Mikisew Cree First Nation v. Canadian Environmental Assessment Agency

Mikisew Cree First Nation v. Canadian Environmental Assessment Agency
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-09-21
Neutral citation
2023 FCA 191
File numbers
A-52-22
Notes
Digest
Decision Content
Date: 20230921
Docket: A-52-22
Citation: 2023 FCA 191
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
MIKISEW CREE FIRST NATION
Appellant
and
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY, MINISTER OF ENVIRONMENT AND CLIMATE CHANGE and CANADIAN NATURAL RESOURCES LIMITED
Respondents
Heard at Vancouver, British Columbia, on March 29, 2023.
Judgment delivered at Ottawa, Ontario, on September 21, 2023.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
PELLETIER J.A.
DE MONTIGNY J.A.
Date: 20230921
Docket: A-52-22
Citation: 2023 FCA 191
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
MIKISEW CREE FIRST NATION
Appellant
and
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY, MINISTER OF ENVIRONMENT AND CLIMATE CHANGE and CANADIAN NATURAL RESOURCES LIMITED
Respondents
REASONS FOR JUDGMENT
GLEASON J.A.
[1] The appellant, the Mikisew Cree Nation, is a successor to the Indigenous groups that adhered to Treaty 8 in 1899. The traditional territory of Mikisew is located in northeastern Alberta and includes the area around Lake Athabasca and the Peace-Athabasca Delta, extending south to Fort McMurray, and the Clearwater River. The Mikisew currently use—and have traditionally used—the Peace-Athabasca Delta, the Athabasca River, and its tributaries for fishing, harvesting, and other activities that are important to the Mikisew people and their culture.
[2] In the present appeal, the Mikisew appeal from the judgment of the Federal Court in Mikisew Cree First Nation v. Canadian Environmental Assessment Agency, 2022 FC 102 (per Favel J.). In that judgment, the Federal Court dismissed the Mikisew’s judicial review application that sought to set aside a February 15, 2019 decision of the Honourable Catherine McKenna, the then federal Minister of Environment and Climate Change.
[3] In her decision, the Minister declined to designate an extension of the Horizon Oil Sands Mine (the Horizon Mine) owned by the respondent, Canadian Natural Resources Limited (CNRL), as a reviewable project under subsection 14(2) of the now-repealed Canadian Environmental Assessment Act, S.C. 2012, c.19, s. 52 [CEAA, 2012].
[4] For the reasons that follow, I would dismiss this appeal, with costs.
I. Overview [5] It is convenient to commence with a general overview.
[6] The project at issue in this appeal is CNRL’s Horizon Oil Sands Mine North Pit Extension Project (the Extension Project). It is not a new project. Rather, it envisages an extension of an area of mine operations in CNRL’s existing Horizon Mine. That Mine is located approximately 70 kilometers north of Fort McMurray, Alberta and is within the traditional territory of the Mikisew. The Horizon Mine was originally approved by both Canada and Alberta in 2004, following a Joint Review Panel Environmental Assessment.
[7] The Extension Project involves a plan to extend the Horizon Mine within its existing lease boundaries by 3448 hectares, equal to a little over 18% of the existing operating area of the Mine. It would extend the operating life of the Mine by approximately seven years. It is contemplated that the Extension Project will use the existing Horizon Mine infrastructure and will not require any new or additional water allocations from the Athabasca River, which are all within the existing licence for the Horizon Mine issued under the Alberta Water Act, R.S.A. 2000, c. W-3 [the Water Act]. Notwithstanding this, it is expected that the Extension Project will require a new licence under the Water Act to divert surface and groundwater from the Calumet River, which represents less than 0.1% of the annual flow of the Athabasca River.
[8] The Extension Project is subject to an environmental assessment by the Alberta Energy Regulator under the Alberta Environmental Protection and Enhancement Act, RSA 2000, c. E-12 [the EPEA]. It is not disputed that the Mikisew have the right to participate in that provincial environmental assessment process. Included in the Record before us are filings that the Mikisew made to the Alberta Energy Regulator in the context of the environmental assessment under the Alberta EPEA.
