Ermineskin Cree Nation v. Canada (Environment and Climate Change)

Ermineskin Cree Nation v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2021-07-19
Neutral citation
2021 FC 758
File numbers
T-1014-20
Notes
A correction was made on March 1, 2023.
Reported Decision
Decision Content
Date: 20210719
Docket: T-1014-20
Citation: 2021 FC 758
Ottawa, Ontario, July 19, 2021
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
ERMINESKIN CREE NATION
Applicant
and
THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE, THE ATTORNEY GENERAL OF CANADA AND COALSPUR MINES (OPERATIONS) LTD.
Respondents
JUDGMENT AND REASONS
I. Facts
A. Overview
[1] Ermineskin Cree Nation [Ermineskin], an Indian band within the meaning of the Indian Act, RSC, 1985, c I-5 [Indian Act], seeks judicial review of an Order issued by Honourable Jonathan Wilkinson as Minister of Environment and Climate Change [Minister] dated July 30, 2020 [Designation Order]. The Designation Order designated the proposed Vista Coal Mine Phase II Expansion Project [Phase II], and a proposed limited scale Underground Test Mine [limited Underground Test Mine] added to the Vista Coal Mine [Phase I], which had been approved in 2014. The Designation Order was made under subsection 9(1) of the federal Impact Assessment Act, SC 2019, c 28, s 1 [IAA].
[2] This application is one of two concerning the Designation Order. The other is brought by Coalspur Mines (Operations) Ltd. [Coalspur]. Coalspur is the proponent of the mines in question, and brings its application in Court file T-1008-20. Both applications request the same relief, namely an Order quashing the Designation Order. Both were argued one after the other on May 19 and 20, 2021. I am quashing the Designation Order in this Ermineskin application Court file T-1014-20. Reasons will be issued shortly in connection with the Coalspur’s application in T-1008-20.
[3] In addition to being a band under the Indian Act, Ermineskin is also a member of the Four Nations of Maskwacis, which is Alberta’s largest Indigenous nation. Ermineskin is a signatory to Treaty 6 to which Canada is also an adherent. Ermineskin’s traditional territory is known as the Bear Hills or Maskwacheesihk [Traditional Territory] and is approximately 25,000 acres in size.
[4] Ermineskin holds and exercises Aboriginal and Treaty rights [Aboriginal rights] throughout both the Treaty 6 territory and the Traditional Territory. These rights are recognized, affirmed and protected by section 35 of the Constitution Act, 1982. These Aboriginal rights include, but are not limited to the right to hunt, fish, trap and gather “on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.”
[5] Ermineskin has entered into an Impact Benefit Agreement [2019 IBA] with Coalspur by which Coalspur will provide valuable economic, community and social benefits to Ermineskin. This agreement was entered into after consultation occurred regarding Phase II. Ermineskin has a similar agreement with Coalspur in connection with the ongoing Phase I [2013 IBA]. Both are intended to compensate Ermineskin for potential impacts caused by natural resource development on the ability of Ermineskin members to exercise Aboriginal rights within their Traditional Territory. Phase II also entails a taking up of lands covered by Treaty 6.
[6] Lying at the heart of this Application is Ermineskin’s submission the Designation Order will adversely impact Aboriginal and Treaty rights including economic opportunities created by its contractual relationship with Coalspur pursuant to the 2019 IBA. If it does, the honour of the Crown imposes a duty to consult with Ermineskin on the Minister before making the Designation Order. Ermineskin argues the Designation Order will “delay, lessen, or eliminate Ermineskin’s economic interest” in Phase II and the limited Underground Test Mine. The Respondent Minister rejects this submission. He says (at paragraph 68 of Respondent Minister’s Memorandum) such loss of economic, social and community benefits is not an adverse impact related to an Aboriginal or Treaty right, and does not relate either to Aboriginal title to the land that may be developed, or to the ownership of the coal resource. The only connection is indirect, in relation to a third party, speculative and contingent compensation for potential adverse impacts to the asserted rights should Phase II and the limited Underground Test Mine go ahead. Therefore, the Minister claims there is no duty to consult Ermineskin.
