Katlodeeche First Nation v. Canada (Attorney General)

Katlodeeche First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-05-02
Neutral citation
2013 FC 458
File numbers
T-434-11
Decision Content
Federal Court
Cour fédérale
Date: 20130502
Docket: T-434-11
Citation: 2013 FC 458
Ottawa, Ontario, May 2, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CHIEF ROY FABIAN SUING
ON HIS OWN BEHALF AND ON BEHALF
OF ALL MEMBERS OF THE
KATLODEECHE FIRST NATION AND THE
KATLODEECHE FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND PARAMOUNT RESOURCES LTD.
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 18.1 of the Federal Courts Act RSC 1985 c F-7 for judicial review of the decision of the Minister of Indian and Northern Affairs Canada (Minister) to issue a Type A Water Licence MV2010L1-0001 (Type A Water Licence) to Paramount Resources Limited (Paramount) pursuant to the Mackenzie Valley Resource Management Act, SC 1998, c 25, s 99 (Act) and associated regulations (Regulations). The Type A Water Licence allows Paramount to use water for oil and gas exploration and development as part of the Paramount Cameron Hills Project (Project).
BACKGROUND
KFN First Nation
[2] The Katlodeeche First Nation (KFN) is an Indian Band within the meaning of the Indian Act, RS 1985, c I-5, and its members are Aboriginal peoples within the meaning of subsection 35(1) of the Constitution Act, 1982. KFN has a membership of approximately 650 people, and is one of twelve groups who identify themselves as members of the Deh Cho First Nations. In 2010, KFN received approximately $70,000 in funding from the Minister to address issues relating to land and resources.
[3] KFN entered into Treaty 8 with Canada in or around 1900. Treaty 8 preserves KFN’s right to rely on the lands, waters and resources of KFN’s traditional territory to sustain its Members culturally, socially and economically through, inter alia, hunting, fishing and trapping (KFN’s Treaty Rights). Canada and KFN disagreed on the interpretation of Treaty 8, and in 2001, Canada began negotiations with KFN for Treaty Land Entitlement (TLE). Since 1998, Canada and all the Deh Cho First Nations have been involved in talks to address outstanding matters under Treaties 8 and 11 (Deh Cho Process).
[4] In 2010, Canada began negotiations for a comprehensive land claim settlement agreement specific to KFN. These negotiations are still in progress. At all times material to this application, the Minister had knowledge of KFN’s claim to aboriginal and treaty rights in the Project area, though Canada has never recognized the claim of KFN for treaty rights or aboriginal title or rights over the lands in the Cameron Hills, referred to by KFN as the “Naghah Zhie” (Naghah Zhie).
[5] KFN’s traditional territory is situated on the south shore of Great Slave Lake at the mouth of the Hay River in the Northwest Territories, including the Hay River watershed and the Naghah Zhie where the Project is located. There are other Aboriginal groups who also claim entitlement to the Naghah Zhie, and there is a lack of consensus between these groups as to the different claims.
[6] The Naghah Zhie provides water and wildlife to the Hay River watershed and is a calving area for caribou and moose. KFN says that its members engage in hunting, trapping and fishing in the Naghah Zhie area, although they more regularly do so in the Buffalo Lake region.
Paramount
[7] Paramount first established an interest in the Naghah Zhie area in 1979. A chronology of the consultation between Paramount and KFN since that time is canvassed in the Affidavit – Hughes – filed with Paramount’s Record (Hughes Affidavit).
[8] In 2000 and 2001, Paramount conducted a Traditional Knowledge Study and Heritage Resource Impact Assessment covering Naghah Zhie area, which included collaboration with KFN and other First Nations. In 2007, Paramount met with KFN to discuss the possibility of lands being selected in the Naghah Zhie area as part of KFN’s claimed additional LTE. In 2008, Paramount and KFN entered into discussions with respect to KFN purchasing a share in the Project.
The Statutory Background
[9] A Type A Water Licence, the type at issue in this application, allows oil and gas production, processing or refining. It is required for all deposits of waste if more than 300 cubic meters of water a day is used. The issuance of a Type A Water Licence in this case replaces all existing Type B Water Licences for the Project, which are much more narrow in scope.
