Athabasca Regional Government v. Canada (Attorney General)

Athabasca Regional Government v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2010-09-22
Neutral citation
2010 FC 948
File numbers
T-1234-09
Decision Content
Federal Court
Cour fédérale
Date: 20100922
Docket: T-1234-09
Citation: 2010 FC 948
Ottawa, Ontario, September 22, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
FOND DU LAC DENESULINE FIRST NATION,
BLACK LAKE DENESULINE FIRST NATION,
HATCHET LAKE DENESULINE FIRST NATION and
THE NON-FIRST NATION ABORIGINAL
PROVINCIAL COMMUNITIES OF CAMSELL PORTAGE,
URANIUM CITY, STONY RAPIDS and WOLLASTON LAKE
(known collectively as the “Athabasca Regional Government”)
Applicants
and
ATTORNEY GENERAL OF CANADA and
AREVA RESOURCES CANADA INC.
Respondents
and
CANADIAN NUCLEAR SAFETY COMMISSION and
ATTORNEY GENERAL FOR SASKATCHEWAN
Interveners
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 for judicial review of the June 30, 2009 decision (Decision) of the Canadian Nuclear Safety Commission (Commission) to renew the operating licence for Areva Resources Canada Inc.’s McClean Lake Uranium mine and mill under section 24 of the Nuclear Safety and Control Act, S.C., 1997, c. 9 (Act), and the incorporation of the care and maintenance activities at AREVA’s Midwest Uranium Mine into the renewed licence for McClean Lake.
BACKGROUND
[2] Areva Resources Canada Inc. (AREVA) applied to the Commission to renew its McClean Lake Operation Uranium Mine and Mill Operating Licence UMOL-MINEMILL-McCLEAN.04/2009 (McClean Lake Licence), which authorizes AREVA to operate a uranium mine, mill and other required facilities.
[3] AREVA applied for a ten-year licence renewal from May 31, 2009. AREVA also requested that the Commission incorporate the care and maintenance activities at its Midwest Uranium Mine site (Midwest Site) into the McClean Lake Licence and revoke the existing Midwest Uranium Mine Site Preparation Licence (Midwest Licence). Although AREVA anticipates mining the Midwest Site at some time in the future, the Midwest Site is currently not in operation. Rather, it is undergoing environmental assessment with regard to future development.
[4] The Applicants are a group of both First Nation and non-First Nation communities. Three of the Applicants (Fond du Lac Denesuline First Nation, Black Lake Denesuline First Nation, and Hatchet Lake Denesuline First Nation) are Treaty First Nations. The Applicants were granted intervener status in order to participate in the public hearing related to the renewal of the McClean Lake Licence before the Commission scheduled for April 30, 2009.
[5] On April 12, 2009, the Applicants requested an adjournment of Day 2 of the public hearing in order to receive and review disclosure of information and make fully informed submissions and a response to AREVA’s application for renewal. However, the Commission decided to proceed with the public hearing on the planned date, April 30, 2009, and the Applicants participated in this hearing. The Applicants then requested an extension of time to assess and provide submissions in response to information received by them at the hearing on April 30, 2009. The Commission agreed to extend the time for the Applicants to file written submissions to June 8, 2009.
[6] On June 30, 2009, the Commission issued its Decision and granted AREVA’s McClean Lake Licence renewal for a period of eight years. The Commission also incorporated the care and maintenance provisions for the Midwest Site into the McClean Lake Licence for a period of eight years.
[7] On July 30, 2009, the Applicants filed their Notice of Application for judicial review of the Decision.
[8] The Commission was granted intervener status in this matter on December 18, 2009. The Attorney General for Saskatchewan (AGS) was granted intervener status on January 6, 2010.
DECISION UNDER REVIEW
[9] The Commission determined that the issues before it were as follows:
a. Whether AREVA is qualified to carry on the activity that the renewed McClean Lake Licence would authorize;
b. Whether, in carrying on that activity, AREVA would make adequate provision for the protection of the environment, the health and safety of persons, and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.
