Taseko Mines Limited v. Canada (Environment)

Taseko Mines Limited v. Canada (Environment)
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-12-18
Neutral citation
2019 FCA 320
File numbers
A-6-18
Notes
A correction was made on January 7, 2020
Digest
Decision Content
Date: 20191218
Docket: A-6-18
Citation: 2019 FCA 320
CORAM:
STRATAS J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
TASEKO MINES LIMITED
Appellant
and
THE MINISTER OF THE ENVIRONMENT AND THE ATTORNEY GENERAL OF CANADA AND THE TSILHQOT’IN NATIONAL GOVERNMENT AND JOEY ALPHONSE, on his own behalf and on behalf of all other members of the Tsilhqot’in Nation
Respondents
Heard at Vancouver, British Columbia, on January 15, 2019.
Judgment delivered at Ottawa, Ontario, on December 18, 2019.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
STRATAS J.A.
NEAR J.A.
Date: 20191218
Docket: A-6-18
Citation: 2019 FCA 320
CORAM:
STRATAS J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
TASEKO MINES LIMITED
Appellant
and
THE MINISTER OF THE ENVIRONMENT AND THE ATTORNEY GENERAL OF CANADA AND THE TSILHQOT’IN NATIONAL GOVERNMENT AND JOEY ALPHONSE, on his own behalf and on behalf of all other members of the Tsilhqot’in Nation
Respondents
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] Taseko Mines Limited (Taseko) appeals from a decision of the Federal Court (Justice Phelan) dated December 5, 2017, which dismissed its application for judicial review of a Decision Statement communicating decisions of the Minister of the Environment (the Minister) and of the Governor in Council (GIC) pursuant to section 52 of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 [CEAA, 2012], which determined that its proposed New Prosperity Gold-Copper Mine Project (the Project) is likely to cause significant adverse environmental effects, and that those effects are not justified in this case (Taseko Mines Limited v. Canada (Environment), 2017 FC 1100 [Reasons]). The Review Panel Final Report [Final Report] at the basis of these decisions, which is also the subject of an appeal by Taseko, is dealt with in the companion case of A-7-18.
[2] The appellant argues that the application judge erred in not finding that the decisions of the Minister and GIC should be quashed for breaches of procedural fairness and jurisdictional errors. It also asks this Court for a declaration that paragraph 5(1)(c) and section 6 of the CEAA, 2012 are inapplicable, insofar as they impair the core of the provincial legislative power under section 92A of the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5 to develop and manage non-renewable natural resources.
[3] At its core, this case raises the difficult question of the interaction between the constitutionally mandated duty to consult and the common law principles of procedural fairness and natural justice.
[4] For the reasons that follow, I am of the view that this appeal should be dismissed.
I. Facts
[5] The background facts concerning the Project and review process are laid out in detail in my reasons on file A-7-18 and there is no need to repeat them here. As for the events that followed the closing of the Review Panel (the Panel) hearings in August 2013, and which are relevant to the present appeal, they are summarized in great detail by the judge at paragraphs 11 to 44 of the decision below. I shall therefore concern myself with a brief overview of the period following the close of the Panel hearings on August 23, 2013.
[6] Once the Minister of the Environment had referred the Project to the Panel to assess its environmental effects, several distinct phases followed:
1) the preparation by Taseko and review by the Panel of an Environmental Impact Statement;
2) public hearings before the Panel;
3) the submission of a Final Panel Report to the Minister;
4) a ministerial decision regarding whether the Project is likely to cause significant adverse environmental effects, followed by (if necessary) a decision from the GIC regarding whether any such effects were justified in the circumstances; and
5) the issuance of a ministerial “Decision Statement” setting out the respective decisions of the Minister and the GIC.
