Ka’a’Gee Tu First Nation v. Canada (Attorney General)

Ka’a’Gee Tu First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-07-20
Neutral citation
2007 FC 763
File numbers
T-1379-05
Decision Content
Date: 20070720
Docket: T-1379-05
Citation: 2007 FC 763
Ottawa, Ontario, July 20, 2007
PRESENT: The Honourable Mr. Justice Blanchard
PRESENT:
CHIEF LLOYD CHICOT suing on his own behalf
and on behalf of all Members of the KA’A’GEE Tu First
Nation and the KA’A’GEE TU FIRST NATION
Applicants
and
THE ATTORNEY GENERAL OF CANADA
and PARAMOUNT RESOURCES LTD.
Respondents
REASONS FOR ORDER AND ORDER
INDEX
Paragraph
1. Introduction 1
2. Background Facts
- The Parties 2
- The Geography 5
- The Project 9
- Treaties 8 and 11 12
- Deh Che Process 15
- Regulatory Approval Process 18
- Funding 31
- The First Two Phases of the Cameron Hills Development 37
- The Extension Project 56
- Consult to Modify Process for the Extension Project 76
3. Issues 89
4. Standard of Review 90
5. The Law 94
6. Analysis 100
7. Other Issues 125
8. Conclusion 131
9. Remedy 132
Page
APPENDIX A: sections 3, 60.1, 63, 111, 114, 115, 115.1, 125, 58
128, 130, 131, 131.1, 135, of the Mackenzie Valley Resource
Management Act and
Section 5 of the Canada Oil and Gas Operations Act
APPENDIX B: Recommended Mitigating Measures R-13, R-15, R-16 and R-17 72
APPENDIX C: Modified Recommendations R-13, R-15, R-16 and R-17 74
APPENDIX D: Summary of Recommendations and Suggestions 76
1. Introduction
[1] This application for judicial review challenges the decision to approve a recommendation of a project involving oil and gas development in the Northwest Territories. The project, known as the Extension Project, proposed by Paramount Resources Ltd. (Paramount) is located in the Cameron Hills, over which the Ka’a’Gee Tu First Nation (KTFN) claims Aboriginal rights and treaty rights. The KTFN states that the project negatively impacts their established treaty rights and their asserted Aboriginal rights and consequently argues that the Crown had a duty to consult and accommodate before approving the project. In this application the KTFN claims that the Crown failed to meet its duty to consult and accommodate.
2. Background Facts
- The Parties
[2] The KTFN, a community of the Deh Cho First Nations (DCFN) who descend from the South Slavey people of the Dene Nation, and its Chief Lloyd Chicot are Applicants in this proceeding. On November 1, 1990, a sub-Band of the Fort Providence Band consisting of 36 members residing at Kakisa Lake formed the Kakisa Lake Band. In 1996, the Kakisa Lake Band Council resolved to be known as the Ka’a’Gee Tu First Nation. Currently there are approximately 55 people living at the Kakisa settlement on the east side of Kakisa Lake. There are now about 62 people on the KTFN Band list.
[3] Paramount, a Respondent in this application, is a Calgary based energy company that explores, develops, processes, transports and markets oil and gas. Paramount has explored and developed oil and gas reserves in the Cameron Hills area since about 1979, after it acquired exploration licenses for approximately 80,800 acres in that area.
[4] The “Responsible Ministers” pursuant to section 111 of the Mackenzie Valley Resource Management Act, 1998 c. 25 (the Act) are the Minister of Indian and Northern Affairs Canada (INAC), the Minister of Fisheries and Oceans, the Minister of the Environment Canada and Natural Resources Government of the Northwest Territories.
- The Geography
[5] Cameron Hills is a remote area in the Northwest Territories just north of the Alberta border, consisting of a high plateau, which is south of Tathlina Lake and a collection of surrounding lower laying hills to the southwest and west of Tathlina Lake. Paramount’s development project is located on the high plateau. The plateau is inaccessible from the north, northwest and southeast sides, and is accessible only by a winter road when the ground is frozen, via the southwest side where the terrain is not as steep. The Cameron River flows in a northwesterly direction off the plateau and eventually into Tathlina Lake which is located about 10 kilometers north of the plateau. Kakisa Lake lies approximately 70 kilometers north of the Cameron Hills plateau, and Kakisa settlement is situated on the east side of that lake.