[10] The Commission determined that AREVA was qualified to carry on the activities authorized in the McClean Lake Licence and was satisfied that AREVA would make adequate provision for protection of the environment, the health and safety of persons, and the maintenance of national security. Accordingly, the Commission renewed AREVA’s McClean Lake Licence until June 30, 2017, pursuant to section 24 of the Act. Furthermore, the Commission also revoked the Midwest Licence pursuant to section 24 of the Act and incorporated the maintenance and caretaking activities at the Midwest Site into the McClean Lake Licence.
[11] Within its Decision, the Commission directed AREVA to create a status report of safety performance after the midpoint of the eight-year licence. Commission staff were also directed by the Commission to prepare a report with regard to compliance activities. Both reports are to be presented at public proceedings of the Commission in June 2013.
Commission Findings
[12] The Decision was premised on the Commission’s findings with regard to AREVA’s proposed measures for protection of the environment, the health and safety of persons, as well as national security and international obligations to which Canada has agreed.
[13] The Commission first examined AREVA’s operational performance. To make its determination, the Commission divided the operational performance safety aspects into four sub-programs: mine operations; mill operations; waste management; and packaging and transport. Upon examination of these sub-programs, the Commission was satisfied that “facility operations are effectively controlled with the safety programs in place and that they do not pose an unreasonable risk to the health and safety of persons, the environment and national security.”
[14] Next, the Commission considered the radiation protection offered by AREVA by examining its past performance and future plans. The Commission was satisfied that AREVA has made, and will continue to make, adequate provision for the protection of both workers and the public from radiation at the McClean Lake Operation.
[15] In considering non-radiological health and safety, the Commission concluded that AREVA’s Occupational Health and Safety Program and its implementation met the requirements. Furthermore, the Commission was satisfied with regard to AREVA’s provision for the protection of persons from conventional hazards.
[16] The Commission also considered the environmental protections undertaken by AREVA concerning air quality, surface water and environmental monitoring, and it examined the impact of operations at McClean Lake on the environment. The Commission determined that AREVA had made and is making adequate provision to protect the environment at McClean Lake and that adequate monitoring is performed to determine the effects of operations on the environment.
[17] The Commission was also satisfied with AREVA’s quality management and training, as well as its emergency preparedness capabilities, its fire protection abilities and its nuclear security. Similarly, the Commission determined that AREVA was in compliance with its international obligations and that AREVA had provided the Commission with all of the reports and information necessary with regard to McClean Lake.
[18] The Commission then considered AREVA’s Preliminary Decommission Plan and associated cost estimate and determined that these were acceptable, although a proposed condition of the licence was that AREVA review its preliminary decommission plan every five years and maintain an adequate financial guarantee.
[19] The Commission then went on to consider AREVA’s public information programs. AREVA says that its public information programs operate in a variety of ways, including through consultation activities and informational meetings. According to AREVA, the primary goal of its public consultation and information program “is to ensure that the environmental, health and safety issues that may arise as a result of AREVA’s activities are effectively communicated to the public.”
[20] The Commission inquired about AREVA’s visits to northern communities and asked whether AREVA followed-up with members of the public who asked questions or offered comments at meetings. The Commission was satisfied that AREVA attempts to answer questions and provides informal opportunities for the public to bring forward comments or concerns. Moreover, AREVA noted that it provides many opportunities and invitations to meet with specific community leaders in northern Saskatchewan.
[21] Some interveners, however, including the Applicants, expressed concern that the goal of AREVA’s public information program seemed to be the provision of information to promote an understanding of its activities at McClean Lake, as opposed to engaging in meaningful consultation with impacted communities. The Commission, however, stated that it was “satisfied that AREVA has in place an adequate public information program”, but noted that, “based on the concerns expressed by some interveners, the Commission invites AREVA to provide meaningful information in a clear and understandable manner to northern communities that are impacted by the McClean Lake Operation.” Furthermore, the Commission stated that it “also invites AREVA to respond to concerns expressed by impacted northern communities in a clear and rapid manner.”
[22] Two interveners before the Commission contended that a duty of consultation existed in this instance. The Applicants suggested that the Commission is a delegate of the provincial Crown for the purpose of consultation and that both AREVA and the provincial Crown have failed in their duties to consult and accommodate the interests of the Applicants. The Applicants submitted that the Commission’s role is to “consider whether the Crown has satisfied its constitutional duty respecting consultation and accommodation of Aboriginal interests” and that “there is no evidence of Crown consultation here.”