[7] The Tsilhqot’in Nation has asserted and proven Aboriginal rights on the territory where the proposed gold-copper mine would have operated, and as a result, the Crown has a duty to consult the Nation and reasonably accommodate it. Consequently, the Crown appointed a “Consultation Coordinator” to liaise between the Crown and the Tsilhqot’in National Government (the TNG) in respect of the Project and to prepare a Crown Consultation Report. Indeed, the Crown planned to consult with the Tsilhqot’in throughout the process, and the Canadian Environmental Assessment Agency’s (the Agency) Crown Consultation Coordinator made it clear to Taseko that consultations with Indigenous groups were “extensive and ongoing” and that Taseko’s official could contact her with any questions (Appeal Book vol. 14, p. 19976).
[8] On October 8, 2013, two meetings took place. These meetings lie at the heart of this appeal. The first meeting was between the TNG’s representatives, the Minister and the Agency’s President, despite the Agency’s advice. It appears that the TNG sought to voice their concerns that Taseko was misrepresenting their views in public statements, and wanted to set the record straight. During the meeting, the Minister “did not speak about any specifics of the project and she did not reveal any opinion or bias or view about the project and whether it ought to go forward or not” (Reasons, at para. 14). The second meeting was between representatives of the TNG and several deputy ministers, who were briefed that they were not to discuss “any issues that [were] currently before the review panel” (Appeal Book vol. 17, p. 22245). The judge also found that Taseko learned of these meetings soon afterward, but made no objection at the time (Reasons, at paras. 15-17).
[9] The Minister does not dispute that she did not personally meet with Taseko, which is not to say that Taseko was unable to make its views known. Justice Phelan found that Taseko wrote directly to the Minister and other ministers (ibid., at paras. 31, 34, 36 and 42), published an opinion piece in a newspaper (ibid., at para. 32), and issued a press release impugning opponents of the Project and setting out arguments about how the Final Report conclusions were wrong and why the Project should be approved (ibid., at paras. 35 and 40). Moreover, it appears that Taseko’s representatives had at least one meeting and two calls with federal government officials, including the President of the Agency, Ron Hallman (Appeal Book vol. 17, pp. 22639-22640; Appeal Book vol. 5, p. 6716). In an effort to secure further meetings with other federal officials, Taseko also hired a former chief of the TNG as a consultant. Finally, Taseko organized multiple meetings with then Premier of B.C., Christy Clark, and then B.C. Minister of Energy and Mines, Bill Bennett, and provided them with arguments against the rejection of the Project which they eventually passed along to federal representatives (Reasons, at para. 38; Appeal Book vol. 17, at pp. 22573-22574, 22579-22586, 22588-22602, 22606-22607, 22725-22754, 23257-23258).
[10] The Final Report was released on October 31, 2013. On November 8, 2013, Taseko sent a response submission to the Minister which requested that Taseko be notified of any adverse submissions made to the Minister arising out of its consultations with Indigenous groups outside of the panel process (Appeal Book vol. 14, pp. 19948). Taseko claims that there is no evidence this submission was provided to the Minister. Yet, the judge found that there is such evidence (Reasons, at paras. 62 and 67). Taseko provided further submissions to the Agency on November 15, 2013, which the judge found were forwarded to a member of the Minister’s political staff (ibid., at para. 40). The TNG responded to these submissions on November 21, 2013, and Taseko had a copy of that letter by December 1, 2013 (ibid., at para. 20).
[11] On January 9, 2014, as part of Phase IV consultation and in response to the Agency’s request, the TNG provided its submissions on the Final Report to the Agency. These submissions were not provided to Taseko, but the judge found that there was nothing in those submissions that was not previously reflected in the materials before the Panel and provided to the Minister (ibid., at para. 68). On January 16, 2014, the TNG again wrote to the Agency expressing concern about the adequacy of Phase IV consultation.