[9] The Extension Project may also require a new authorization under the federal Fisheries Act, R.S.C., 1985, c. F-14 [Fisheries Act]. This is the only federal approval that is expected to be required in relation to the Extension Project.
[10] The Extension Project was not automatically subject to a federal environmental assessment under CEAA, 2012. However, the Minister could have exercised her discretion to designate the Extension Project under subsection 14(2) of CEAA, 2012, which would have triggered the requirement for a federal assessment under subsection 14(1) of that legislation. Under subsection 14(2) of CEAA, 2012, the Minister possesses broad discretionary authority to require a federal environmental assessment in respect of projects for which a federal assessment was not obligatory, if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation. Subsection 14(2) of the Act provides:
Minister’s power to designate
Pouvoir du ministre de désigner
14(2) The Minister may, by order, designate a physical activity that is not prescribed by regulations made under paragraph 84(a) if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation.
14(2) Le ministre peut, par arrêté, désigner toute activité concrète qui n’est pas désignée par règlement pris en vertu de l’alinéa 84a), s’il est d’avis que l’exercice de l’activité peut entraîner des effets environnementaux négatifs ou que les préoccupations du public concernant les effets environnementaux négatifs que l’exercice de l’activité peut entraîner le justifient.
[11] On July 18, 2018, the Mikisew and other Indigenous groups submitted a letter to the Canadian Environmental Assessment Agency (the Agency), requesting that the Agency advise the Minister that she should designate the Extension Project under subsection 14(2). They based their request on their belief that the Extension Project would cause further degradation to the environment and negatively impact their Treaty or Aboriginal rights or claims.
[12] Following receipt of additional submissions from the Mikisew, submissions from CNRL, and advice from the Agency, the Minister decided not to issue the requested designation on February 15, 2019.
[13] The Mikisew commenced a judicial review application in the Federal Court, seeking to set aside the Minister’s refusal to designate the Extension Project. The Mikisew argued before the Federal Court, and before this Court, that the Minister breached the duty to consult in reaching her decision and that the decision was unreasonable.
[14] In the judgment under appeal, the Federal Court dismissed the Mikisew’s judicial review application. It found that the duty to consult was not triggered and that the Minister’s decision was reasonable.
II. Did the Federal Court Err in Deciding that the Duty to Consult was Not Triggered? [15] I turn first to examine whether the Federal Court erred in concluding that the duty to consult was not triggered by the Minister’s refusal to designate the Extension Project pursuant to subsection 14(2) of CEAA, 2012.
A. General Principles Applicable to the Duty to Consult [16] The duty to consult flows from the honour of the Crown and is constitutionalized by section 35 of the Constitution Act, 1867: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386 at para. 78 [Ktunaxa Nation]. It accordingly follows that determining the existence, extent, and content of the duty to consult involves a question of law, reviewable by this Court for correctness: Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, [2020] 3 F.C.R. 3 at para. 27, leave to appeal to SCC refused, 39111 (2 July 2020) [Coldwater First Nation]; Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148, [2015] F.C.J. No 829 (QL) at paras. 46-47; see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 55 [Vavilov].
[17] This is to be contrasted with the judicial review of the adequacy of any consultation conducted by or on behalf of the Crown. Indeed, whether the duty to consult has been fulfilled or not in a given case is reviewable under the deferential reasonableness standard: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 7, [2004] 3 S.C.R. 511 at para. 62 [Haida Nation]; Ktunaxa Nation at para. 82; Coldwater First Nation at para. 27.
[18] In the present case, the Federal Court held that the duty to consult was not triggered. This is a determination of law, reviewable for correctness. Thus, I must assess whether the Federal Court was correct in concluding that the duty to consult was not triggered in the case at bar. As will soon become apparent, I agree with the Federal Court’s conclusion that the duty to consult was not triggered in this case; however, I do not agree with all of the Federal Court’s reasoning that led it to reach that conclusion.