[23] The AGS’s position, however, as stated by the Commission was that “[the province] is cognizant of its constitutional obligations regarding the duty to consult, and that any issues with respect to the discharge of that duty by the province, are beyond the constitutional bounds of the Commission’s jurisdiction and should be dealt with by Saskatchewan.”
[24] The Commission determined that, due to the submissions and issues before it, “it is necessary for the Commission to provide some general comments respecting its view of the role of the Commission with regard to the duty to consult Aboriginal peoples, and to apply that reasoning to the arguments raised in this application.” While the Commission stated that it is cognizant of the role that Parliament has set for it, it went on to say that “[a]s an agent of the Crown, the Commission is called upon to make a decision with respect to this licensing matter and it is incumbent on the Commission to ensure that its decision accords with the honour of the Crown.”
[25] The Commission noted that the concerns of the interveners who participated in the public hearing related mostly to information and the ability of community members to understand the relevant information and that, “in this case, the submissions of the interveners did not indicate that there were specific unresolved impacts on rights, which could be addressed within the authority of the Commission’s powers.”
[26] Furthermore, while the interveners in the public hearing sought funding, and to compel the Commission, the province or AREVA to take certain actions with respect to their capacity concerns, the Commission noted that it does not have the authority to address such matters. Furthermore, the Commission held that “in regards to the consultative efforts and obligations of the province of Saskatchewan, it is not the role of the Commission to oversee matters over which it has no authority, such as resource allocation matters, which are not engaged by the Commission’s licensing decision.”
[27] As regards the duty to consult, the Commission concluded as follows:
The Commission is satisfied that its process has provided an invitation to the intervenors to make submissions and participate in the regulatory process, and the Commission hearing process provided a forum in which concerns could be expressed and dealt with. In this matter, in response to concerns about the licensing action and knowledge gaps with respect to the information provided and understanding of the matters in issue, the Commission granted an extension of time to the ARG [Athabasca Regional Government] to provide it with time to seek, obtain and make submissions on the matters before the Commission. This has also provided the possibility for more discussions and engagement by the CNSC staff and AREVA, with the ARG in particular.
The Commission is satisfied that its process has been adequate to address the concerns expressed relating to the impact communities receiving the information required and being able to speak to the matters in issue regarding the scope of this specific hearing. The Commission is satisfied that the intervenors have been informed of the Commission process and of the licensing action at issue, and have had a full opportunity to express their concerns and identify issues. The Commission has heard the intervenors, and has considered all of the submissions in making its decision. In this context, the Commission is satisfied that, to the extent that a duty to consult was engaged, it was fulfilled in this case respecting the licensing action, by the Commission process and by the opportunities that were afforded for consultation within that process.
[28] The Commission then considered the inclusion of the care and maintenance of the Midwest Site in the McClean Lake Licence and determined that
[t]he activities are already authorized by the CNSC and will remain unchanged under the renewed licence for the McClean Lake Operation. As such, an environmental assessment pursuant to the CEAA [Canadian Environmental Assessment Act] is not required.
The Commission was satisfied that an environmental assessment was not required prior to a decision being made on the licence renewal application for McClean Lake.
[29] AREVA requested a licence renewal for a period of ten years and asked the Commission to amend the McClean Lake Licence to incorporate the care and maintenance activities at its Midwest Site. Commission staff explained to the Commission that they expected “the Midwest Site to be included in the McClean Lake Operation licence in a manner similar to the other mine programs associated with the McClean Operation, such as the Sue Mine,” since this approach allows for consistency in programs and controls.
[30] The Commission was satisfied that the effect of revoking the Midwest Licence and including the care and maintenance activities under the McClean Lake Licence “does not in any way alter the activities that have previously been assessed and authorized for the Midwest Site.” The Commission noted further that “having the care and maintenance activities authorized in the licence for the McClean Lake Operation does not involve the transfer of a licence, which is prohibited under subsection 24(8) of the [Nuclear Safety and Control Act] NSCA.”
[31] Accordingly, the Commission was satisfied that AREVA met the requirements of subsection 24(4) of the Act, and it renewed AREVA’s McClean Lake Licence until June 30, 2017. This Licence incorporates the maintenance and caretaking activities at the Midwest Site in the same operating licence. Consequently, the Commission revoked the Midwest Licence.