[12] On January 29, 2014, the Agency sent a memorandum to the Minister requesting her decision under section 52 of CEAA, 2012 regarding whether the Project was likely to cause significant adverse environmental effects [Hallman Memo]. That memo included departmental advice setting out mitigation measures for the Minister’s consideration, the TNG’s January 9, 2014 submissions, and a solicitor-client privileged memorandum. These were the only documents before the Minister when she made her Decision on January 30, 2014. She concurred with the Agency’s recommendation and decided that the Project was likely to cause significant adverse environmental effects (paragraphs 52(1)(a) and (b) of CEAA, 2012). She therefore referred the matter to the GIC for a subsection 52(4) decision.
[13] In the weeks that followed, both supporters and detractors of the Project lobbied federal representatives and officials. For example, Taseko paid a delegation to speak in favour of the Project, and B.C. ministers apparently spoke to the federal Minister of the Environment. On the other side, representatives of the TNG met with the Agency’s President and some deputy ministers on February 12, 2014 to reiterate their positions. On February 13, 2014, the TNG also wrote to the Agency expressing concerns about Project supporters having access at the ministerial level.
[14] On February 21, 2014, the Minister was provided with a Memorandum that included a Crown Consultation Report, with the TNG’s submissions in response to the Final Report in attachment. The Consultation Report included the TNG’s views as to why the Project was not justified to proceed at the GIC decision stage. The Minister endorsed the recommendation and forwarded it to Cabinet. That Consultation Report was not provided to Taseko, nor were its submissions on justification sought.
[15] On February 26, 2014, the Minister released her Decision Statement. She decided that the Project was likely to cause significant adverse environment effects and the GIC decided that those effects were not justified in the circumstances.
[16] In the underlying application for judicial review, Taseko argued that the decisions of the Minister and GIC should be quashed for breaches of procedural fairness and jurisdictional errors, and asked the court below for a declaration that paragraph 5(1)(c) and section 6 of the CEAA, 2012 were unconstitutional, or in the alternative, that they were inapplicable, insofar as they impair the core of the provincial legislative power under section 92A of the Constitution Act, 1867.
II. The impugned decision
[17] On December 5, 2017, the Federal Court dismissed the application for judicial review. It found that the Minister owed Taseko only a “minimal” degree of procedural fairness (ibid., at para. 61) and that even if a higher degree were owed, the record indicated that such a degree was in fact afforded in this case (ibid., at para. 62). In its view, Taseko was aware of the case being made against it and was given an opportunity to answer it (ibid., at para. 67). The Federal Court also rejected Taseko’s claim that it should have been informed of any submissions received by the Minister in opposition to the Project, and that it should have been afforded an opportunity to respond prior to the final decision. There are certain circumstances where a proponent should be made aware of submissions made in the course of consultation, for example where the Crown intends to alter its position or make a decision that is contrary to the Final Report due to new concerns raised or new information provided by a First Nation. In the Federal Court’s view, this is a “fair, practical and principled rule” that ensures a proper balance between the rights of a project proponent and the importance of the duty to consult (ibid., at paras. 86 and 88). In the case at bar, the Federal Court found that no such new facts or concerns were adduced before the Minister to which Taseko could properly have responded (ibid., at para. 80).
[18] The Federal Court also rejected the allegations of unfairness with respect to the GIC’s decision on the basis that no duty attached to it (ibid., at para. 117). It further held that, even if the GIC did owe Taseko a duty of fairness, its content would be “minimal”, and it was satisfied here (ibid., at para. 118). The Federal Court also found there were no jurisdictional errors (ibid., at para. 121) and that the reasons given were sufficient (ibid., at para. 122).
[19] Taseko’s arguments with respect to the Canadian Bill of Rights, S.C. 1960, c. 44 and the unconstitutionality of paragraph 5(1)(c) and section 6 of the CEAA, 2012 were likewise unsuccessful. The Federal Court found that the former did not apply to the processes before the Minister and the GIC, insofar as these are not adjudicative processes and no “hearing” was held (ibid., at para. 132). Concerning the constitutional question, the Federal Court held that it was not necessary to deal with it here (ibid., at para. 143). If this issue had to be decided, the Federal Court said, it would have found the provisions to be within the federal Parliament’s power to legislate for “Indians, and Lands Reserved for the Indians” in subsection 91(24) of the Constitution Act, 1867. Finally, the Federal Court would have rejected the interjurisdictional immunity argument on the ground that this doctrine is generally reserved for circumstances covered by precedent, and has not yet been found to cover a provincial head of power (ibid., at paras. 157, 160).