[6] The Applicants claim a deep spiritual and cultural connection, as well as an economic reliance on the Cameron Hills. In the words of Chief Chicot: “our culture, economy, spirituality and our way of life are intimately connected to our land, which supports and sustains us. Our land is the home of the Ka’a’Gee Tu people who are alive today as well as the home of our ancestors and the home for all future generations of Ka’a’Gee Tu”. Prior to the arrival of settlers to the area, the KTFN have harvested animals, fish, trees and water from the area, and many families continue to hunt and trap in the Cameron Hills area.
[7] The Applicants claim stewardship over the Cameron Hills area. However, other Aboriginal groups, including the Deh Cho members of the Deh Gah Got’ie, the Katlodeeche, the West Point and the Trout Lake First Nations; the Alberta First Nation Dene Tha’; the Fort Providence First Nation and the NWT Métis also claim Cameron Hills as part of their traditional territory. There is no consensus amongst these Aboriginal groups regarding this stewardship.
[8] There is no dispute amongst the parties in this application that the lands subject to Paramount’s proposed development are also the lands over which the Applicants claim treaty rights and assert Aboriginal rights. There is no agreement, however, concerning the seriousness of the impact of Paramount’s proposed project on these rights. While the Respondents agree that the Crown owed a duty to consult to the Applicants, there is no agreement on the scope or content of that duty. The Respondents take the position that the Crown discharged its duty to consult in the circumstances.
- The Project
[9] Oil and gas development in the Cameron Hills proceeded in phases. Exploration for oil and gas began in the early 1960s. Paramount obtained long term mineral rights in the early 1980s and by 2004 had been granted several exploration, discovery and production licenses. Paramount’s development in the Cameron Hills proceeded in three phases: the Drilling Project (August 2000), the Gathering and Pipeline System Project (April 2001), and the Extension Project (August 2003). These three projects are collectively referred to as the Cameron Hills Development. The development proposed at the outset consisted of setting up a trans-border pipeline, central battery and gathering facilities. Once the construction of the Gathering and Pipeline System had been completed in August 2002, Paramount sought land use permits and water licenses to access new well sites and tie-in the new wells to the newly constructed gathering system. This aspect of the development came to be known as the Extension Project. It signalled the beginning of Paramount’s production work in the Cameron Hills. The approval of the Extension Project is the decision being reviewed in this application.
[10] The Extension Project is significant in scope. Over time, the Project will include: drilling, testing and tie-in of up to 50 additional wells over a period of 10 years; oil and gas production over a 15 to 20 year period; excavation of 733 km of seismic lines; construction of temporary camps servicing up to 200 workers; the withdrawal of water from lakes; and the disposal of drill waste.
[11] Before turning to the issues in this application, which essentially concern the Crown’s duty to consult, it is necessary to understand the context in which the impugned decision was made. To that end, I propose to review background information in respect to the applicable treaties, the Deh Cho comprehensive land claims process, the regulatory approval process under the Act and how this process was applied in the circumstances of this case.
- Treaties 8 and 11
[12] The Deh Cho First Nations fall within Treaty 8 and 11. Treaty 8 was signed on June 21, 1899, and Treaty 11 was signed on June 27, 1921 with an adherence agreement signed on July 17, 1922. At the time of the signing of Treaty 11, the KTFN was part of the community of Deh Cho First Nations and are consequently bound by that Treaty. Both Treaties contain cession of land and surrender of rights provisions. The Treaties also guarantee to its Aboriginal signatories the right to pursue “their usual vocations of hunting, trapping and fishing throughout the tract surrendered”. Both Treaties also provided for the creation of reserve lands. However, in the Northwest Territories (the NWT), no reserves have been set aside pursuant to Treaty 11, the treaty at issue in this application.