ISSUES
[32] The issues on the application can be summarized as follows:
1. Does the Commission have the jurisdiction to consider whether a constitutional duty to consult was owed to the Applicants and whether that duty was met on the facts before it?
2. If the above is answered affirmatively, did the Commission err in concluding that, to the extent the above duty to consult was owed, the duty was met?
3. Did the Commission err in revoking the Midwest Licence and incorporating the care and maintenance activities authorized under that licence into the renewed McClean Lake Licence?
STATUTORY PROVISIONS
[33] The following provisions of the Act are applicable in these proceedings:
Establishment of Commission
8. (1) There is hereby established a body corporate to be known as the Canadian Nuclear Safety Commission.
Agent of Her Majesty
(2) The Commission is for all its purposes an agent of Her Majesty and may exercise its powers only as an agent of Her Majesty.
Objects
9. The objects of the Commission are
(a) to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in order to
(i) prevent unreasonable risk, to the environment and to the health and safety of persons, associated with that development, production, possession or use,
(ii) prevent unreasonable risk to national security associated with that development, production, possession or use, and
(iii) achieve conformity with measures of control and international obligations to which Canada has agreed; and
(b) to disseminate objective scientific, technical and regulatory information to the public concerning the activities of the Commission and the effects, on the environment and on the health and safety of persons, of the development, production, possession and use referred to in paragraph (a).
Licences
24. (1) The Commission may establish classes of licences authorizing the licensee to carry on any activity described in any of paragraphs 26(a) to (f) that is specified in the licence for the period that is specified in the licence.
Application
(2) The Commission may issue, renew, suspend in whole or in part, amend, revoke or replace a licence on receipt of an application
(a) in the prescribed form;
(b) containing the prescribed information and undertakings and accompanied by the prescribed documents; and
(c) accompanied by the prescribed fee.
Refund of fees
(3) The Commission may, under the prescribed circumstances, refund all or part of any fee referred to in paragraph (2)(c).
Conditions for issuance, etc.
(4) No licence may be issued, renewed, amended or replaced unless, in the opinion of the Commission, the applicant
(a) is qualified to carry on the activity that the licence will authorize the licensee to carry on; and
(b) will, in carrying on that activity, make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.
Terms and conditions of licences
(5) A licence may contain any term or condition that the Commission considers necessary for the purposes of this Act, including a condition that the applicant provide a financial guarantee in a form that is acceptable to the Commission.
Application of proceeds of financial guarantee
(6) The Commission may authorize the application of the proceeds of any financial guarantee referred to in subsection (5) in such manner as it considers appropriate for the purposes of this Act.
Refund
(7) The Commission shall grant to any person who provided a financial guarantee under subsection (5) a refund of any of the proceeds of the guarantee that have not been spent and may give the person, in addition to the refund, interest at the prescribed rate in respect of each month or fraction of a month between the time the financial guarantee is provided and the time the refund is granted, calculated on the amount of the refund.
Licence not transferable
(8) A licence may not be transferred.
Constitution
8. (1) Est constituée une personne morale appelée la Commission canadienne de sûreté nucléaire.
Mandataire de Sa Majesté
(2) La Commission est mandataire de Sa Majesté et ne peut exercer ses attributions qu’à ce titre.
Mission
9. La Commission a pour mission :
a) de réglementer le développement, la production et l’utilisation de l’énergie nucléaire ainsi que la production, la possession et l’utilisation des substances nucléaires, de l’équipement réglementé et des renseignements réglementés afin que :
(i) le niveau de risque inhérent à ces activités tant pour la santé et la sécurité des personnes que pour l’environnement, demeure acceptable,
(ii) le niveau de risque inhérent à ces activités pour la sécurité nationale demeure acceptable,
(iii) ces activités soient exercées en conformité avec les mesures de contrôle et les obligations internationales que le Canada a assumées;
b) d’informer objectivement le public — sur les plans scientifique ou technique ou en ce qui concerne la réglementation du domaine de l’énergie nucléaire — sur ses activités et sur les conséquences, pour la santé et la sécurité des personnes et pour l’environnement, des activités mentionnées à l’alinéa a).