[19] In Haida Nation, the Supreme Court held that the duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it”: at para. 35. The Supreme Court later confirmed that this two part test extends to Treaty rights and claims: see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 55 [Mikisew Cree].
[20] In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 [Rio Tinto], the Supreme Court elaborated on the test set out in in Haida Nation, by setting out a three-part, as opposed to a two-part, test. Since Rio Tinto, the test for assessing whether a duty to consult is triggered in a given situation “… can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right”: at para. 31.
[21] The Supreme Court went on in Rio Tinto to further describe each of the foregoing elements.
[22] The first element, regarding the need to establish the Crown’s knowledge of a potential Aboriginal or Treaty claim or right, is not at issue in this appeal and was conceded by Canada before both the Federal Court and this Court. Therefore, no more needs to be said about the first element of the test. The second and third elements of the test for assessing whether a duty to consult arises, on the other hand, are at issue in the case at bar.
[23] In Rio Tinto, the Supreme Court held that the second element of the test for assessing whether a duty to consult arises requires “…conduct that may adversely impact on the claim or right in question”: at para. 42. The Court continued by stating that the nature of governmental action that gives rise to a duty to consult is “not confined to the exercise of statutory powers” or to “decisions or conduct which have an immediate impact on lands or resources”: at paras. 43 and 44. Rather, the duty to consult may extend to “‘strategic higher level decisions’ that may have an impact on Aboriginal claims and rights”: at para. 44, citing Jack Woodward, Native Law, vol. 1 (Toronto: Carswell, 1994, loose‑leaf updated 2010, release 4) at 5-41 [Woodward].
[24] Turning to the third element of the test for assessing whether a duty to consult arises, the Supreme Court found that “a claimant must show a causal connection between the proposed government action and a potential for adverse impacts on pending Aboriginal claims or rights”: at para. 45. As with the second element of the test, the Supreme Court held that “…. a purposive approach to this element is in order” in light of the purpose of the duty to consult, which “… seeks to provide protection to Aboriginal and treaty rights while furthering the goals of reconciliation between Aboriginal peoples and the Crown”: at paras 34 and 45. The third element of the test for assessing whether a duty to consult exists, like the second element, may be met where the conduct or decision involves “…high level management decisions or structural changes to the resource’s management [that] may … affect Aboriginal claims or rights even if these decisions have ‘no immediate impact on lands and resources’”: at para. 47, citing Woodward at p. 5-41.
[25] However broad this approach is, though, “[m]ere speculative impacts … will not suffice”: at para. 46. Rather, “… there must be ‘an appreciable effect on the First Nations’ ability to exercise their aboriginal right’. The adverse effect must be on the future exercise of the right itself; an adverse effect on a First Nation’s future negotiating position does not suffice”: at para. 46, quoting from R. v. Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653, at para. 44, leave to appeal to SCC refused, 32142 (15 November 2007).
[26] This Court has held that the time for assessing whether a duty to consult arises is before the governmental decision is made or the conduct in question occurs: Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, 308 A.C.W.S. (3d) 676 at para. 50. This makes sense since the procedural right to be consulted cannot depend on whether the ultimate decision rendered is favourable to the position advocated by the party claiming the existence of a duty to consult.
[27] Consultation obligations extend to both the Crown in right of Canada and in right of a province, with each owing an independent duty to consult in respect of its own contemplated conduct or decisions: Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447 at paras. 50-51, Haida Nation at paras. 57-59. Thus, as the respondents, the Canadian Environmental Assessment Agency and the Minister of Environment and Climate Change (collectively, Canada) correctly note at paragraph 58 of their memorandum of fact and law, “the federal Crown is not responsible for ensuring that the provincial Crown meets its independent duty” to consult. This principle has important implications in the case at bar.
B. Relevant Facts and Statutory Provisions [28] I turn next to outline the statutory provisions and facts that are relevant, or alleged to be relevant, to the existence of a duty to consult in the instant case.