[13] The Crown in right of Canada and the Deh Cho First Nations disagree on whether Treaty 11 extinguished Aboriginal title. The Crown construes Treaty 11 as an extinguishment treaty while the Deh Cho and the Applicants understand Treaty 11 to be a peace and friendship treaty, whereby Aboriginal title was not surrendered. The Applicants contend that the Deh Cho did not allow reserve lands to be set aside pursuant to the Treaties because they did not want to submit to the Crown’s interpretation of the Treaties.
[14] While Aboriginal title in respect to the land under the treaties is disputed there is no dispute as to the existence of the Applicants’ treaty rights to hunt, fish and trap in the Cameron Hills area.
- Deh Cho Process
[15] In 1976 and 1977, on the basis that the land provisions of the Treaties had not been implemented, Canada accepted comprehensive land claims from the Dene and Métis of the Mackenzie Valley in the NWT. Ultimately, agreements were reached and implemented in respect of the Gwich’in, the Sahtu Dene and the Métis, all under Treaty 11, following which Canada passed the Act essentially to give effect to these agreements. The Act was amended in August 2005 to reflect the requirements of the land claims and self-government agreement between Canada and the Tlicho.
[16] The relevant outstanding comprehensive land claim relating to Treaty 11 is with respect to what is known as the Deh Cho region, which includes the Cameron Hills area. This claim was accepted for negotiation by the Crown in right of Canada in 1998. The negotiation process became known as the “Deh Cho Process”. The parties to the negotiations are the Deh Cho First Nations, including the Applicants, the Government of Canada and the Government of the Northwest Territories. The process was to provide a forum for respectful interaction of Aboriginal and Crown titles and jurisdictions with the view of negotiating a final agreement.
[17] Although negotiations are ongoing in the Deh Cho Process, various agreements have been reached along the way, including the Interim Measures Agreement of 2003, which contemplates collaborative land use planning for the Deh Cho territory in accordance with Deh Cho principles of respect for land. This agreement establishes the Deh Cho Land Use Planning Committee which provides for the conservation, development and utilization of the land, waters and other resources. Under this agreement, Canada and the Deh Cho First Nations have identified and negotiated the withdrawal of certain lands from disposal and mineral staking. Criteria agreed upon in identifying such lands include: lands used for the harvest of food and medicines; lands that are culturally and spiritually significant; lands which are ecologically sensitive as well as watersheds. Withdrawn lands remain subject to the continuing exercise of existing rights and interests.
- Regulatory Approval Process
[18] Oil and gas development in the Mackenzie Valley is complex involving several pieces of legislation and engaging several administrative bodies. The text of pertinent statutory provisions is attached to these reasons as Appendix A.
[19] Construction and operation of a pipeline and gathering system occurs under the authority of the National Energy Board (the NEB), pursuant to the Canada Oil and Gas Operations Act, R.S., 1985, c. O-7, and the Canadian Petroleum Resources Act, R.S., 1985, c. 36 (2nd Supp.). Following the Gwich’in and Métis Comprehensive Land Claim Agreements, the Mackenzie Valley Resource Management Act was enacted in 1998. It provides for two regulatory boards: the Mackenzie Valley Land and Water Board (the Land and Water Board) and the Mackenzie Valley Environmental Impact Review Board (the Review Board). These Boards are established pursuant to the Act as institutions of public government within an integrated and coordinated system of land and water management in the Mackenzie Valley.
[20] The Land and Water Board and the Review Board are established for the purpose of regulating all land and water uses, including deposits of waste, in the Mackenzie Valley. Bill C-6, which preceded the legislation, took five years to complete, during which time there was considerable consultation with all affected groups, including affected First Nations who were funded to review the proposed Bill.
[21] Under the Act, the Land and Water Board is responsible for issuing land use permits and water licences in the unsettled land claim areas within the Mackenzie Valley. A developer must apply to the Land and Water Board for a land use permit and water licence where the proposed activity is to be carried out in the Mackenzie Valley. Section 60.1 of the Act specifically requires that the Land and Water Board gives consideration to “the well-being and way of life of the Aboriginal peoples of Canada” in making its decisions. The section provides as follows:
60.1 In exercising its powers, a board shall consider
(a) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley; and
(b) any traditional knowledge and scientific information that is made available to it.