[7] With respect, I disagree.
[8] Well-established jurisprudence requires a generous and purposive approach to the constitutionalized doctrine of the honour of the Crown and its corollary, the duty to consult. This flows from relevant and important objectives including reconciliation between Canada and First Nations. The jurisprudence now extends the duty to consult to include economic rights and benefits closely related to and derivative from Aboriginal rights as discussed below. Thus, rights that are closely related to and derivative from Aboriginal rights are protected by the duty to consult which of course flows from the constitutionalized doctrine of the honour of the Crown.
[9] In my view, given the uncontroverted evidence in this case, the 2019 IBA negotiated by Ermineskin contains valuable economic rights and benefits that are closely related to and derivative from Aboriginal rights, and as such give rise to the duty to consult. So too does the taking up of land contemplated.
[10] It is not disputed the Minister did not consult with or even give notice to Ermineskin before making the Designation Order. The only Indigenous groups consulted by the Minister were those requesting the Designation Order. In my respectful view, the Minister had a duty to consult Ermineskin, which he completely breached.
[11] Therefore, judicial review will be granted. It will not be necessary to deal with procedural fairness or the reasonableness of the Designation Order.
B. The mines and negligible impact of the limited Underground Test Mine on Phase II
[12] Three contiguous coal-mining activities are referred to in this proceeding. All are owned by the Respondent Coalspur:
First is the existing Phase I. It was proposed in 2012, approved in 2014, and delivered its first shipment in 2019. It produces approximately 6 million tonnes of coal per year and occupies approximately 1,435 hectares. The approval of Phase I is not in issue in this proceeding. It was provincially approved in early 2014; it was not subject to a federal environmental impact assessment. Federal issues including Aboriginal and Indigenous issues were considered by the provincial Alberta Energy Regulator [AER] with input from federal departments and agencies such as the federal department Fisheries and Oceans Canada in relation to water quality and fish habitat;
The second is Phase II, a proposed expansion of Phase I. Phase II would increase maximum production by 4.2 million tonnes per year, and the area of its expansion is approximately 633.6 hectares. Prior to the Designation Order it was undergoing environmental assessments by the AER, as had been the case with Phase I. The AER will consider potential adverse effects on the environment and exercise of Aboriginal and Treaty rights. The Alberta Consultation Office [ACO], a branch of the Government of Alberta responsible for ensuring Alberta’s duty to consult is met, had directed Coalspur to consult with six First Nations – including Ermineskin – regarding Phase II. Coalspur had been engaging with Ermineskin on Phase II since early 2019.The Minister decided not to designate Phase II in December 2019, but reversed himself in issuing the Designation Order in July 2020. The Impact Assessment Agency [Agency] recommended against designation in 2019, and again in 2020;
The third is a much smaller limited Underground Test Mine. It is located entirely within the footprint of previously approved Phase I. Its new surface disturbance is only 2.52 hectares, or about 0.2% of the surface area of Phase I. Its production volume is limited to approximately 10% of the production of Phase II. Prior to the Designation Order the AER had determined it did not require an additional assessment over and above that conducted and approved in 2014 for Phase I. The Agency considered its impact negligible in relation to Phase II, and recommended against the Designation Order.
[13] I deliberately refer to the limited Underground Test Mine using the word “limited”. The Agency concluded the difference between Phase II without the limited Underground Test Mine, and Phase II with it was “limited” and “negligible”. The Agency found that: “the incremental impacts of the [the Underground Test Mine] would be negligible in comparison with to those of Phase II given that there is almost no new land disturbance…” (Agency Memorandum to Minister, Certified Tribunal Record [CTR] page 5). To emphasize, the Minister had determined Phase II alone did not warrant designation in December 2019.
[14] All three mines are located entirely within Treaty 6 lands. They are also entirely within Ermineskin’s Traditional Territory. Ermineskin is the third nearest reserve to the Project. Significantly, Stoney Nakoda Nations, one of the groups that requested a Designation Order, is located much further away from the mines than Ermineskin. In addition, some 161 Ermineskin Citizens live at the Mountain Cree/Smallboy Camp, located only 55 km from the mines.