[29] As noted, the Extension Project was not subject to mandatory review under CEAA, 2012. Under that legislation, other sorts of projects fell within the definition of a “designated project” and thus were automatically subject to mandatory review. These included larger expansions of oil sands mines, where the proposed expansion would have resulted in an increase in the area of mine operations of 50% or more and a total bitumen production capacity of 10,000 m3/day or more: see CEAA, 2012, subsection 2(1) and Regulations Designating Physical Activities, SOR/2012-147, section 2 and section 9 of the Schedule.
[30] As also already noted, under subsection 14(2) of CEAA, 2012, the Minister possesses a broad discretionary authority to designate projects, which are not otherwise subject to federal environmental review.
[31] Under section 103 of CEAA, 2012, the Agency was required to advise and assist the Minister in exercising her powers and duties under that Act. The section provides:
103 (1) The Canadian Environmental Assessment Agency is continued and must advise and assist the Minister in exercising the powers and performing the duties and functions conferred on him or her by this Act.
103 (1) Est maintenue l’Agence canadienne d’évaluation environnementale chargée de conseiller et d’assister le ministre dans l’exercice des attributions qui lui sont conférées par la présente loi.
[32] The effect of either a discretionary or mandatory designation under CEAA, 2012 is similar, although there are variations in the process, depending on the project being proposed and whether the Minister decides to refer a project to a review panel for environmental assessment. In all circumstances, the responsible authority or other decision-maker tasked with approving a project subject to review is required to assess, among other things, whether the project is “likely to cause significant environmental effects”: see CEAA, 2012, subsections 19(1), 31(1), and 52(1).
[33] Turning to the facts in the case at bar, as noted, it was the Mikisew and the other Indigenous groups who initiated the Minister’s consideration of the possible designation of the Extension Project through their July 5, 2018 letter to the Agency.
[34] In their letter, they expressed concerns about the potential adverse environmental impacts of the Extension Project on the Athabasca River, Wood Buffalo National Park, the Peace-Athabasca Delta, and their Aboriginal or Treaty rights. They also stated that they had concerns that the Alberta environmental assessment process could not adequately address the negative impacts of the Extension Project. Enclosed with the letter was a 2010 study, commissioned by the Mikisew, entitled “As Long as the Rivers Flow: Athabasca River use, Knowledge and Change” and a 2017 UNESCO World Heritage Committee Mission Report, entitled “Reactive monitoring Mission to Wood Buffalo National Park”.
[35] The Agency replied to this letter on July 24, 2018. In its response, the Agency stated that it had concluded that the Extension Project was not subject to a mandatory federal environmental review, based on information provided by CNRL. The Agency further noted that it would be providing advice to the Minister on whether she should designate the project under subsection 14(2) of CEAA, 2012. Included in the letter was an electronic link to the Agency’s guidance document entitled “Designating a Project under the Canadian Environmental Assessment Act, 2012” (the Guidance Document). The Guidance Document states that the Agency may solicit the views of other federal government departments in formulating its advice to the Minister on designation requests. In the July 24, 2018, letter, the Agency also invited the Mikisew to provide any further comments that it wished to make to the Agency by August 23, 2018.
[36] The Mikisew took up this request and, by letter dated August 23, 2018, further expanded on their concerns. On the same date, the Agency sent the Mikisew a copy of CNRL’s submissions in response to the designation request.
[37] The Mikisew sent a further letter to the Agency, in reply to CNRL’s submissions, on August 27, 2018. In that letter, the Mikisew appended a copy of the Terms of Reference (TORs), which is a document that sets out the scope for the Environmental Impact Statement that will ground the provincial environmental assessment being undertaken by the Alberta Energy Regulator. The Mikisew also included its submissions to that Regulator on the TORs, as well as the response it received from the Regulator on these submissions. In its August 27, 2018 letter to the Agency, the Mikisew took the position that the Alberta TORs failed to include several issues that were central to the Mikisew’s concerns and expounded on their views as to the inadequacy of the process being undertaken by the Alberta Energy Regulator.