60.1 Dans l’exercice de ses pouvoirs, l’office tient compte, d’une part, de l’importance de préserver les ressources pour le bien-être et le mode de vie des peuples autochtones du Canada visés par l’article 35 de la Loi constitutionnelle de 1982 et qui utilisent les ressources d’une région de la vallée du Mackenzie et, d’autre part, des connaissances traditionnelles et des renseignements scientifiques mis à sa disposition.
[22] Pursuant to subsection 63(2) of the Act, the Land and Water Board is required to notify affected communities and First Nations upon receipt of an application for a permit or license.
[23] Section 114 of the Act sets out the purpose of Part 5 of the Act, which is to establish a process comprising a preliminary screening, an environmental assessment and an environmental impact review. The Review Board is established as the main instrument in the Mackenzie Valley for the environmental assessment and the environmental impact review and is mandated with ensuring that the concerns of Aboriginal people and the general public are taken into account in the process.
[24] The guiding principles of Part 5, set out in section 115 of the Act, provide that the process shall have regard to the following: the protection of the environment from significant adverse effects of proposed developments; the protection of the social, cultural and economic well-being of the residents and communities in the Mackenzie Valley; and, the importance of conservation to the well-being and way of life of the Aboriginal peoples. Section 115.1 states specifically that the Review Board shall consider any traditional knowledge that is made available to it in exercising its powers.
[25] Community consultation is integral to the processes undertaken by both the Land and Water Board and the Review Board. Section 3 of the Act governs how this consultation is to be carried out:
3. Wherever in this Act reference is made, in relation to any matter, to a power or duty to consult, that power or duty shall be exercised
(a) by providing, to the party to be consulted,
(i) notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter,
(ii) a reasonable period for the party to prepare those views, and
(iii) an opportunity to present those views to the party having the power or duty to consult; and
(b) by considering, fully and impartially, any views so presented.
3. Toute consultation effectuée sous le régime de la présente loi comprend l’envoi, à la partie à consulter, d’un avis suffisamment détaillé pour lui permettre de préparer ses arguments, l’octroi d’un délai suffisant pour ce faire et la possibilité de présenter à qui de droit ses vues sur la question; elle comprend enfin une étude approfondie et impartiale de ces vues.
[26] Both the Land and Water Board and the Review Board provide guidelines on how consultation is to be undertaken by developers when applications are made to the respective boards.
[27] The Act provides for a three stage review process: a preliminary screening, an environmental assessment and an environmental impact review. Developers must consult with affected parties before submitting an application, and the consultation should involve notice of the matter in sufficient detail, a reasonable period for the party consulted to prepare their views, and the opportunity to present those views to the developer. Once the Land and Water Board is satisfied pre-application community consultation has taken place, it performs the preliminary screening which involves determining whether the development might have a significant adverse impact on the environment. If development might have a significant adverse impact, then the Land and Water Board will refer the proposal to the Review Board for an environmental assessment under section 125 of the Act. Otherwise the application will proceed to the permitting phase.
[28] Once an environmental assessment has been triggered by a referral from the Land and Water Board, the Review Board determine the scope of the environmental assessment and request a more detailed description of the development. Next, issues are identified by the Review Board and Terms of Reference (TOR) for the environmental assessment are determined. A draft version of the TOR is circulated to all parties for comments. After the TOR is finalized, the developer proceeds to prepare the Developer’s Assessment Report (DAR). The DAR is circulated to all parties and undergoes a conformity check in which it is compared to the TOR. It then undergoes a Technical Review in which participants may present their views supported by facts and evidence in a forum that is open to the public. Questions arising from the Technical Review which require formal responses are issued by way of Information Requests (IRs), which may originate from any party, and are made accessible to everyone. The Review Board may order a hearing. Following the hearing, the Review Board will consider the DAR and the evidence and determine whether the development is likely to have significant adverse environmental impacts or be a cause of significant public concern. Under section 128, the Review Board may determine that no assessment need be performed, recommend that the approval of the proposal be made subject to the imposition of measures that the Review Board considers necessary to prevent an adverse impact, recommend the proposal be rejected without an environmental assessment, or, if the Review Board decides that the development is likely to cause significant public concern, order an environmental impact review. The decision of the Review Board is subject to section 130 of the Act which essentially places the ultimate decision in the hands of the Ministers.