[15] At the time of the Designation Order in July 2020, Phase II was in the process of being assessed by the AER. Ermineskin and other First Nations were involved in that assessment, as were others including provincial and federal departments and agencies.
C. Impact of delays has already and will delay, lessen, and may eliminate Ermineskin’s economic interest in the developments as negotiated under the 2019 IBA
[16] The Designation Order of July 2020, which is subject to this judicial review, had several immediate effects on the progress of Phase II and the limited Underground Test Mine. First, by operation of the IAA the Designation Order brought an immediate statutory halt to all work on both. Otherwise, the intended start dates were 2020 for the limited Underground Test Mine and 2022 for Phase II.
[17] In addition to delays from the date of the Designation Order to date (amounting to almost a year), if Phase II and the limited Underground Test Mine become subject to full federal impact assessments, the undisputed evidence is they could be delayed by four and a half more years or they could be lost entirely. The Minister correctly notes a designation order does not mean an impact assessment will be conducted and that no decision has yet to be made in that regard. However, the Minister does not specifically dispute all work is on hold.
[18] The Designation Order has already delayed, could delay further and may entirely end the valuable economic, community and social benefits accruing to Ermineskin under the 2019 IBA.
D. About face from December 2019 to July 2020
[19] It is important to note the Designation Order constitutes a complete about face by the Minister from the Minister’s decision seven months previously. In December 2019, the Minister went through a fairly extensive designation review process and decided not to designate Phase II. This process was initiated by requests from certain parties including the Keepers of the Water, Keepers of the Athabasca Watershed Society and the West Athabasca Watershed Bioregional Society. The Agency assisted the Minister in considering the designation request and sought input and assistance from 31 Indigenous groups, and others including federal and provincial agencies.
[20] The Minister agrees Ermineskin was notified of the 2019 designation process and invited to comment. Four Indigenous groups responded and indicated Phase II would adversely affect the exercise of their rights.
[21] It is also undisputed that Coalspur specifically notified the Agency on September 10, 2019 it was “consulting and engaging with” First Nations – including Ermineskin. At that time, Ermineskin’s 2013 IBA with Coalspur had been in place for six years and the 2019 IBA between Coalspur and Ermineskin would be signed a month later in October 2019.
[22] The Agency recommended the Minister not designate Phase II because any potential adverse effects to areas of federal jurisdiction would be comprehensively managed through processes provided by existing federal and provincial regulatory requirements. This was the same process followed leading to provincial approval of Phase 1 in 2014. For example, Fisheries and Oceans Canada would be responsible for conducting consultation with potentially affected Indigenous groups in relation to any authorizations applied for under the Fisheries Act, RSC 1985, c F-14 affecting water quality and fish habitat. At the provincial level, the AER’s terms of reference for Phase II already required consideration of the rights of Indigenous peoples, and required Coalspur to “describe benefits of the Project including to Indigenous communities and constraints to development including Indigenous traditional land and water use; and include an Indigenous receptor type in the public health assessment.”
[23] On December 20, 2019, the Minister determined Phase II did not warrant designation.
E. Consultation and duty to consult – Ermineskin not consulted – Crown alleges no duty to consult
[24] In contrast, while Ermineskin was given notice and the opportunity to provide submissions to the Agency and Minister in the December 2019 decision not to designate, Ermineskin was not given notice of nor was it consulted in any way during the process leading to the Designation Order in July 2020.
[25] In fact, in terms of Indigenous and First Nation issues, the 2020 designation process was one-sided. The Agency and Minister decided to and heard only from Indigenous and First Nations seeking the impugned Designation Order.
[26] It is fair to say Ermineskin was frozen out of the process leading to the Designation Order. The Minister agrees neither he nor the Agency consulted with Ermineskin.
[27] This application concerns the duty to consult. It is noteworthy the record contains no evidence either the Agency or the Minister considered whether the Crown’s duty to consult was even triggered. Nor is there any evidence the Minister or Agency considered whether the duty to consult was fulfilled.