[38] In August 2018, the Mikisew received a copy of a letter from Parks Canada to the Agency in which Parks Canada set out its views on the potential environmental effects of the Extension Project and another project that is not at issue in this appeal. It is unclear who sent the Mikisew a copy of this letter. In its letter, Parks Canada set out its views as to the potential effects of the two projects that related to the mandate of Parks Canada and came within the scope of the matters that could be considered under CEAA, 2012. These potential effects included:
water quality and quantity impacts with potential effects on fish and fish habitats, aquatic species and migratory birds;
effects on federal lands, and specifically, Wood Buffalo National Park; and
effects on Indigenous current use of the lands and resources for traditional purposes.
[39] On September 20, 2018, representatives of the Mikisew and other Indigenous groups met with members of the Agency and representatives of other federal departments, including Environment and Climate Change Canada (ECCC) and Parks Canada. During the meeting, the Mikisew’s concerns regarding the Extension Project were further discussed.
[40] The Agency completed an analysis report on the request to designate the Extension Project and another project. In its analysis, the Agency stated that it had sought and received input from several Indigenous groups, including the Mikisew, the Alberta Energy Regulator, several federal departments, and Parks Canada. The Agency summarized the input that it received from various parties and set out the analysis grounding its recommendation that the Minister decline to designate the Extension Project under subsection 14(2) of CEAA, 2012.
[41] The Agency provided its recommendations in a memorandum to the Minister, dated December 15, 2018. In its memorandum, the Agency recognized that the Extension Project might cause environmental effects, but advised the Minister that she should not issue the requested designation. The Agency was of the view that a designation was not warranted in light of the information that it received from federal departments and the existence of other federal and provincial mechanisms already in place to assess and manage the potential adverse effects associated with the Extension Project.
[42] In January 2019, the Mikisew provided the Agency with a technical review of CNRL’s Environmental Impact Statement, which CNRL had filed with the Alberta Energy Regulator. This technical review was prepared by a consultant, Management Strategies Environmental Solutions (MSES), on behalf of the Mikisew and another Indigenous group. The technical review took issue with some of the contents of CNRL’s Environmental Impact Statement.
[43] On February 5, 2019, the Mikisew again wrote to the Agency about the Extension Project. In their letter, the Mikisew summarized MSES’ technical review, which had been forwarded to the Agency in January.
[44] On February 12, 2019, the Agency completed a second memorandum to the Minister, advising that the additional information it had received subsequent to the date of its first memorandum did not change its recommendation to the Minister to decline to designate the Extension Project.
[45] On February 13 and 15, 2019, the Minister signed off on both memoranda from the Agency, concurring with the advice of the Agency that she decline to issue the requested designation. On February 15, 2019, the Minister wrote to the Mikisew, advising them of her decision to decline their designation request, setting out brief reasons for her decision. More will be said about the Minister’s reasons and the contents of the documents before the Minister when she made her decision in the section that follows. For now, the foregoing general review of the process, and of the participation of the Mikisew in that process, provides a sufficient backdrop for my discussion of the correctness of the Federal Court’s conclusion that the duty to consult was not triggered.
C. The Decision of the Federal Court [46] I turn next to review the reasons of the Federal Court on the consultation issue. The Federal Court found that the first and second elements of the test for the existence of a duty to consult, as set out in Rio Tinto, were met in the instant case, but that the third element was not.
[47] As concerns the second element, the Federal Court followed the approach reached by another judge of the Federal Court in Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, aff’d (on other grounds) 2022 FCA 123 [Ermineskin] and held that the second element was met because the Minister’s consideration of the designation request involved Crown conduct. The Federal Court held as follows at paragraphs 93-94 of its Reasons:
[93] In finding that the second part of the Rio Tinto test was established, Justice Brown stated the following at paragraph 99 of Ermineskin:
I have no hesitation in concluding that the Minister’s (i.e., the Crown’s) consideration of a designation order as occurred in this case constitutes Crown conduct that engages a potential Aboriginal or treaty right and may adversely impact on the claim or right in question. The Respondent Minister concedes the second element
[Emphasis added by the Federal Court.]