[10] Under the Act, a developer must apply to the Mackenzie Valley Land and Water Board (Board) to obtain a Type A Water Licence. Based on whether there might be significant adverse impacts and public concern, the Board decides whether the application should be referred to the Mackenzie Valley Environmental Impact Review Board (Review Board) for an environmental assessment screening. If that does not happen, then the Board maintains control over the application, as well as the terms and conditions under which the licence will be issued, if at all.
[11] An application for a Type A Water Licence requires that a public hearing be held by the Board. As set out in section 81 of the Act, within 30 days of receiving the Type A Water Licence prepared by the Board, the Minister must make a final decision as to whether to authorize the Type A Water Licence and provide written reasons in the notification. The Minister may extend the period of 30 days by not more than 30 additional days.
The History of the Type A Water Licence
[12] The regulatory history of the Project is described in the Hughes Affidavit as part of Paramount’s Record. Over the past two decades, the Project has been the subject of four environmental assessments (EAs), and has required numerous types of licences.
[13] In 2000, Paramount submitted its initial applications for land use permits and Type B Water Licences for the drilling stage of its operations. KFN participated in the approval process for these licences, and ultimately supported the Project proceeding. Although KFN did not participate in an environmental assessment that was undertaken in 2001, in 2002 KFN provided correspondence to all interested parties saying it was looking forward to working with Paramount.
[14] In April, 2003, Paramount applied to the Board to amend different Type B Water Licences. This application was very broad in scope and an EA was ordered (EA03-005). The scope of EA03-005 was defined as:
…the cumulative effects of drilling, testing and tie-in of up to 50 additional wells over a period of 10 years, production of oil and gas over 15 to 20 years, and abandonment and reclamation of the entire development.
[15] The potential cumulative environmental impacts for the remaining life of the Project were considered, which included 92 wells and facilities. The use of a Type A Water Licence for 15 to 20 years of production for 92 wells was assessed within the scope of EA03-005, even though at that time Paramount had not yet applied for a Type A Water Licence. The public hearing for EA03-005 was held on February 18 and 19, 2004 in Hay River, and Chief Fabian provided comments on the impacts of the Project. KFN also provided a technical report on 2 March 2004, which raised concerns about impacts on water quality and the importance of protecting the watershed flowing off Naghah Zhie. Paramount responded on 11 March 2004, addressing these concerns.
[16] The 1 June 2004 report of EA03-005 concluded that the Project “will not likely have a significant environmental impact or be the cause for significant public concern and should proceed to the regulatory phase of approvals” (Hughes Affidavit, Exhibit 52).
[17] KFN participated in the public hearing for EA03-005 by providing oral and written submissions regarding its asserted rights and potential adverse impacts. Paramount responded in writing to KFN’s concerns, and the Board expressly considered KFN’s comments in its decision. KFN never challenged the adequacy of Crown consultation during this process, and the Federal Court held in Ka’a’Gee Tu First Nation v Canada (Attorney General), 2012 FC 297 [Ka’a’Gee Tu 2012] that it was a good process.
[18] On 5 January 2010, Paramount submitted its application for the Type A Water Licence to the Board. The purpose of the application was to bring all of Paramount’s Type B licences under one licence, and was for all water use associated with the Project for the remaining life of the Project, which was approximately 15 years. The water use contemplated by the Type A Water Licence did not change from that considered in EA03-005.
[19] On 18 March 2010, the Board sent out Paramount’s application to KFN for review. Comments were due by 3 May 2010, but KFN did not submit any. Also on 18 March 2010, the Board sent out a draft work plan which included July 27-28, 2010 as the proposed dates for a public hearing. The deadline for comments on the draft work plan was 6 April 2010. KFN did not submit any comments on the draft work plan.
[20] On 29 April 2010, KFN submitted an application to Indian and Northern Affairs Canada (INAC), now Aboriginal Affairs and Northern Development Canada for $30,000 in “resource pressure funding.” The purpose of this funding is to assist Aboriginal groups to participate in regulatory processes. KFN’s application specifically mentioned the Project (Chief Fabian Cross Affidavit, Exhibit 6, Attorney General’s Record). On 7 July 2010, KFN’s request for pressure funding was approved.
[21] Updated versions of the work plans were distributed on May 6 and June 9, 2010.On 7 June 2010, the Board published the dates for the public hearing of the Project, which was to take place in Hay River on 27-28 July 2010. Hay River is adjacent to the KFN reserve.