[28] Simply put there was no consultation in this case. In fact, the Minister’s position is that he had no duty to consult with or to accommodate Ermineskin (paragraph 3, Respondent Minister’s Memorandum). However, as will be seen, I am unable to accept the Minister’s submission.
F. Agency opposes and advised against designation in 2019 and again in 2020
[29] The Agency in both its 2019 report and 2019 recommendation to the Minister recommended against designating Phase II. The Minister accepted the Agency’s recommendation in December 2019.
[30] In 2019, the Minister determined designation was not warranted because the existing provincial regulatory processes would comprehensively consider and address any adverse effects within federal jurisdiction including any adverse impacts to Aboriginal rights.
[31] In 2020, the Agency again recommended against designating Phase II and the limited Underground Test Mine. The Agency pointedly advised: “[t]he proponent has indicated that the [limited Underground Test Mine] is distinct and not dependent on the Phase II expansion moving forward. Therefore, they would likely argue that considering the two projects together could be seen as being unreasonable or arbitrary.” Notwithstanding, the Minister proceeded to unilaterally designate, despite clear advice from the Agency established by the IAA to advise Ministers in such matters.
G. The 2020 designation process
[32] The second designation process was initiated in 2020 by letters from two other First Nation communities: Louis Bull Tribe and Stoney Nakoda Nations. Letters supporting a reversal were also received from Keepers of the Water Council, Keepers of the Athabasca Watershed Society and The West Athabasca Watershed Bioregional Society [collectively, the Requesting Groups] in and around May 1, 2020. They argued Coalspur’s application for AER approval of the limited Underground Test Mine constituted a change in circumstances and asked that Phase II and the limited Underground Test Mine be considered together and that both be designated.
[33] In connection with the earlier designation consideration, on September 10, 2019, Coalspur had advised the Agency of its consultation with Indigenous groups which specifically included consulting and engaging with Ermineskin, including its remote community of Mountain Cree/Smallboy Camp where some 161 of its Citizens lived, located some 55 km from Phase II:
Coalspur has been directed to engage with five First Nation communities, four of which we currently have working agreements with and meet regularly. In addition, Coalspur notes that it has agreements with two additional First Nation groups who we have not been directed to engage with, with whom we meet regularly. Coalspur received an information request from a Metis Settlement and has since responded to their information request and met on two occasions.
The communities Coalspur is consulting and engaging with are: Ermineskin Cree Nation, including their remote community of Mountain Cree, Whitefish Lake First Nation, O’Chiese First Nation and the Aseniwuche Winewak Nation. ….
[Emphasis added]
[34] Despite this recently acquired and in my view highly relevant information known to the Agency, for reasons not in the record, the Agency and Minister decided not to notify or seek any input from Ermineskin or for that matter, from any additional Indigenous groups. In addition, not only did the Requesting Groups initiate the request for reconsideration, they were given the opportunity to reply to Coalspur’s responding submissions.
[35] In contrast, the Agency and Minister excluded Ermineskin from the process leading to the Designation Order. I find as a fact Ermineskin was not given an opportunity to have any input and was unable to comment on the submissions of the Requesting Groups or Coalspur’s response.
[36] While it is not contested by the Respondent Minister, I also base my findings that Ermineskin was excluded, and that the Agency was aware of potential adverse impact on Ermineskin’s Aboriginal and Treaty rights, on the informative and uncontested affidavit evidence of Ermineskin’s Carol Wildcat, its Consultation Director [Wildcat Affidavit I]:
Ermineskin not notified of second request and decision to designate
27. In mid-August 2020, I was advised by an employee of Coalspur that the Minister issued an order designating the Underground Test Mine and Phase II pursuant to his discretion under the Impact Assessment Act (the “Designation Order”). A draft of the Designation Order is found at page 275 of the Certified Record, and a copy of Designation Order is enclosed as Exhibit H to the Austen Affidavit.
28. Prior to that date, I was not aware that a new request had been made to designate the Underground Test Mine or to reconsider the decision to designate Phase II. As far as I am aware, neither the Agency nor the Minister notified, provided information to, sought input from, or consulted Ermineskin in respect of the Designation Order.