[94] There is no jurisprudence that specifically states that a decision not to designate constitutes “Crown conduct” that satisfies the second part of the test. That said, I find Ermineskin to be the most instructive. The above passage from Ermineskin would appear to stand for the proposition that it is the consideration of a designation order, to be positively or negatively determined in the circumstances of the particular case, that qualifies as Crown conduct. This is consistent with the “generous, purposive approach that must be brought to the duty to consult” under the second step of the Rio Tinto framework (Rio Tinto at para 43). In the present matter, unlike in Ermineskin, Mikisew was the party who made the request to the Minister. However, as in Ermineskin, the Minister had to consider whether she should issue a designation order or not. Accordingly, guided by Ermineskin, I find that the Minister’s consideration of Mikisew’s request constitutes Crown conduct, thereby satisfying step two of the test.
[48] In this case, the Federal Court reached a different conclusion from the one drawn in Ermineskin with respect to the third element of the test. The Federal Court reasoned that the designation decision would not potentially adversely impact a claim or right of the Mikisew because the Mikisew had the right to participate in the Alberta environmental assessment process. In the Court’s view, it was that provincial process which would determine whether the Extension Project should proceed or not. The Federal Court stated as follows, at paragraph 98 of its Reasons:
[98] Both Respondents make a convincing argument that there is still an opportunity for Mikisew to bring all of the same issues it has asserted in the present proceeding before the AER and in any Provincial EA that may be undertaken. I am unable to find that the Minister’s refusal to designate will have potentially adverse impacts on Mikisew’s Aboriginal and Treaty rights because it is the AER that examines the Extension Project and any environmental or Aboriginal and Treaty right concerns. Mikisew will be a participant in that process and will have an opportunity to bring its views forward. Accordingly, even taking into account the generous and purposive approach that must be brought to the [duty to consult], I find that the third part of the Rio Tinto framework has not been met.
[49] In reaching its conclusion, the Federal Court distinguished all of the cases relied on by the Mikisew, with the exception of Ermineskin, which, as noted, it followed in part: see paras. 82-90. The cases so distinguished by the Federal Court included: Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2015 BCSC 1180, rev’d 2016 BCCA 500, leave to appeal to SCC refused, 37449 (15 June 2017); Da’naxda’xw/Awaetlala First Nation v. British Columbia (Attorney General), 2011 BCSC 620, 202 A.C.W.S. (3d) 642; Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, 376 B.C.A.C. 54; Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, 223 A.C.W.S. (3d) 740, leave to appeal to SCC refused, 35236 (19 September 2013); Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354, aff’d 2008 FCA 20; Mikisew Cree First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development), 2014 FC 1244, rev’d 2016 FCA 311, aff’d 2018 SCC 40; Coastal First Nations v. British Columbia (Environment), 2016 BCSC 34, 85 B.C.L.R. (5th) 360 [Coastal First Nations].
D. Discussion [50] With this background in mind, I turn now to the examination of whether the Federal Court erred in its conclusion that the duty to consult was not triggered.
[51] In examining this question, it is essential to correctly characterize the Crown conduct at issue. Here, the contemplated conduct involves the Minister’s determination of whether or not to issue a designation under subsection 14(2) of CEAA, 2012. Thus, the decision involves consideration by the Minister of whether or not to exercise a discretionary power afforded to her by statute. The fact that a determination on whether or not to exercise a statutory power was at play, however, is not determinative of whether the duty to consult arises. Rather, it is the potential impact of the conduct that must be assessed.
[52] As noted, the Supreme Court held in Rio Tinto that both the second and third elements of the test it set out in that case require consideration of the potential of the decision or conduct to negatively impact Aboriginal or Treaty claims or rights. There is accordingly a degree of overlap between the second and third elements in the test.
[53] The distinction between the two elements is that, under the second element, what is assessed is the general nature of the potential impact of a contemplated decision or conduct on Aboriginal or Treaty claims or rights to determine whether such an impact exists. The third element of the test, on the other hand, focusses on causation and assesses the degree to which the decision or conduct gives rise to non-speculative impacts.