III. Issues
[20] The present appeal raises four main questions, which can be formulated as follows:
Should the decision of the Minister be quashed for breaches of procedural fairness?
Should the decision of the GIC be quashed for breaches of procedural fairness?
Should the decisions of the Minister and the GIC be quashed for jurisdictional error?
Are paragraph 5(1)(c) and section 6 of the CEAA, 2012 inapplicable to the Project because of the doctrine of interjurisdictional immunity?
IV. Analysis
[21] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision-maker, the applicable standard of appellate review is generally that of Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47. This standard requires this Court to “step into the shoes” of the Federal Court, determine whether it identified the appropriate standard of review and whether it applied this standard correctly.
[22] The parties agree that the judge properly identified the applicable standard of review as being correctness, and rightly so (Reasons, at paras. 53-54). It is trite law that constitutional issues are to be assessed under the correctness standard (Begum v. Canada (Citizenship and Immigration) 2018 FCA 181, at para. 36; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 58), and that the same holds true for procedural fairness allegations (Del Vecchio v. Canada (Attorney General), 2018 FCA 168, at paras. 3-4; Kwan v. Amex Bank of Canada, 2018 FCA 189, at para. 11; Gupta v. Canada, 2017 FCA 211, at paras. 28-29; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79).
[23] Even when the duty of procedural fairness is at issue, however, the discrete findings of fact originally made by the application judge on the basis of evidence not contained in the tribunal record are reviewable under the palpable and overriding error standard (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10). This Court recently reiterated this in Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289 [Apotex] and Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366, which decisions also dealt with issues of procedural fairness. Henthorne v. British Columbia Ferry, 2011 BCCA 476, 344 D.L.R. (4th) 292 lends further support to this proposition at paragraph 77.
[24] Before turning to the substantive issues at the core of this appeal, a quick overview of the legislative scheme is in order. The environmental assessment of the designated project was referred to a review panel by the Minister pursuant to the old Canadian Environmental Assessment Act, S.C. 1992, c. 37, and then continued under the CEAA, 2012 (ss. 126(1) and 38). Subsection 47(1) of the CEAA, 2012 provides that the Minister, “after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1)”. This provision holds, in relevant parts, that:
52.(1) …[T]he decision maker…must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project
52.(1) …[L]e décideur…décide si, compte tenu de l’application des mesures d’atténuation qu’il estime indiquées, la réalisation du projet désigné est susceptible:
(a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and
a) d’une part, d’entraîner des effets environnementaux visés au paragraphe 5(1) qui sont négatifs et importants;
(b) is likely to cause significant adverse environmental effects referred to in subsection 5(2).
b) d’autre part, d’entraîner des effets environnementaux visés au paragraphe 5(2) qui sont négatifs et importants.
[25] If the Minister decides that the designated project is “likely to cause significant adverse environmental effects”, subsection 52(2) provides that it must refer to the GIC “the matter of whether those effects are justified in the circumstances”. The GIC can then decide, pursuant to subsection 52(4):
(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or
a) soit que les effets environnementaux négatifs importants sont justifiables dans les circonstances;
(b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances.
b) soit que ceux-ci ne sont pas justifiables dans les circonstances.
[26] Lastly, subsection 54(1) provides that the Minister must issue a decision statement to the proponent of a project informing it of the decision(s) made under section 52 of the CEAA, 2012.