Catégories
24. (1) La Commission peut établir plusieurs catégories de licences et de permis; chaque licence ou permis autorise le titulaire à exercer celles des activités décrites aux alinéas 26a) à f) que la licence ou le permis mentionne, pendant la durée qui y est également mentionnée.
Demande
(2) La Commission peut délivrer, renouveler, suspendre en tout ou en partie, modifier, révoquer ou remplacer une licence ou un permis lorsqu’elle en reçoit la demande en la forme réglementaire, comportant les renseignements et engagements réglementaires et accompagnée des pièces et des droits réglementaires.
Remboursement
(3) Dans les cas réglementaires, la Commission peut rembourser la totalité ou une partie des droits visés au paragraphe (2).
Conditions préalables à la délivrance
(4) La Commission ne délivre, ne renouvelle, ne modifie ou ne remplace une licence ou un permis que si elle est d’avis que l’auteur de la demande, à la fois :
a) est compétent pour exercer les activités visées par la licence ou le permis;
b) prendra, dans le cadre de ces activités, les mesures voulues pour préserver la santé et la sécurité des personnes, pour protéger l’environnement, pour maintenir la sécurité nationale et pour respecter les obligations internationales que le Canada a assumées.
Conditions des licences et des permis
(5) Les licences et les permis peuvent être assortis des conditions que la Commission estime nécessaires à l’application de la présente loi, notamment le versement d’une garantie financière sous une forme que la Commission juge acceptable.
Affectation du produit de la garantie financière
(6) La Commission peut autoriser l’affectation du produit de la garantie financière fournie en conformité avec le paragraphe (5) de la façon qu’elle estime indiquée pour l’application de la présente loi.
Remboursement
(7) La Commission rembourse à la personne qui a fourni la garantie la partie non utilisée de celle-ci; le cas échéant, elle peut ajouter les intérêts calculés au taux réglementaire sur le montant du remboursement, pour chaque mois ou partie de mois entre le moment où la garantie a été donnée et celui du remboursement.
Incessibilité des licences et permis
(8) Les licences et les permis sont incessibles.
[34] The following provision of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 is also applicable in these proceedings:
Recognition of existing aboriginal and treaty rights
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Definition of "aboriginal peoples of Canada"
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
Land claims agreements
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
Aboriginal and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Confirmation des droits existants des peuples autochtones
35. (1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.
Définition de « peuples autochtones du Canada »
(2) Dans la présente loi, « peuples autochtones du Canada » s'entend notamment des Indiens, des Inuit et des Métis du Canada.
Accords sur des revendications territoriales
(3) Il est entendu que sont compris parmi les droits issus de traités, dont il est fait mention au paragraphe (1), les droits existants issus d'accords sur des revendications territoriales ou ceux susceptibles d'être ainsi acquis.
Égalité de garantie des droits pour les deux sexes
(4) Indépendamment de toute autre disposition de la présente loi, les droits — ancestraux ou issus de traités — visés au paragraphe (1) sont garantis également aux personnes des deux sexes.
STANDARD OF REVIEW
[35] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[36] The first issue before the Court is whether the Commission has the jurisdiction to consider whether a duty to consult was owed to the Applicants. Issues of true jurisdiction or vires are to be considered on a standard of correctness. See Dunsmuir, above, at paragraph 59. According to Dunsmuir, questions of true jurisdiction arise where a tribunal must determine whether its statutory grant of power gives it the authority to decide a certain issue. In my view, this issue was before the Commission. Hence, whether the Commission has the jurisdiction to consider whether a duty to consult was owed to the Applicants will be reviewed on a standard of correctness.
[37] If it is determined that the Commission had the jurisdiction to determine the duty to consult in this instance, the review of the Commission’s Decision as to whether such a duty was owed to the Applicants and whether this duty was properly discharged is reviewable on a standard of reasonableness. See Brokenhead Ojibway Nation v. Canada (Attorney General), 2009 FC 484, [2009] F.C.J. No. 608 (Brokenhead) at paragraphs 17-18.
[38] The final issue before the Court is whether the Commission erred in revoking the Midwest Licence and incorporating the care and maintenance activities authorized under that licence into the renewed McClean Lake Licence. This issue is one of statutory interpretation in that the Court must consider whether the Commission erred in its interpretation of subsection 24(8) of the Act.