[22] On June 22-23, 2010, technical sessions were held so that Paramount could explain the Type A Water Licence to interested parties. KFN did not attend these sessions, either in person or by phone.
[23] On 24 June 2010, the Board decided to change the location of the public hearing to Yellowknife. There had been no communication by KFN to the Board up to this point. Also on 24 June 2010, the Board decided the Type A Water Licence application would be exempt from a preliminary screening, since the activities that would be authorized under the Type A Water Licence had been the subject of an environmental assessment during EA03-005.
[24] On 5 July 2010, the dates for the public hearing were advertised in a newspaper indicating a change of venue from Hay River to Yellowknife. It is an 8-hour drive from Hay River to Yellowknife. On 6 July 2010, the Board notified KFN of the change of venue. A pre-hearing conference was held on 16 July 2010, which KFN did not participate in.
[25] KFN sent two letters to the Board on 16 July 2010 (Chief Fabian Affidavit, Exhibits G and H). In the first letter KFN registered as an intervenor, and in the second KFN requested permission to participate as a First Nation rather than as a member of the public (as a member of the public would only allow them one hour to make submissions). The second letter also requested: reasonable notice to allow KFN to prepare for the hearing; that the hearing be held in Hay River; and funding to assist KFN to participate in the hearing.
[26] On 26 July 2010, the Board informed KFN that the hearing would proceed as scheduled in Yellowknife (Chief Fabian Affidavit, Exhibit I). The Board also stated that it would not provide funding and that KFN should raise the issue of funding with the Minister. The letter also advised that KFN had missed the 19 July 2010 deadline to provide written submissions and the 23 July 2010 deadline to submit a presentation. The Board said that it was willing to hear argument from KFN, but it would reserve the right to rule inadmissible any new evidence that KFN submitted.
[27] By way of letter dated 26 July 2010 (Chief Fabian Affidavit, Exhibit J), KFN informed the Board that, due to the lack of reasonable notice and lack of certainty that its evidence would be accepted by the Board, KFN would not be able to participate in the hearing. The letter also said that KFN did not consider it appropriate to provide the evidence of elders and traditional knowledge by way of teleconference, and that it did not consider it fair that if KFN did provide evidence it could be considered inadmissible by the Board because of the time of which it was tendered. The letter urged to Board to hold a hearing on the KFN reserve in September, 2010. The Board did not respond to this letter.
[28] On 23 August 2010, KFN sent a letter to the Minister requesting a meeting to discuss how KFN might engage in meaningful consultation on the Project and proposed that the parties enter into a Consultation and Accommodation Protocol for the Project (Chief Fabian Affidavit, Exhibit K). The letter said that KFN was concerned about impacts on caribou calving grounds, hunting, fishing and fresh water in the Project area. The letter also explained the difficulties that KFN was encountering with the Board’s process and that the Board had advised KFN to consult with the Minister. KFN also attached an “Agreement to Negotiate a Consultation and Accommodation Protocol in respect of the Paramount Project” (Chief Fabian Affidavit, Exhibit L). KFN did not think that the Consultation and Accommodation Protocol would duplicate the Board’s process because, in KFN’s view, the Board did not consider itself to have any authority to conduct consultation.
[29] On 30 August 2010, the Board circulated a draft Type A Water Licence based on the July 27 and 28 hearing, in which KFN did not participate. KFN views the draft Type A Water Licence as only having covered 55 wells, but the Attorney General says that this is incorrect and that the draft Type A Water Licence included all “existing and planned wells,” for a total of 92. These are the same wells that were included in the scope of EA03-005. The Board provided all parties with a deadline of 29 September 2010 to submit comment on the draft Type A Water Licence.
[30] On 8 September 2010, the Minister replied to the 23 August 2010 KFN letter and advised KFN to identify to the Board the impacts the Project would have on KFN’s Aboriginal and Treaty rights (Chief Fabian Affidavit, Exhibit N). The letter said the Minister intended to rely on the Board’s process to assist the Crown is discharging its duty to consult and urged KFN to participate in the Board’s process. The letter concluded by stating the Minister would meet with KFN to discuss how to work together on Crown consultation, including any funding that might be available.