A. Should the decision of the Minister be quashed for breaches of procedural fairness?
(1) Degree of Procedural Fairness Owed
[27] The appellant argues that, considering the importance of the decision and the adversarial nature of the process, it was owed more than a “minimal” degree of procedural fairness by the Minister and that, in any event, it was not even afforded this “minimal” process.
[28] In the seminal case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker], the Supreme Court, per Justice L’Heureux-Dubé, considered in detail the principles relevant to the determination of the content of the duty of procedural fairness. “The fact that a decision is administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to trigger the application of the duty of fairness” (ibid., at para. 20). The mere existence of this duty does not, however, “determine what requirements will be applicable in a given set of circumstances” (ibid., at para. 21), rather it is “[a]ll of the circumstances [that] must be considered in order to determine the content of the duty of procedural fairness” (ibid., at para. 21).
[29] Several factors were recognized by the Supreme Court as relevant to determining what is required by the duty of procedural fairness. Underlying these factors:
...is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
Ibid., at para. 22
[30] In other words, a determination of whether procedural fairness was met in any given case has always been context specific. As this Court stated in Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KF, 2006 FCA 398, [2007] 4 F.C.R. 101 [Uniboard], at para. 7:
The duty of procedural fairness is better described by its objective – which is essentially to ensure that a party is given a meaningful opportunity in a given context to present its case fully and fairly – than by the means through which the objective is to be achieved for the simple reason that those means will depend on an appreciation of the context of the particular statute and the rights affected (see Baker..., at para. 22). There is no rigid test formula. There is no list of items to be checked out. The duty, to use the words of a former era, is to ensure fair play in action.
[31] The guiding principle, therefore, is that the person affected should be afforded the means to present their case fully and fairly, and have a decision made in a fair, impartial and open process, taking into consideration the statutory, institutional and social setting of that decision. It is clear that the need for reconciliation and the duty to consult with and accommodate Indigenous groups is part and parcel of the social context to be considered in delineating the requirements of procedural fairness in a case such as this one. I shall have more to say about that later in my reasons.
[32] The appellant makes the case that two of the Baker factors—the importance of the Minister’s decision and the adversarial nature of the process—called for more than a “minimal” degree of procedural fairness. For the reasons that follow, I would set aside these arguments.
[33] The judge dealt with this question at paragraphs 50 to 65 of his reasons. Having considered the environmental assessment scheme as a whole, he concluded that “the Panel process is the venue through which the parties are to be afforded a high degree of procedural fairness” (Reasons, at para. 58), and that the Ministerial decision-making process, by contrast, “did not involve any elements” indicating that the same level was owed at this stage (ibid., at para. 59). In reaching his conclusion, the judge reviewed the Baker factors in light of the facts (ibid., at para. 61):
The Minister’s decision making process did not resemble judicial decision making (i.e., the process was not established to be adversarial, and the Minister was not required to receive submissions). The Minister was making findings of fact (as argued by Taseko), but these findings were based on the findings in the Report during the stage of the process in which Taseko had been afforded a high degree of procedural fairness. Therefore, as discussed in [Jada Fishing], the duty of fairness in this case was not as rigorous as it would have been in an adversarial, judicial, or quasi-judicial process…
Furthermore, the statutory scheme indicates that the proponent would only provide submissions if requested to do so by the Minister (s 47(2)). This indicates that the proponent does not have a right to provide such submissions, and it is entirely at the Minister’s discretion whether such submissions are warranted in the circumstances.
The importance of the decision…was reflected in the extensive process provided in front of the Panel. Further, in my view, the importance of the decision does not require that each step of the process take on a quasi-judicial character, particularly when a party’s procedural rights have been comprehensively addressed at an earlier stage of the process.