[54] The Saskatchewan Court of Appeal has recently discussed the distinction between the second and third elements of the test from Rio Tinto in George Gordon First Nation v. Saskatchewan, 2022 SKCA 41, leave to appeal to SCC refused, 40184 (16 March 2023). In that case, the Court held that, under the second element, “… there must be current contemplated Crown conduct or a Crown decision… that may adversely have an impact on the claim or right at some point in time”: at para. 87 [emphasis added]. As concerns the third element, the Saskatchewan Court of Appeal noted that it requires that:
… the contemplated conduct or decision … have the potential to adversely affect an Indigenous claim or right in an appreciable manner, and that the ‘claimant must show a causal relationship between the proposed government conduct or decision’ and the potential for such an effect (at para, 87, quoting from Rio Tinto at para. 45).
[55] In the case at bar, the Federal Court found that the second element was met without analyzing the potential impact of the Minister’s decision. However, Rio Tinto mandates the consideration of the potential impact of the contemplated Crown conduct or decision under both the second and third elements of the test.
[56] It is my view that the second element of the test from Rio Tinto is not met in the present case. Here, there is an ongoing mandatory provincial environmental assessment in which the Mikisew have the right to participate and to be consulted. Given this, the decision of the federal Minister under subsection 14(2) of CEAA, 2012 does not have any potential impact on the Mikisew’s Aboriginal or Treaty rights or claims. Any impact that might be experienced on such rights or claims would flow from an approval of the Extension Project, which will be approved—or not—by the Alberta Energy Regulator. In these circumstances, there is no contemplated conduct or decision of the federal Crown capable of affecting the Mikisew’s claimed Treaty or Aboriginal rights.
[57] On this point, it must be underscored that it is not the responsibility of the federal Crown to sit in judgment of the Crown in right of Alberta’s compliance with the provincial Crown’s consultation and accommodation obligations. That is rather a matter for assessment by the Alberta courts. Thus, if, as the Mikisew allege will happen, the Alberta process were to unreasonably fail to adequately discharge Alberta’s consultation obligations, that is a matter that could be taken up with the courts in Alberta. I agree with Canada that “the Mikisew position incorrectly characterizes the Minister’s [d]ecision as a high level and strategic decision that sets the stage for future provincial decisions or regulatory authorization. The Minister has no role in the provincial assessment processes applicable to the [Extension] Project”: Canada’s Memorandum of Fact and Law at para. 68.
[58] In short, the Mikisew cannot require the federal Crown to undertake consultation by making a request under subsection 14(2) of CEAA, 2012, in circumstances where there is an ongoing provincial environmental assessment process that engages the provincial Crown’s duty to consult with the Mikisew.
[59] Thus, I conclude that the Federal Court erred in finding that the second element from the test in Rio Tinto was met in the case at bar.
[60] That said, I want to add that the foregoing conclusion regarding the lack of impact of the Minister’s decision under the second element of the test from Rio Tinto may be different if there were a situation involving a project in respect of which a provincial environmental assessment was not required and an optional federal one was available. Determining whether a duty to consult arises and the extent of that duty are context-specific, and the foregoing hypothetical situation involves a materially different context.
[61] Turning to the third element of the test in Rio Tinto, I see no error in the Federal Court’s conclusion that the third element of the test is not met. I agree with the Federal Court that any impact on the Mikisew’s Aboriginal or Treaty rights or claims can flow only from a decision to approve the Extension Project. There is thus no causal relationship between the claimed impact and the Minister’s decision.
[62] As was noted by the Saskatchewan Court of Appeal in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 31, 253 A.C.W.S. (3d) 252 at paragraph 104, “… if adverse impacts are not possible until after a later-in-time, independent decision, then it is that later decision that triggers the duty to consult”.