[29] Pursuant to section 130 of the Act, after having considered the environmental assessment report, the Ministers may order an environmental impact review even if the Review Board determined such a review need not be conducted (paragraph 130(1)(a)). Where the Review Board recommends the approval of a proposal subject to the imposition of certain measures or the rejection of a proposal because of its adverse impact on the environment, the Ministers may:
(1) adopt the recommendation or refer it back to the Review Board for further consideration (subparagraph 130(1)(b)(ii)) or
(2) after consulting the Review Board, reject the recommendation and order an environmental impact review of the proposal or adopt the recommendation with modifications
This latter option is known as the “consult to modify” process. The parties that participate in the consult to modify process are the representatives of the Responsible Ministers and representatives of the Review Board. The Act imposes no obligation on the Ministers to involve others in the process including the parties to the Environmental Assessment or Environmental Impact Review.
[30] The third stage, the environmental impact review, consists of a review of the environmental assessment by a panel of three or more members appointed by the Review Board. The Panel is vested with the powers of a review board and the Act sets out a comprehensive process as to how the review is to be conducted. Pursuant to subsection 135(1) of the Act, after considering the report from the Review Panel, the Ministers may adopt the recommendations contained in the report with or without modifications, reject them or refer the proposal back to the Review Board.
- Funding
[31] The Applicants contend that throughout the Review Board process concerning the Cameron Hills development they participated in each environmental assessment process to the extent permitted by their limited resources.
[32] While the Applicants complain that their full and meaningful participation in the consultation process under the Act was compromised by lack of resources, the evidence indicates that funding was made available by the Crown to assist the Applicants.
[33] In fiscal year 2001-2002, the KTFN requested and received from INAC $40,000 to assist with costs associated with an Oral Traditional Knowledge Research Project. This resulted in the production of a documentary film, which is in evidence, entitled “Straight from the Heart”. The film documents Elders speaking to KTFN regarding traditional knowledge, which included gathering stories, legends and knowledge of the land. The cost of the project was $30,844 resulting in a $9,166 surplus.
[34] In fiscal year 2002-2003, the KTFN requested and received from INAC the sum of $40,000 to allow participation in land and resource management activities in the area. To this end an Oil and Gas Coordinator was hired to address environmental concerns and act as spokesperson for the KTFN. The Government of the Northwest Territories (GNWT) also provided $40,000 in funding for this purpose. A $6,476 surplus resulted from the $80,000 in grants for resource management activities provided in 2002-2003.
[35] In 2003-2004, the KTFN requested $40,000 and received $10,000 from INAC to continue funding the Oil and Gas Coordinator. The same funding was obtained in 2004-2005 for this purpose. Also, in 2004-2005, INAC provided $10,000 for the completion of a community protocol for the Cameron Hills Oil and Gas Project.
[36] In summary, from 2001 to 2005, INAC and the GNWT provided a total of $140,000 to the KTFN for their traditional knowledge project and for the services of the Oil and Gas Councillor. This represents $30,000 less than the amount the KTFN requested. Of the total amount received, the record indicates that the KTFN had a $15,642 surplus.
- The First Two Phases of the Cameron Hills Development
[37] Since 1992, Paramount obtained 14 production licenses (two issued in 1992, four in 2002, two in 2003 and six in 2004), and it holds 7 land use permits (LUP), 4 water licenses and 22 federal surface leases, all in the Cameron Hills. As mentioned, development proceeded in three phases: the Drilling Project, the Gathering and Pipeline Project, and the Extension Project.