29. I have reviewed Ermineskin's records to confirm this.
30. The Chief of Ermineskin or I typically receive referrals or notification of any statutory decisions to be taken by federal government departments which may have adverse impacts on Ermineskin Aboriginal and Treaty rights. The typical process is that referrals and notifications are emailed directly to the Chief or me (“Referral Email”). If a Referral Email is sent to the Chief, s/he forwards the Referral Email to me to manage the consultation process. The Referral Email typically contains a formal cover letter outlining the referral details as well as a copy of the relevant materials submitted by the project proponent, government agencies, and/or other relevant third parties.
31. In some cases, federal government departments will send a duplicate of the Referral Email by mail. Any mail received by Ermineskin is sorted by our mail clerk, and any mail related to consultation is provided to me. Any mail which is addressed to the Chief, but related to consultation, is also provided to me.
32. I have reviewed my emails and records from May 1, 2020 to July 30, 2020 for any federal government referrals related to the designation of the Vista Coal Mine. No referrals were received regarding Phase I, Phase II, or the Underground Test Mine during this period.
33. I have also consulted former Chief Craig Makinaw (who was Chief of Ermineskin from October 2017 to October 2020) and my team, Danny Bellerose (Consultation Liaison) and Janice Ermineskin (Consultation Assistant), and to determine if any federal government referrals related to the Vista Coal Mine were received by Ermineskin via email or mail from May 1, 2020 to July 30, 2020 which were not in my records. I am advised by Chief Makinaw, Mr. Bellerose, and Ms. Ermineskin, and do verily believe, that no referrals were received by Ermineskin regarding Phase 1, Phase II, or the Underground Test Mine during this period.
Agency was aware of the potential impact to Aboriginal and Treaty Rights
34. 1 have reviewed the materials related to the Designation Order made available in the Agency's online registry, at: https://iaac-aeic.gc.ca/050/evaluations/proj/80731 and attached to the Austen Affidavit as Exhibits C, D, E, F, and G.
35. From these materials, I am aware that the Agency made a request for federal expert advice from various federal agencies regarding the “potential impacts to Aboriginal and Treaty Rights” posed by the Underground Test Mine. I am also aware that Coalspur notified the Agency that Ermineskin is one of the Indigenous communities whom Coalspur had been actively engaging with in respect of Phase II.
[37] No party to this proceeding contradicted deponent Ms. Wildcat’s evidence as set out above, nor for that matter, any aspect of her evidence. She was not cross-examined. Nor was Rule 229 of the Federal Courts Rules, SOR/98-106 concerning production of documents engaged by any party. I have considered and accept the accuracy of her testimony and facts deposed, finding on a balance of probabilities that her evidence is truthful.
H. Constitutional validity of IAA not before this Court
[38] This Court is not asked to rule on the constitutional validity of the IAA because that issue is before the Alberta Court of Appeal. I therefore make no determination in that regard.
I. Recent matters arising after the Designation Order
[39] Two matters arose after the Designation Order.
[40] First, on May 17, 2021, two days before the hearings commenced in these matters, counsel for Coalspur brought to the Court’s attention an Order of the Court of Queen’s Bench of Alberta dated May 6, 2021 under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 [CCAA Order] concerning Coalspur. Paragraph 13 of the CCAA Order provides:
NO PROCEEDINGS AGAINST THE APPLICANT OR THE PROPERTY
13. Until and including July 23, 2021, or such later date as this Court may order (the “Stay Period”), no proceeding or enforcement process in any court (each, a “Proceeding”) shall be commenced or continued against or in respect of the Applicant or the Monitor, or affecting the Business or the Property, except with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicant or affecting the Business or the Property are hereby stayed and suspended pending further order of this Court.
[41] Coalspur is a party to this proceeding, as are the Attorney General of Canada for the Minister and Ermineskin. No party moved for a stay or an adjournment of the hearing of the applications for judicial review brought by Ermineskin or Coalspur. No affidavit or motion was filed seeking any form of order from this Court related to the CCAA Order.