In addition, Taseko’s claim that it had legitimate expectations with respect to the Minister’s decision making process must be rejected. It was explicitly informed that its own post-Panel submissions would not be posted on the online registry (and that reasoning could easily be extended to cover any other submissions) and the CEAA’s silence in response to Taseko’s queries does not justify its assumptions with respect to process as silence does not constitute “established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified”…
[References omitted]
[34] Other than referring to its written submissions before the Federal Court in a footnote stating that it does not accept the application judge’s conclusion, “particularly having regard to the importance of the decision”, and characterizing the latter’s finding with respect to the adversarial nature of the process as “plainly incorrect, given the TNG’s submissions”, the appellant does not engage with either the judge’s findings or the Baker factors. (Appellant’s Memorandum of Fact and Law, at para. 19 [AMFL])
[35] In light of this, the appellant has not convinced me that the judge erred in concluding that it was only owed a “minimal” degree of procedural fairness at this stage of the process.
[36] With respect to the “importance of the decision”, the judge was right to say that this “was reflected in the extensive process” before the Panel (Reasons, at para. 61). As noted by the judge, that process involved “oral hearings, the submission of evidence…, cross-examination, fact finding, and a number of other trappings associated with a quasi-judicial process” (ibid., at para. 58). The appellant’s rights were “comprehensively addressed” at this stage of the process, and there was no requirement that each following step “take on a quasi-judicial character” (ibid., at para. 61). After all, each stage in the process takes its colour from the context (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 53.)
[37] In my view, the reasoning followed by this Court in Jada Fishing Co. Ltd. v. Canada (Minister of Fisheries and Oceans), 2002 FCA 103, 288 N.R. 237, [Jada] is entirely apposite here. At issue in that case was a legislative scheme whereby the Department of Fisheries and Oceans (DFO) was granting fishing licenses with a quota determining the allowable catch for each licensee. An appeal board was set up to hear appeals from fishers who disagreed with the quota allocated to their licence, which could make non-binding recommendations to the Minister when extenuating circumstances existed. The appellants were complaining that the appeal board had breached the requirements of procedural fairness in allegedly hearing evidence from DFO officials in their absence, without permitting them to respond. Writing on behalf of this Court, Justice Malone agreed with the application judge that there was no indication that DFO officials had done anything more than providing the appeal board with factual information of which the appellants had prior knowledge, and which did not prejudice them. He wrote at paragraph 16:
…[T]he appellants were provided an oral hearing before the [appeal board], made submissions orally and in writing, and availed themselves of the opportunity to be represented by counsel. Under these circumstances, it is difficult to discern any procedural unfairness which may have resulted to the appellants. The procedure involved an exercise of discretion by the Minister in a non-adversarial process. While it would be subject to a requirement of fairness, it would not attract the rigorous standard of natural justice required in an adversarial, judicial, or quasi-judicial process. Accordingly, the authorities relied upon by the appellants, including [Kane], are of no assistance.
[38] I also agree with the respondent Minister that the appellant’s “financial interests do not equate to those involving an individual’s freedom, ability to work, or risk of physical harm, where higher levels of fairness and procedural rights have been found to … exist” (Respondent Minister’s Memorandum of Fact and Law, at para. 53 [RMMFL]). This is not to say, obviously, that decisions affecting economic rights are inevitably less important than ones affecting individual rights. This idea was expressly rejected by this Court in Uniboard at paragraph 27. It is to say, rather, that in this case the appellant has not convinced me that the effect of the Minister’s decision on it should attract the same level of procedural fairness as in Baker or Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, 31 N.R. 214, [Kane], which dealt respectively with the deportation of a woman with Canadian-born dependent children and the suspension of a faculty member by a university.
[39] In any event, in the present case, this factor is neutralized by the influence of three other factors: the statutory scheme as a whole, the absence of legitimate expectations, and the deference owed to the Minister’s procedural choices. These factors are considered below.
[40] As for the appellant’s claim that the Ministerial decision-making process was adversarial in nature and fell at the judicial end of the spectrum, I find it to be without merit. As rightly pointed out by the respondent Minister, its task in the present case was essentially to form an opinion, based on the Final Report, “by considering the probabilities that certain societal concerns may materialize, and the significance of such materialization” (RMMFL, at para. 51). We are therefore far from a situation in which “the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making” (Baker, at para. 23). That there may be disagreement between proponents and opponents of a project does not change this fact.