[31] On 22 September 2010, KFN filed a Motion for a Ruling with the Board and submitted comments on the terms and conditions of the draft Type A Water Licence (Chief Fabian Affidavit, Exhibit D). The Attorney General says that all of KFN’s comments were about concerns addressed in EA03-005. In the Motion for a Ruling, KFN requested that the Board conduct a preliminary screening of the application, that the Board follow the Act’s rules of procedure, and the AANDC (then INAC) and the Board consult KFN with respect to the impacts of the Project.
[32] In a letter dated 8 October 2010 (Chief Fabian Affidavit, Exhibit O), KFN again informed the Minister that it was having difficulty with the Board’s consultation process and did not agree that the Board’s process could be relied upon to discharge the Minister’s duty to consult. KFN suggested a meeting with the Minister on October 18 or 19, 2010 to discuss how consultation could be carried out and whether any funding was available to assist KFN in participating in the consultation. This meeting did not take place, and the Attorney General says that between 20 October 2010 and the end of November, several unsuccessful attempts were made by the Minister to reschedule the meeting.
[33] The Minister responded on 26 November 2010 (Chief Fabian Affidavit, Exhibit P), stating that a meeting would be held but only after the Board’s ruling on whether to hold another hearing to hear KFN’s specific concerns. The Minister said that if the Board held another hearing, KFN would have an opportunity to make the Board aware of its specific concerns.
[34] On 10 December 2010, the Board issued its Reasons for Decision in response to KFN’s Motion for a Ruling. The Board concluded that the process was fair and had been conducted in accordance with the Act, and that the Board had no authority to conduct consultation and was not responsible for judging the adequacy of consultation. The Board also passed a motion to approve the Type A Water Licence. This was communicated to KFN on 15 December 2010. KFN did not seek to judicially review this decision.
[35] On 13 December 2010, the Board recommended that the Minister approve the Type A Water Licence. The Board included a table with its recommendation showing how it had taken KFN’s concerns into account. On 14 December 2010, KFN confirmed it was available to meet with the Minister to discuss the Reasons for Decision of the Board and to discuss KFN’s concerns (Chief Fabian Affidavit, Exhibit R). On 16 December 2010, the Minister replied that the Minister wished to meet immediately, as there was a 30-day time limit on whether to approve the Type A Water Licence once the recommendation was received from the Board (Chief Fabian Affidavit, Exhibit S).
[36] On 17 December 2010, KFN replied that it was unable to meet immediately due to the Christmas break from December 20, 2010 to January 4, 2011, but suggested a meeting on 11 January 2011 (Chief Fabian Affidavit, Exhibit T).
[37] On January 6-7, 2011, the Minister’s office was in touch with Chief Fabian and Victoria St. Jean, who is the Lands and Resource Manager for KFN, to ask them to communicate their concerns in advance of the meeting. No concerns were communicated before the meeting. On 7 January 2011, the Minister requested a 30-day extension on approving the Type A Water Licence so that the meeting and further consultation with KFN could occur.
[38] On 11 January 2011, KFN met with staff from the Minister’s office. During the meeting, the staff posed questions about new and novel concerns arising from the Type A Water Licence. KFN stated that it did not want to limit the discussion to novel impacts and wanted to discuss all potential impacts from the Type A Water Licence. KFN admitted it had no new concerns about the Type A Water Licence that were not already expressed, and insisted it would not engage in further consultation until INAC signed a consultation and accommodation protocol and provided $100,000 in funding. KFN said that, without this, it intended to start the judicial review process (Jenkins Affidavit, Exhibit T).
[39] Following the 11 January 2011 meeting, staff from the Minister’s office concluded that consultation for the Type A Water Licence was adequate “based on the previous environmental assessments, the Board process, as well as the Crown’s interactions with the First Nation” (Jenkins Affidavit, paragraph 18).
[40] On 14 January 2011, KFN sent a follow-up letter (Exhibit V, Affidavit of Chief Fabian) to the Minister expressing concern that the Minister had only met with KFN after the Board recommended the approval of the Type A Water Licence, instead of meeting with KFN in August, as originally requested in its letter dated 23 August 2010. KFN stated it did not agree that meaningful consultation could result from a one-day meeting for a Type A Water Licence that covers 55 wells and lasts for 15 years. KFN proposed that meaningful consultation take place over the course of a couple months. The letter included a request for the amount of $100,000 to assist with consultation, and set out a budget of what KFN estimated would be required. The letter said that KFN was willing to work with the Minister and wished to negotiate a solution to the lack of consultation.