[42] There was a request for a case management conference call to review the CCAA Order and its repercussions, which I held at the outset of the two-day hearing. The Court canvassed counsel for their positions. In effect, the parties advised that the CCAA Order did not impact proceedings in this case or in T-1008-20, except with respect to the possible financial implications of any cost order this Court might make.
[43] Second, on June 11, 2021, well after close of argument in these matters, two media statements were issued by the Government of Canada during its participation in the G7 meetings held in the United Kingdom. Each addressed clarification of the policies of the Government of Canada in terms of thermal coal mines such as those addressed by the Designation Order.
[44] A media release titled Statement by the Government of Canada on thermal coal mining states in part:
The global phase-out of emissions from coal power is the most important initial step towards achieving Paris Agreement goals. To provide greater certainty to investors, the mining sector and Canadians generally, the Government of Canada is today clarifying its position on new thermal coal mines and expansion projects in this country.
The continued mining and use of coal for energy production anywhere in the world is not environmentally sustainable and does not align with the Government of Canada’s commitments, both domestically and internationally, with respect to combatting climate change. Accordingly, the Government of Canada considers that any new thermal coal mining projects, or expansions of existing thermal coal mines in Canada, are likely to cause unacceptable environmental effects. This position will inform federal decision making on thermal coal mining projects.
Under the Impact Assessment Act, the Minister of Environment and Climate Change or Governor in Council must determine that the effects within federal jurisdiction likely to be caused by a project are in the public interest, if a project is to move forward. This decision is informed by whether the project contributes to sustainability, whether it hinders or contributes to Canada’s ability to meet its commitments in respect of climate change, and other relevant matters.
This Policy Statement on thermal coal mining will be an important consideration in the Minister’s or Governor in Council’s determination under the Act, as to whether the effects within federal jurisdiction caused by proposed new thermal coal mines or expansions of existing coal mines are in the public interest of Canadians.
Similarly, this policy statement will inform the Minister’s use of the discretionary authority under section 9 of the Act to designate any proposed new thermal coal project or expansion that is not listed in the Physical Activities Regulations, and the Minister’s opinion, under section 17 of the Act, about whether a designated project would cause unacceptable environmental effects within federal jurisdiction before the commencement of an assessment.
[Emphasis added]
[45] A media statement entitled Government of Canada releases Policy Statement on future thermal coal mining projects and project expansions states in part:
The best available science and economic analysis calls for countries around the world to address the global challenge that is climate change, and to fully seize the economic opportunities that it presents. For the good of the planet’s health, the world is moving off thermal coal for energy production, and Canada is leading the way.
Burning thermal coal, the fuel that powered an industrial revolution in a previous century, is the single largest contributor to climate change and a major source of toxic pollution that harms human health. Since co-founding the Powering Past Coal Alliance in 2017 with the United Kingdom and introducing regulations to accelerate the phase-out of conventional coal-fired electricity, Canada has helped set the pace for domestic and international action in addressing this source of greenhouse gas emissions. Last month Canada, alongside other G7 countries, stressed the need to immediately end international investments in thermal coal power generation projects that emit carbon pollution.
As G7 world leaders gather in the U.K. to combat global challenges, including climate change, and as the next step in Canada’s commitment to addressing harmful GHG emissions from coal, the Honorable Jonathan Wilkinson, Minister of Environment and Climate Change, today announced the Government of Canada’s public policy statement on new thermal coal mining or expansion projects. The statement indicates that the Government considers that these projects are likely to cause unacceptable environmental effects within federal jurisdiction and are not aligned with Canada’s domestic and international climate change commitments. Accordingly, this position will inform federal decision making on thermal coal mining projects.
Today’s policy announcement provides clarity and regulatory certainty for industry, investors and Canadians. It represents another critical step in our shared path to a cleaner and more prosperous future, and places Canada among the first G7 countries to adopt such a policy.
In parallel to today’s announcement, Minister Wilkinson informed Coalspur Mines Ltd. that the policy announced today applies to the consideration of its proposed thermal coal mine expansions at the Vista Coal Mine near Hinton, Alberta.