[63] This Court endorsed a similar principle in Hupacasath First Nation v. Canada (Minister of Foreign Affairs), 2015 FCA 4, [2015] F.C.J. No. 4 at paragraph 102, where it stated that “ [a]n impact that is, at best, indirect, that may or may not happen at all (such that we cannot estimate any sort of probability), and that can be fully addressed later is one that falls on the speculative side of the line, the side that does not trigger the duty to consult”.
[64] As mentioned above, the Mikisew cited several cases to the Federal Court in addition to Ermineskin in support of their submissions on the consultation issue. I agree with the basis upon which the Federal Court distinguished these cases, which all involved materially different fact patterns than the facts at issue in the appeal before us.
[65] In terms of the additional cases now cited to this Court by the Mikisew on the consultation issue, the only one that is close to the fact pattern in the case at bar is Coastal First Nations. There, the British Columbia Supreme Court held, in obiter dicta, or non-binding comment, that the province owed a duty to consult to the First Nation applicants on whether to withdraw from an Equivalency Agreement with the federal government. Under that Agreement, British Columbia forewent its obligation to conduct an environmental assessment of the proposed Northern Gateway pipeline in favour of one conducted by the National Energy Board. The First Nations requested that the Province consult with them and consider exercising the 30-day termination provision in that Agreement, which would have resulted in a compulsory provincial environmental assessment of the pipeline.
[66] Not only is Coastal First Nations not binding upon this Court, but it is also not persuasive given that the British Columbia Court of Appeal has cast doubt upon its principal holdings in Squamish Nation v. British Columbia (Environment), 2019 BCCA 321, 29 B.C.L.R. (6th) 77 at paragraph 9 and Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, aff’d 2020 SCC 1 at paragraph 51. I also believe that the facts in Coastal First Nations are distinguishable from those in the case at bar because there has been no abdication by the federal government of a mandatory environmental assessment process in favour of a provincial one. Further, the alleged potential adverse effects on Mikisew’s rights that could trigger the duty to consult in this case derive from the Alberta Energy Regulator’s potential approval of the Project, not from the Minister’s decision. In other words, there is no causal link between the Minister’s decision not to designate a project and the potential adverse effects that Mikisew claim. For these reasons, Coastal First Nations does not support the conclusion that the Mikisew seek.
[67] Given the nature of the decision at issue in the instant case, I find that there was no obligation for the Minister to have consulted with the Mikisew before deciding on their designation request. Thus, the Federal Court was correct in reaching the same conclusion and the first ground of appeal fails.
III. Did the Federal Court Err in Deciding that the Minister’s Decision was Reasonable? [68] I turn next to the Mikisew’s second ground of appeal, which alleges that the Federal Court erred in finding the Minister’s decision reasonable. There are two aspects to the Mikisew’s argument, both of which are premised on the analysis report prepared by the Agency for the Minister, as opposed to the reasons for the Minister’s decision in her February 15, 2019 letter to the Mikisew.
[69] The Mikisew first submit that the Agency’s analysis not only misapprehended the relationship between the Wood Buffalo National Park, the Peace-Athabasca Delta, and Lake Athabasca, but also ignored evidence regarding the Extension Project’s impacts on these areas. They highlight that, although Parks Canada concluded that the Extension Project may contribute to water quality and quantity changes in the Athabasca River and potential cumulative impacts within the Peace-Athabasca Delta in Wood Buffalo National Park World Heritage Site, the Agency considered the adverse effects unlikely since ECCC did not identify concerns relating to these aspects. The Mikisew say that it is not rational for the Agency to have preferred the opinion of ECCC to that of Parks Canada on an issue relating to federal land and parks. They also argue that this statement was untrue because ECCC did identify such concerns.
[70] Second, they submit that the Agency unreasonably considered whether the Project was likely to cause adverse environmental effects, contrary to CEAA, 2012, and the Agency’s own Guidance Document, which encourages the consideration of the potential for such effects, as opposed to their likelihood, when the Minister is considering a designation request.
[71] The latter argument appears not to have been made before the Federal Court, nor was it considered by that Court in the decision under appeal. Neither of the respondents objected to the right of the Mikisew to raise this argument on