[38] The Drilling Project involved 9 new wells and 7 existing wells in order to evaluate oil and gas reserves. The Gathering and Pipeline Project involved the construction of an extensive trans-boundary pipeline and gathering system to connect Paramount’s wells in the Cameron Hills to Alberta’s pipeline system. This also included more than 60 km of pipelines, well-site facilities for 11 existing and 9 new wells, temporary construction camps to house up to 200 workers, a permanent camp for 20 workers, an airstrip and vehicle access routes to well-sites.
[39] Applications for land use permit and water licences for the Drilling Project were made to the Land and Water Board on August 29, 2000. The project was referred to the Review Board for an environmental assessment on November 20, 2000, and the Review Board issued its environmental assessment report on October 16, 2001. The Review Board recommended that land use permits and water licenses be issued on condition that the mitigating measures contained in Paramount’s environmental report be respected. The Drilling Project was eventually allowed to proceed on this basis.
[40] The Applicants state that they were surprised to learn in 2001, when the Drilling Project was first before the Review Board, the full magnitude of Paramount’s plans for the Cameron Hills area. They claim that they were not aware that the Federal Crown had previously issued Paramount extensive licenses in the Cameron Hills. The Applicants argue that the KTFN were facing a major industrial development without any meaningful input into the issuance of the original discovery and exploration licenses granted to Paramount.
[41] Paramount initiated the Gathering and Pipeline System Project in April 2001 by applying to the Land and Water Board for land use permits and water licenses. The KTFN were involved in the preliminary screening and environmental review processes for the Gathering and Pipeline Project. Between June 22, 2000, and November 19, 2001, more than a dozen meetings were held and numerous phone calls were made with Paramount, discussing traditional knowledge, benefits of the project for the Kakisa community, concerns in respect to other Bands claiming stewardship over the Cameron Hills area as traditional territory, and mitigating measures for the environment. The KTFN’s participation included a helicopter flyover of the proposed project and a three day excursion to the territory around Tathlina Lake for the purpose of discussing traditional knowledge.
[42] The project was referred to the Review Board for environmental assessment and on December 3, 2001, the Review Board issued its report on the Environment Assessment.
[43] Paramount’s DAR prepared for the Gathering and Pipeline System Environmental Assessment concluded that the project would have no significant cumulative environmental impacts and was not expected to have an adverse effect on the pursuit of traditional activities. Both the KTFN and the GNWT disagreed. The Applicants questioned Paramount’s ability to draw conclusions regarding impacts of its project on the Applicants in the absence of a proper Traditional Land Use Study. In its submissions to the Review Board, the GNWT argued that Paramount had underestimated the impact of the project on the boreal caribou population. In its Environmental Assessment Report for the Gathering and Pipeline Project, the Review Board found that the Applicants were “very actively involved in traditional land use … most if not all residents participate in traditional land use in one manner or another”. The Review Board accepted the GNWT data that “…Kakisa families derive 50-60%, and possibly more, of their annual food basket requirements from the land.” Ultimately, the Review Board recommended that with the implementation of 21 mitigating measures, the project “… is not likely in its opinion to have any significant adverse impact on the environment or to be a cause of significant public concern”.
[44] Paramount expressed serious concern in respect to measures 13, 15, 16 and 17. I reproduce these recommendations in Appendix B to these reasons. These recommendations essentially provided that the project not proceed until Paramount: (1) has revised its Heritage Resource Plan to incorporate First Nation concerns; (2) has developed a compensation plan co-operatively with affected First Nations which address the effects on land and resources used beyond trapping; and (3) has provided INAC with proof that affected First Nations have approved of the Traditional Use Study and incorporated any mitigating measures arising from the Study into their development plan.
[45] The KTFN wrote to the Review Board and INAC urging support for the measures and asking that the necessary steps be taken to ensure that these conditions are fulfilled by Paramount before any construction begins on the ground. The KTFN noted that the report supported their position that Paramount’s Traditional Use Study had not been completed and the Benefits Plan failed to meet some of its legislated requirements regarding compensation.