Canada’s abundant natural resources give this country a competitive advantage we have always used to support jobs and prosperity. In the global race to carbon-neutral economies by 2050, Canada continues to build on its long-term competitive advantage by focusing on environmental sustainability and clean growth while supporting workers and communities.
That is why, for example, Canada’s strengthened climate plan—A Healthy Environment and a Healthy Economy—committed $964 million over four years to advance smart renewable energy and grid modernization projects to enable the clean grid and jobs of the future. And that is why, to mitigate the impacts of the domestic phase out of coal-fired electricity, Budgets 2018 and 2019 provided $185 million for skills development, economic diversification, and infrastructure to support coal workers and communities.
The evidence is clear: the continued mining and use of thermal coal for energy production in the world runs counter to what is needed to effectively combat climate change and seize the economic opportunities that it presents. It is in this context that the Government has announced this policy today and will continue to work with Canadians to deliver strong climate action.
[Emphasis added]
[46] Given the context of these announcements and the specific reference to Coalspur’s Phase II and limited Underground Test Mine, I sent them to counsel, directing the Court “would like to hear from counsel as to whether these have any impact on my consideration and writing of the judgment in these two judicial reviews.”
[47] The parties were unanimous in their responses which were to the effect the two announcements had or should have no impact on my consideration of or writing judgments in these matters.
J. Statutory scheme for designation
[48] All jurisdictions in Canada – including both Alberta and Canada – employ environmental impact assessment regimes to evaluate the potential for physical activities to cause significant adverse environmental effects, and to reconcile a “proponent’s development desires with environmental protection and preservation” (Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 at para 71).
[49] In 2019, Parliament enacted the IAA, which replaced the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 [CEAA, 2012].
[50] The IAA imposes federal decision-making and the possibility of a requirement for federal impact assessments on “designated projects” regardless of whether they might also be subject to provincial environmental assessment.
[51] Designation pursuant to the IAA applies to physical activities rather than projects. Physical activities do not come within the scope of the IAA unless they, on their own or in conjunction with other physical activities, meet the definition of a designated project set out in the IAA.
[52] A designated project is defined in the IAA:
designated project means one or more physical activities that
(a) are carried out in Canada or on federal lands; and
(b) are designated by regulations made under paragraph 109(b) or designated in an order made by the Minister under subsection 9(1).
It includes any physical activity that is incidental to those physical activities, but it does not include a physical activity designated by regulations made under paragraph 112(1)(a.2).
[Emphasis added]
[53] As a result, there are two ways a physical activity may fall within the definition of a designated project under the IAA.
[54] The first is where a physical activity meets a threshold for either its area or its volume of coal production; if it does, it is automatically designated by operation of law. This is set out in subsection 19(a) of the schedule of the Physical Activities Regulations, SOR/2019-285 [Regulations]:
19 The expansion of an existing mine, mill, quarry or sand or gravel pit in one of the following circumstances:
(a) in the case of an existing coal mine, if the expansion would result in an increase in the area of mining operations of 50% or more and the total coal production capacity would be 5 000 t/day or more after the expansion.
[Emphasis added]
[55] The second is when the Minister by Order designates an activity under subsection 9(1) of the IAA; in which case the Minister must provide reasons per subsection 9(4):
Minister’s power to designate
Pouvoir du ministre de désigner
9 (1) The Minister may, on request or on his or her own initiative, by order, designate a physical activity that is not prescribed by regulations made under paragraph 109(b) if, in his or her opinion, either the carrying out of that physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation.
9 (1) Le ministre peut par arrêté, sur demande ou de sa propre initiative, désigner toute activité concrète qui n’est pas désignée par règlement pris en vertu de l’alinéa 109b), s’il estime que l’exercice de l’activité peut entraîner des effets relevant d’un domaine de compétence fédérale qui sont négatifs ou des effets directs ou accessoires négatifs, ou que les préoccupations du public concernant ces effets le justifient.
