received input from the Proponent, Manitoba Sustainable Development, the individual requestors, and federal authorities (Fisheries and Oceans Canada, Environment and Climate Change Canada, Health Canada, Parks Canada, Natural Resources Canada, Transport Canada and Indigenous Services Canada).
[55] There are three Annexes to the Memorandum. Annex I is a Project Map Location, Annex II is the Agency Analysis, and Annex III contains the requests for designation. The Memorandum notes that the annexed Agency Analysis provides a summary of the concerns raised by the requestors and the Agency’s full analysis, including consideration of input from Indigenous groups, the Proponent, Manitoba Sustainable Development and the federal authorities. This is significant as it demonstrates that the information before the Minister when she made her decision included all of this information.
[56] The Memorandum outlines the decision making framework found in s 14(2) of CEAA 2012 and also notes that the Project is subject to a provincial environmental assessment under Manitoba’s The Environment Act. Further, that the Proponent had submitted an Environment Act Proposal to Manitoba Sustainable Development and that the Project would also require provincial permits under The Crown Lands Act, the Wildfires Act, and a provincial water rights licence for use of groundwater needed to support the processing facility. Should the Province allow the Project to proceed, it would issue an Environment Act Licence specifying the conditions with which the Proponent must comply. No federal permits or authorizations were required for the Project.
[57] The Memorandum then set out the considerations, being a summary of the views expressed by all of the relevant parties. The first of these was the views of Indigenous groups and the public. While Hollow Water First Nation had not responded to the Agency regarding the designation of the Project, the Agency had received a copy of a Hollow Water First Nation letter addressed to Manitoba Sustainable Development supporting the Project. This letter confirmed that Hollow Water First Nation was satisfied with how the Proponent addressed the environmental concerns. The Chief of Hollow Water First Nation had also publically supported the Project in the media, citing economic and social benefits for the community.
[58] The Memorandum notes that Sagkeeng and the Manitoba Metis Federation identified a number of concerns and requested that the Project be designated. Specifically, they identified potential adverse effects to fish and fish habitat, migratory birds, health, current use of lands and resources for traditional purposes, heritage resources, and to Aboriginal and Treaty rights as well as a lack of consultation. Concerns were also expressed regarding impacts beyond the environmental effects defined in s 5 of CEAA 2012, including traffic and transportation effects on provincial highways, air quality and public health effects and impacts on Aboriginal and Treaty rights.
[59] Having identified and summarized all of the submissions, the Memorandum provided its analysis:
ANALYSIS
The Agency considered the matters set out in its reference guide Designating a Project under CEAA 2012, such as proposed mitigation and other existing legislative or regulatory mechanisms that might address the potential environmental effects and concerns expressed, in its analysis of whether the Project may cause adverse environmental effects and if concerns expressed warrant designation. In addition, the Agency considered advice from federal authorities and comments from Indigenous groups, the public and the proponent.
The Project may cause limited adverse environmental effects to fish and fish habitat due to erosion and sedimentation, acid rock drainage and groundwater interactions. The Agency is of the view that the potential adverse environmental effects to fish and fish habitat would be limited in nature as there is no direct disturbance to fish habitat. In addition, the proponent has proposed mitigation measures including implementation of an erosion and sediment control plan, placing extracted shale in a clay-lined pit and capping with limestone to neutralize acidic d