[46] From the beginning of the Cameron Hills development, the Applicants have expressed concerns regarding the project’s actual impact on land, water and wildlife in the Cameron Hills area, affecting their rights to hunt fish and trap. From the outset, the KTFN consistently expressed two concerns: first, that a Traditional Land Use Study was required to provide baseline data against which mitigating measures could be designed and damages caused by Paramount’s development could be measured, and second, that an Impacts and Benefits Agreement which would include investments in the community and employment opportunities, be negotiated with the KTFN to address Paramount’s infringement of their aboriginal title and treaty rights. In the Applicant’s submission, neither of these objectives has been met.
[47] With respect to the Traditional Land Use Study, Paramount prepared a statutory Benefits Plan pursuant to subsection 5(2) of the Canada Oil and Gas Operations Act. Paramount concedes that the Benefits Plan was never intended to address specific benefits or impact on a particular community, but was a plan to address benefits to Canadians in general and people in the north in particular.
[48] The Applicants’ contend that Paramount’s Traditional Knowledge (TK) Study did not meet the requirements of a proper Traditional Land Use Study. They argue that the study was prepared without meaningful consultation and completed without their full or proper involvement or participation. They claim the study was deficient in that it did not consider or address how the KTFN occupied their territory, how their laws protected the land, water and wildlife, or how Paramount’s operations truly impact their economy, culture, traditional way of life and well-being.
[49] Paramount argues that the availability of traditional knowledge of the KTFN to further assist in fashioning mitigating measures was limited by the KTFN itself. Paramount’s TK study was prepared from information gathered from KTFN Elders and Chief Chicot himself, who participated in the process. Paramount contends that after it prepared the study it made several attempts to request further input from the Applicants. None was forthcoming. Paramount’s study was therefore submitted to the Review Board without the Applicants’ further input.
[50] The Applicants agree that only a limited amount of traditional land use information was provided to Paramount and the Review Board. They explain that they did not want some of their sensitive traditional knowledge to become public, such as the location of trap lines. They further believed that Paramount “needs to recognize the aboriginal and treaty rights of the KTFN before the remaining information is shared as part of the ABA negotiations about infringing KTFN rights”.
[51] The Applicants also contend that they were not involved in the process that led to the preparation of the benefits agreement by Paramount and there was no meaningful consultation about accommodating matters of real concern to their community. The Plan provided for compensating trappers “who can conclusively establish that they have sustained lower harvests directly attributable to Paramount’s operations in the area.” In the Applicants’ view, Paramount’s plan was unworkable for a number of reasons. First, precise records of their harvesting were not kept. Second, direct loss of trapping income is not the only impact warranting compensation or benefits. Third, the plan does not consider the fact that the Applicants’ treaty rights and asserted Aboriginal rights are at stake.
[52] The consult to modify process was initiated by the Minister of INAC with respect to the Gathering and Pipeline Project Environmental Assessment Report on December 20, 2001. The Ministers expressed concern with recommendations 13, 15, 16 and 17 in the Review Board’s Environmental Assessment Report and proposed certain modifications and a deletion. The Review Board felt that other participants to the environmental assessment process should have the opportunity to make their concerns known in respect of the impugned measures to be discussed at the upcoming meeting between INAC, the NEB and the Review Board. As a result, all participants, including the KTFN, were sent a copy of the Review Board’s December 24, 2001 letter to INAC wherein it expressed the view it would not object to these participants making their views known in respect to the proposed changes sought by the Ministers.
[53] In a letter to the Review Board dated January 3, 2002, INAC expressed the view that the provisions of the Act provide that only the federal Minister and the Responsible Ministers are to consult with the Review Board regarding its Report.
[54] The Review Board and the Ministers met in a closed meeting on January 4, 2002, despite the Applicants’ protestation. After considering the evidence presented in the consult to modify process, the Review Board approved modifications to all of the impugned measures, and also deleted measure 17. On January 11, 2002, the Ministers issued a final decision that substantially modified recommendations 13, 15, 16 and deleted recommendation 17. I reproduce these modified recommendations in Appendix C to these reasons. In his decision letter, the Minister of INAC, writing on behalf of the Responsible Ministers under the Act, indicated that certain letters expressing the views of the Applicants were considered. I note, however, that certain other letters on behalf of the Applicants were not identified by the Minister.