[41] The Minister did not reply to the 14 January 2011 letter.
[42] On approximately 19 January 2011, the Board informed KFN that the Minister had extended the timeline for consideration of the Type A Water Licence by an additional 30 days. Despite the extension, the Minister did not communicate with KFN.
[43] On 11 February 2011, the Minister made the decision to approve the Type A Water Licence and listed 60 oil and gas wells. The final Type A Water Licence added 5 more wells than were originally listed and commented on in the draft licence provided on 30 August 2010.
[44] KFN says that only during cross-examination for this judicial review, on 22 March 2012, was KFN informed by Paramount that the Type A Water Licence is for 92 wells, and not for 55 or 60 as listed in the draft and final Type A Water Licence. The Respondents say that this is incorrect, and that the Type A Water Licence always contemplated all 92 wells.
The Board’s Decision on KFN’s Motion for a Ruling
[45] The Board issued its Reasons for Decision in response to KFN’s Motion for a Ruling on 10 December 2010. The Board noted that, by way of letter dated 26 July 2010, it had changed the venue for the hearings to Yellowknife because it had arranged for South Slavey translation and to connect some participants by teleconference. KFN responded, repeating its concerns, and had not participated in the hearing.
A) Was the process leading to the hearing fair?
[46] The problems raised by KFN in its Motion for a Ruling relate to the notice and location of the hearing. The Board found that KFN did have notice of the hearing, and that the Board had conducted the process in accordance with subsection 63(2) of the Act.
[47] The Board found that KFN’s active participation did not commence until 16 July 2010, although the Board had been forwarding all materials since 18 March 2010. Up to this point, the parties actively participating were Paramount, the Minister, and a variety of other government departments. All these parties, except Paramount, were based in Yellowknife, so the Board decided to move the hearing there. The Act gives the Board discretion as to where to hold the public hearing. The Board found that KFN had enough time (three weeks) to arrange to get to Yellowknife or participate by teleconference.
[48] The Board concluded that the change of location of the hearing was due to KFN’s late arrival on the scene and, had KFN participated earlier, the hearing would have been held in Hay River. The Board made attempts to retain translators so that KFN could participate by teleconference, but KFN chose not to participate. Thus, the Board concluded that the decision to change the venue was not unfair.
B) Does the Board have a role in Aboriginal consultation and if so was that duty discharged in accordance with the law?
[49] The Board first pointed out that the final decision on the Type A Water Licence is made by the Minister. In the Board’s opinion, it was the Minister who bore the responsibility to make the “final call” on Crown consultation. As the Board understood it, the Crown still had the time and the opportunity to do more consultation, if required.
[50] The Board stated that it did not have the authority or knowledge to determine whether consultation has been sufficient, and that it was not in a position to determine whether the Minister or Paramount properly consulted KFN. There is nothing in the Act that empowers the Board to actively engage in the consultation process.
[51] The Board also noted that KFN had filed no affidavits or other evidence to support its statements about the alleged impacts of the Project. In this position, the Board did not think it possible to determine the potential impacts of the Project, and considered the evidence in support of most of the facts asserted to be very weak.
[52] In conclusion, the Board found that the process was fair, the exemption of the Type A Water Licence from a preliminary screening was justified, and that the Board had no authority to conduct consultation and was not responsible for judging the adequacy of Crown consultation.
ISSUES
[53] The Applicant raises the following issues in this application:
a) Did the Minister breach the duty to consult by not engaging in meaningful consultation before approving the Type A Water Licence?
b) Did the Board’s process satisfy the Minister’s duty to consult?
STANDARD OF REVIEW
[54] As stated by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida], questions regarding the existence and content of the duty to consult and accommodate must be reviewed on the standard of correctness. Although reviewable on a correctness standard, this is a heavily factual determination, and as Justice Yves de Montigny said at paragraphs 90-92 of Ka’a’Gee Tu 2012:
90 Three caveats must be added to this apparently straightforward explanation of the applicable standard of review. First, the duty to consult and accommodate heavily depends on the particular circumstances of each case, and questions of law will therefore often be intertwined with questions of fact. As the Chief Justice stated in Haida, above at paras 61, 63:
(...) The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal...
Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.
91 Second, perfection is not required when assessing the conduct of Crown officials. As is always the case when the standard of reasonableness is applied, the best outcome is not necessarily the benchmark; as long as it can be shown that reasonable efforts have been made to consult and accommodate and that the result is within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, there will be no justification to intervene.
92 Finally, and closely related to the previous observation, the focus should not be on the outcome but rather on the process of consultation and accommodation.
STATUTORY PROVISONS
[55] The following provision of the Act is applicable in this proceeding:
Consultation
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.
[…]
Aboriginal rights
5. (2) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
[…]
Considerations
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.
[…]
Notice of applications
63. (2) A board shall notify affected communities and first nations of an application made to the board for a licence, permit or authorization and allow a reasonable period of time for them to make representations to the board with respect to the application.
Heritage resources
64. (1) A board shall seek and consider the advice of any affected first nation and, in the case of the Wekeezhii Land and Water Board, the Tlicho Government and any appropriate department or agency of the federal or territorial government respecting the presence of heritage resources that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.
[…]
Purposes
114. The purpose of this Part is to establish a process comprising a preliminary screening, an environmental assessment and an environmental impact review in relation to proposals for developments, and
[…]
(c) to ensure that the concerns of aboriginal people and the general public are taken into account in that process.
Guiding principles
115. The process established by this Part shall be carried out in a timely and expeditious manner and shall have regard to
[…]
(c) 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.
Consultation
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.
[…]
Droits des autochtones
5. (2) Il est entendu que la présente loi ne porte pas atteinte à la protection des droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada découlant de leur reconnaissance et de leur confirmation au titre de l’article 35 de la Loi constitutionnelle de 1982.
[…]
Éléments à considérer
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.
[…]
Avis à la collectivité et à la première nation
63. (2) Il avise la collectivité et la première nation concernées de toute demande de permis ou d’autorisation dont il est saisi et leur accorde un délai suffisant pour lui présenter des observations à cet égard.
Ressources patrimoniales
64. (1) L’office doit demander et étudier l’avis de toute première nation concernée, des ministères et organismes compétents des gouvernements fédéral et territorial et, s’agissant de l’Office des terres et des eaux du Wekeezhii, du gouvernement tlicho au sujet des ressources patrimoniales susceptibles d’être touchées par l’activité visée par la demande de permis dont il est saisi.
[…]
Objet
114. La présente partie a pour objet d’instaurer un processus comprenant un examen préalable, une évaluation environnementale et une étude d’impact relativement aux projets de développement et, ce faisant :
[…]
c) de veiller à ce qu’il soit tenu compte, dans le cadre du processus, des préoccupations des autochtones et du public en général.
Principes directeurs
115. Le processus mis en place par la présente partie est suivi avec célérité, compte tenu des points suivants :
[…]
c) 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.
ARGUMENTS
KFN
The Duty to Consult
[56] The source of the duty to consult is the honour of the Crown (Haida, above). As the Supreme Court of Canada said in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto] at paragraphs 32-33:
32 The duty to consult is grounded in the honour of the Crown. It is a corollary of the Crown's obligation to achieve the just settlement of Aboriginal claims through the treaty process. While the treaty claims process is ongoing, there is an implied duty to consult with the Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation: Haida Nation, at para. 20. As stated in Haida Nation, at para. 25:
Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.
33 The duty to consult described in Haida Nation derives from the need to protect Aboriginal interests while land and resource claims are ongoing or when the proposed action may impinge on an Aboriginal right. Absent this duty, Aboriginal groups seeking to protect their interests pending a [page 670] final settlement would need to commence litigation and seek interlocutory injunctions to halt the threatening activity. These remedies have proven time-consuming, expensive, and are often ineffective. Moreover, with a few exceptions, many Aboriginal groups have limited success in obtaining injunctions to halt development or activities on the land in order to protect contested Aboriginal or treaty rights.
[57] The test for the duty to consult consists of 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 might adversely affect an Aboriginal claim or right (Rio Tinto at paragraph 31). The third element of the test requires the claimant to show a causal relationship between the proposed decision and the potential for adverse impacts on pending Aboriginal rights (Rio Tinto at paragraph 45).