[41] As for the other factors identified in Baker, I share the judge’s opinion that they all support a lower degree of procedural fairness towards the appellant at this stage of the process. For one, the nature of the statutory scheme—specifically, the exhaustiveness of the Review Panel process, the fact that only the Final Report must be made public, and the absence of provision for unsolicited submissions to be made to the Minister—militates in favour of a minimal duty (ibid., at para. 24). Likewise, the absence of legitimate expectations on the part of the appellant with respect to the Minister’s conduct (ibid., at para. 26) and the “important weight” that must be given to the choice of procedures made by the decision-maker and its institutional constraints (ibid., at para. 27), support the conclusion of the application judge in this regard.
[42] Throughout their submissions, the appellant made much of the interrelation between the duty to consult and the duty of procedural fairness. In its view, the application judge erred in failing to integrate the duty to consult into the audi alteram partem rule, and in choosing instead to restrict a proponent’s right to be made aware of adverse submissions and to respond to these submissions in those limited circumstances where the Crown changes its position as a result. The gist of the judge’s finding in this respect is reflected in the following two paragraphs of his reasons:
[86] In this case, the TNG acknowledged that certain circumstances will require a proponent to be made aware of submissions made in the course of consultation: the TNG suggest that a proponent should be informed if the Crown intends to alter its position or make a decision that is contrary to the Panel Report due to new concerns raised by a First Nation. Similarly, at the hearing, the TNG suggested that the proponent’s procedural fairness rights are engaged when the Crown is considering information arising in the course of consultation that is substantially new, that the Crown intends to rely on, and that materially effects the proponent.
…
[88] In my view, this is a fair, practical and principled rule that ensures the rights of project proponents are protected, while also recognizing the importance of the duty to consult.
[43] According to the appellant, this approach is flawed; a proponent should have the right to know and to respond to all adverse information provided during consultations with Indigenous groups except when it can be established that providing such information in a given case would violate the duty to consult. I am inclined to think that Taseko’s proposal would trivialize the duty to consult and empty it of its true content. It must be remembered that the duty to consult (and accommodate) is part of a process of reconciliation, which itself flows from rights guaranteed by section 35(1) of the Constitution Act, 1982, s. 35, being Schedule B to the Canada Act 1982 (UK), 1982, c.11 (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 32). It could hardly be said that the duty to consult supports and promotes reconciliation and re-affirms the nation-to-nation relationships with the First Nations if the Crown was equally to consult with the proponent and, for that matter, any other interested parties.
[44] I need not, however, come to any definitive view on that matter as I find that no breach of Taseko’s right to procedural fairness has been demonstrated. Not only has Taseko had every opportunity to make its case, but moreover, the Crown made a decision that is entirely compatible with the Panel’s findings that the Project would result in significant adverse environmental effects. In those circumstances, I do not think it would be advisable to craft broad general principles for situations that may best be left to a careful calibration of all the relevant facts.
(2) Timeliness of Procedural Fairness Allegations
[45] The appellant takes issue with the application judge’s determination (Reasons, at paras. 75, 76) that its procedural fairness allegations could not be raised for the first time on judicial review as they could have been the subject of a timely complaint before the Minister. The fact that it discovered these meetings by way of a Facebook post, says the appellant, does not meet the requirement for waiver that a party be “fully informed of the facts”, insofar as what was said at the meetings has only been revealed in the present legal proceedings (AMFL, at para. 60).