[55] The Applicants perceived the Ministers’ decision to be detrimental to their interests and, in particular, protested the deletion of recommendation 17 and modifications to the other recommended measures. The Applicants reiterated their position that they had not been consulted on this issue.
- The Extension Project
[56] In April 2003, Paramount brought an application to the Land and Water Board to amend some of the land use permits and water licenses issued with respect to its initial project. This aspect of the development came to be known as the Extension Project. It signalled the beginning of Paramount’s production work in the Cameron Hills. The project initially involved approval for 5 additional wells but would eventually also include the drilling, testing and tie-in of up to 50 additional wells over a period of 10 years; the production of oil and gas for over 15-20 years; the excavation of 733 km of seismic lines; the construction of temporary camps servicing up to 200 workers; the withdrawal of water from lakes; and the disposal of drill waste.
[57] After receiving the application, the Land and Water Board conducted the requisite preliminary screening of the project. During this stage it consulted with 21 organizations, including the KTFN and the DCFN. The Land and Water Board found, as a result of its preliminary screening, that it was satisfied of the project’s significant adverse impacts on the environment and that there was a clear indication of public concern. As a result the Land and Water Board referred Paramount’s application to the Review Board for an environmental assessment pursuant to section 125 of the Act, and recommended that the Review Board consider joint public hearings with the Land and Water Board.
[58] The environmental assessment followed the process outlined earlier in these reasons. In June 2003, the draft TOR and a draft work plan were sent to the interested parties, including the Applicants. On July 21, 2003, the Applicants responded to the draft TOR and as a result of comments made by the KTFN the work plan was adjusted.
[59] On August 8, 2003, the Review Board issued the final TOR, setting out the scope of the environmental review. The Review Board determined the environmental assessment should be focused on the cumulative effects of drilling, testing and tie-in of up to 50 additional wells over the next 10 years indicated in Paramount’s planned development and not just the 5 well sites actually applied for.
[60] On September 17, 2003, Paramount prepared and submitted its DAR to the Review Board which included an assessment of the impact of the 5 well sites applied for, plus the additional 48 under the planned development. The DAR also included a detailed summary of the public consultation process and the results of various studies that were undertaken for the purposes of the environmental assessment. The DAR also set out in an appendix a summary of the consultation and communication which had occurred between Paramount and the KTFN since May of 2000. The summary indicates extensive correspondence and a great number of meetings and exchanges between the parties.
[61] The second phase of the environmental assessment included two rounds of IRs. Many of these requests originated from the KTFN and were directed to both INAC and Paramount. Responses were provided, but not always to the satisfaction of the KTFN.
[62] A pre-hearing conference was held to address the hearing process and to set a draft agenda for the public hearing. A community meeting was held at Kakisa on February 17, 2004, between members of the KTFN, the Land and Water Board, the Review Board and Paramount to discuss related issues.
[63] A public hearing was held jointly by the Review Board and the Land and Water Board at Hay River on February 18 and 19, 2004. The Applicants participated in the hearing and had the opportunity to question Paramount and other parties involved in the environmental assessment.
[64] Following the public hearing, the parties were invited to submit technical reports to the Review Board. The KTFN did so on March 2, 2004 and on March 10, 2004 Paramount responded to the concerns raised in the technical report submitted by the KTFN. INAC, in a letter dated March 11, 2004, to the Review Board, also responded to concerns raised by the KTFN in its technical report and answered questions asked by the KTFN at the public hearing.
[65] During the Environmental Assessment Process the Applicants issued two Information Requests (IR 1.2.136 and IR 1.2.137) asking INAC to clarify how it intended to discharge its duty to consult and accommodate. INAC responded that the Land and Water Board and the Review Board are the primary vehicles for environmental assessment consultations with Aboriginal groups and the general public, producing an opportunity for participation. INAC indicated that it would wait until the environmental assessment process was complete before making any decision regarding potential infringement and Aboriginal consultation regarding the project.
[66] INAC’s understanding of the Crown’s duty to consult in respect to an asserted Aboriginal right is expressed in its response to KTFN Information Request 1.2.31, which I reproduce below:
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