[58] The content of the duty to consult increases with the strength of the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal or Treaty right (Haida at paragraphs 43-45; Rio Tinto at paragraph 36; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 [Taku River]).
[59] KFN submits that the first element of the test is met in this case; the Crown has real knowledge of KFN’s claim, as a comprehensive claim is currently in negotiations. The second step is also met as the Crown conduct at issue is the decision by the Minister to approve the Type A Water Licence. The third step is also met, as KFN has raised concerns with the Board and the Minister about potential impacts of the Type A Water Licence in the Naghah Zhie area.
[60] KFN says that even if it had not been able to provide specific information on the potential adverse impacts to the Naghah Zhie area, this does not mean that the third element of the test has not been met, and does not preclude meaningful consultation. As with the situation in Yellowknives Dene First Nation v Canada (Attorney General), 2010 FC 1139 [Yellowknives], the Board and the Crown’s denial of responsibility for consultation in the present case, and their refusal to engage with KFN, limited KFN’s ability to fully articulate the potential adverse impacts of the Type A Water Licence on KFN’s Aboriginal and treaty rights in the area.
[61] The duty to consult relates to current government conduct or decision, not past conduct (Haida at paragraph 78). KFN is concerned with the decision to approve the Type A Water Licence for wells that have not yet been drilled and water that has not yet been accessed. The fact that consultation may have occurred on past Type A Water Licence applications does not satisfy the duty to consult on the Type A Water Licence at issue in this application.
[62] Furthermore, the duty to consult goes beyond the Board’s process. For example, in Ka’a’Gee Tu First Nation v Canada (Attorney General), 2007 FC 763 [Ka’a’Gee Tu 2007], even though the review process in that case was satisfactory, the Minister’s subsequent actions of modifying the recommendations breached the duty to consult.
[63] KFN points out that the source of the duty to consult means that the land claims process is not the appropriate forum to discharge that duty. KFN’s participation in the land claims process, either through its own process or as part of the Deh Cho First Nations, does not satisfy the Crown’s duty to consult on the Type A Water Licence because it will take a number of years to negotiate a land claim agreement. By then, the infringing activity will almost certainly be complete. There is also no guarantee a land claim agreement will be ratified and entered into. The duty to consult is designed to protect Aboriginal interests while land and resource claims are ongoing.
[64] KFN says it has a strong prima facie claim to the Project area, as evidenced by Treaty 8 and its long history of negotiating a land claim through the Dene Metis Land Claim, the Deh Cho Claim, the KFN TLE, the KFN Claim and the evidence in the decision of R. v Paulette, [1977] 2 SCR 628 [Paulette].
[65] As regards the seriousness of the impact, KFN submits that it is difficult to assess what this would be in the absence of a proper consultation process. However, it was determined in the Cameron Hills Aquatic Report that “…there is potential for serious adverse environmental impacts to water due to the potential for spills and sedimentation of waterways from erosion as a result of Paramount’s operations in Cameron Hills” (St. Jean Affidavit, Applicant’s Record, paragraph 8). This report states that “the lakes and rivers that are fed by the Cameron River are the backbone of the way of life in this area. It is of the utmost importance that this watershed is maintained in a pollution free state to support the people and their way of life” (St. Jean Affidavit, paragraph 8). KFN points out that the Type A Water Licence is for 92 wells over a period of approximately 15 years, and it is fair to assume that the impacts will be serious.
[66] KFN has a strong prima facie claim and the seriousness of the potential adverse impacts of the Type A Water Licence warrant “something significantly deeper than mere consultation” (Haida at paragraph 79). Regardless, KFN submits that the Crown’s conduct does not meet even the minimum standard of consultation.
[67] In Yellowknives, the decision only involved an exploration permit for five years, and yet “meaningful consultation” was the standard of consultation required. Also, an exploration permit like the one at issue in Yellowknives has less of an impact than a Type A Water Licence such as the one at issue in this application.
[68] KFN says that it occupies a similar position to the claimant in Taku River, above:
32 In summary, the TRTFN's claim is relatively strong, supported by a prima facie case, as attested to by its acceptance into the treaty negotiation process. The proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title; however, the potential for negative derivative impacts on the TRTFN's claims is high.