[46] In my view, the judge was right to conclude as he did. He relied on Hennessey v. Canada, 2016 FCA 180, 484 N.R. 77, in which this Court has made clear that allegations
[20] …of bias and procedural unfairness in a first-instance forum cannot be raised on appeal or judicial review if they could reasonably have been the subject of timely objection in the first-instance forum…
[21] A party must object when it is aware of a procedural problem in the first-instance forum. It must give the first-instance decision-maker a chance to address the matter before any harm is done, to try to repair any harm or to explain itself. A party, knowing of a procedural problem at first instance, cannot stay still in the weeds and then, once the matter is in the appellate court, pounce.
[47] This is not a question of formal waiver. It is one of whether the alleged procedural violations were raised at the earliest practical opportunity. Such opportunity arises when “the applicant is aware of the relevant information and it is reasonable to expect him or her to raise an objection” (Benitez v. Canada, 2006 FC 461, [2007] 1 F.C.R. 107, at para. 220, aff’d at 2007 FCA 199, [2008] 1 F.C.R. 155, quoted by Justice Stratas in Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115, at para. 67 [Maritime]).
[48] In this regard, I agree with the respondent Minister that the earliest practical opportunity for the appellant to have complained about the TNG’s meeting with the Minister would have been as early as October or November of 2013. Indeed, the judge found as a fact that the appellant knew about these meetings at that time (Reasons, at paras. 15-17; Appeal Book vol. 17, p. 22563). The judge also found that the appellant had a copy of the November 21, 2013 letter from the TNG to the Agency by December 1, 2013 (Reasons, at paras. 20; Appeal Book vol. 17, pp. 22561-62). By that time, the appellant also knew it was not being informed of what was said in these meetings, nor was it offered an opportunity to respond to it. It must have also known, at that moment, that the information provide by the TNG to the Minister would have been “adverse” to it (at least per its definition). Yet, it did not object at that time.
[49] I share the respondent Minister’s view that the broad request to be “informed” set out by the appellant in a footnote to its November letters (Appeal Book vol. 14, pp. 19948) cannot relieve it of the obligation to protest having not received information about a consultation it was already aware of. Had the appellant objected before the Minister issued its decision, the latter might have been able to assist it. Having failed to object, it must be taken to have been content with the matter (Maritime, at para. 68). I thus agree with the judge that it has waived its right to raise the matter at this stage.
[50] That being said, because the appellant was not aware of the TNG’s January 9, 2014 letter (Reasons, at para. 21), and because the judge considered its submissions at length, I will do the same.
(3) The Audi Alteram Partem Analytical Framework
[51] The appellant claims that the judge erred in law when he conflated what it considers to be the three steps for the analysis of alleged breaches to the audi alteram partem rule: (i) whether there is a risk of prejudice, (ii) whether a fair opportunity to respond was given, and (iii) whether relief should be granted. The appellant argues that the first of these steps is concerned solely with whether the impugned material was adverse to its position, and that the issue of whether the information was new or different is only relevant at the second stage of this analysis. In other words, any receipt of evidence, information or submission giving rise to a possibility of prejudice triggers the decision-maker’s duty to provide the applicant with a fair opportunity to respond. As for the test for a “possibility of prejudice”, the requirement is concerned only with whether the impugned material was adverse to the applicant’s position and could have affected the decision. Applying this test to the case at bar, the appellant submits that both the October meetings and the TNG's January 9, 2014 submission were adverse to Taseko’s interests and could have affected the Minister’s decision.
[52] In my view, the appellant unnecessarily complicates the issue and segments the analysis. Both parties agree that a “possibility” or “likelihood of prejudice” must be shown for a breach of the audi alteram partem rule to apply (Kane, p. 1116). Determining whether such a “possibility of prejudice” exists entails looking at whether the impugned information was “prejudicial” to the absent party’s position, and whether it was “new” or “different” from what was previously said at the hearing. This is made clear in several decisions of this Court, such as: Lazarov v. Secretary of State of Canada, [1973] F.C. 927 (FCA), p. 940, 39 D.L.R. (3d) 738, at p. 750; Cardinal Insurance Co. v. Canada (Finance), 138 D.L.R. (3d) 693, at p. 706, 44 N.R.