…
…
Minister’s response — time limit
Réponse du ministre — délai
(4) The Minister must respond, with reasons, to a request referred to in subsection (1) within 90 days after the day on which it is received. The Minister must ensure that his or her response is posted on the Internet site.
(4) Le ministre répond, motifs à l’appui, à la demande visée au paragraphe (1) dans les quatre-vingt-dix jours suivant sa réception et, dans un tel cas, il veille à ce que la réponse soit affichée sur le site Internet.
[Emphasis added]
[Je souligne]
[56] Phase II could only be designated by Order of the Minister under subsection 9(1) of the IAA.
[57] Phase II did not meet the threshold for statutory designation under subsection 19(a) of the Regulations because – while it exceeded the production threshold – it did not meet the minimum area threshold.
K. Agency and Minister consideration of impact on Indigenous peoples required by Operational Guide and the IAA
[58] The IAA’s designation process may be initiated at the request of third parties and is designed to assess a wide range of impacts. This includes impacts on Indigenous peoples such as Ermineskin according to the Agency’s “Operational Guide: Designating a Project under the Impact Assessment Act,” sanctioned by the Government of Canada and available on Canada’s website at: https://www.canada.ca/en/impact-assessment-agency/services/policy-guidance/designating-project-impact-assessment-act.html [Operational Guide].
[59] The purpose of the Operational Guide is set out on its introductory first page:
Purpose
This document describes the process for considering whether to designate a project not identified in the Physical Activities Regulations, also known as the Project List, under the Impact Assessment Act (the Act).
[Emphasis in original]
[60] The Operational Guide makes several references to the rights and interests of Indigenous peoples. It declares the Agency will consider, among other things, whether it requires further information from the requester(s), or from federal departments, other jurisdictions and “potentially affected Indigenous groups” to determine whether the physical activity has the potential to cause adverse effects on “the environment that could affect the Indigenous peoples of Canada” or “the health, social or economic conditions of the Indigenous peoples of Canada,” and the potential of the physical activity to cause “adverse impacts on the section 35 rights” of Indigenous peoples.
[61] The IAA itself creates statutory obligations on the Agency and Minister to consider the interests of Indigenous peoples in several provisions including paragraphs 6(1)(f) and 6(1)(g) and subsection 6(2) setting out the Purposes of the IAA itself:
Purposes
Objet
6 (1) The purposes of this Act are
6 (1) La présente loi a pour objet:
…
…
(f) to promote communication and cooperation with Indigenous peoples of Canada with respect to impact assessments;
f) de promouvoir la communication et la collaboration avec les peuples autochtones du Canada en ce qui touche les évaluations d’impact;
(g) to ensure respect for the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, in the course of impact assessments and decision-making under this Act;
g) de veiller au respect des droits des peuples autochtones du Canada reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982, dans le cadre des évaluations d’impact et de la prise de décisions sous le régime de la présente loi;
…
…
Mandate
Mission
(2) The Government of Canada, the Minister, the Agency and federal authorities, in the administration of this Act, must exercise their powers in a manner that fosters sustainability, respects the Government’s commitments with respect to the rights of the Indigenous peoples of Canada and applies the precautionary principle.
(2) Pour l’application de la présente loi, le gouvernement du Canada, le ministre, l’Agence et les autorités fédérales doivent exercer leurs pouvoirs de manière à favoriser la durabilité, à respecter les engagements du gouvernement à l’égard des droits des peuples autochtones du Canada et à appliquer le principe de précaution.
[Emphasis added]
[Je souligne]
[62] In the normal course, the Agency receives a request, seeks input from those affected including “potentially affected Indigenous groups” and various government departments with relevant expertise and or jurisdiction, and others. It may seek further input from those it has already heard from. The Agency conducts an analysis and prepares both a written report and written recommendations for the Minister.
[63] In this connection, and according to the Operational Guide, the Agency’s recommendation to the Minister will “consider the potential impacts of the project on the rights of the Indigenous peoples of Canada as recognized and affirmed by section 35 of the Constitution Act, 1982” and will be “informed by science, Indigenous and community knowledge, input from the proponent, and consultations with other jurisdicti