[39] According to Dunsmuir, above, legal questions of central importance to the legal system as a whole and outside a decision-maker’s specialized area of expertise attract scrutiny on a correctness standard. However, questions of law that do not rise to this level may be compatible with a reasonableness standard. See Dunsmuir, above, at paragraphs 55 and 60.
[40] Considering whether the issue of statutory interpretation requires review on a standard of correctness or a standard of reasonableness necessitates consideration of the factors laid out by the Supreme Court of Canada in paragraph 64 of Dunsmuir, above, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal; (3) the nature of the question at issue; and (4) the expertise of the tribunal. The Supreme Court directs that in many cases it will not be necessary to consider all of these factors. I believe that this is such a case.
[41] According to paragraph 54 of Dunsmuir, above, deference is generally owed where a tribunal is interpreting its own statute or statutes closely connected to its function with which it will be particularly familiar. In this instance, the Commission is interpreting its enabling statute. As such, the Commission can be said to have relative expertise with regard to the Act.
[42] Furthermore, in this instance, the nature of the question at issue (the validity of the renewal of a licence and amalgamating activities within that licence), the purpose of the Commission (in part, to dispense licences under the Act) as well as the expertise of the Commission, suggest that reasonableness is the appropriate standard upon which to review the Commission’s interpretation and application of the Act. As such, I am satisfied that a standard of reasonableness is appropriate when considering whether the Commission erred in its interpretation and application of subsection 24(8) of the Act.
[43] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
Jurisdiction of Commission
[44] The Applicants contend that the issue of whether the Commission has the jurisdiction to determine issues pertaining to Aboriginal and treaty rights, or other matters of constitutional law, is dependent on whether the Commission has been granted the power to determine questions of law through its enabling statute. According to Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, [1996] S.C.J. No. 115 (Cooper), “if a tribunal does have the power to consider questions of law, then it follows … that it must be able to address constitutional issues.”
[45] However, in order for a tribunal to address a constitutional issue – for example, an issue under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 – the tribunal must “already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought.” See Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, 81 D.L.R. (4th) 121 (Cuddy Chicks).
[46] The Applicants argue that jurisdiction is to be determined by a variety of practical matters, including the composition and structure of the tribunal, the procedure before the tribunal, the appeal route of the tribunal and the expertise of the tribunal. According to the Supreme Court in Cooper, above, “[t]hese practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature.” Based on these considerations, the Applicants submit that whether a tribunal has the authority to consider questions of law, the duty to consult and other constitutional issues is dependent upon its statutory authority and must be determined on a case-by-case basis.
[47] The Applicants contend that the AGS erred in his determination of the authority of the Commission in his letter of June 8, 2009:
It is the Attorney General’s position that any issues related to the Province’s duty to consult and accommodate Aboriginal peoples and, in particular, any issues related to whether the Province has fulfilled its obligations in connection with decisions related to either McClean Lake or Midwest projects are not within the mandate of the Commission and, in fact, are beyond the constitutional bounds of the Commission’s jurisdiction.
[48] The Applicants rely on the reasoning of Justice Iacobucci in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, [1994] S.C.J. No. 13 (National Energy Board), (QL) at paragraph 60 to suggest that limitations of authority ought to be balanced with other factors when considering issues of federal and provincial overlap:
In defining the jurisdictional limits of the Board, then, this Court must be careful to ensure that the Board’s authority is truly limited to matters of federal concern. At the same time, however, the scope of its inquiry must not be narrowed to such a degree that the function of the Board is rendered meaningless or ineffective.
The Applicants contend that the jurisdictional limitations on the Commission, as suggested by the AGS, would render the function of the Commission meaningless or ineffective.
[49] The Applicants further submit that the AGS is attempting to evade his own responsibility to Aboriginal people by distinguishing himself from the Federal Crown. Furthermore, they say that the AGS is also denying that any consultation was required in this instance.
[50] According to a letter from Saskatchewan’s Ministry of Environment dated April 22, 2009 to Vincent Martin, President and CEO of AREVA, “this type of licence amalgamation would be assessed as not triggering a duty to consult because it does not have the potential to adversely impact the exercise of Aboriginal rights as affirmed by section 35.1 of the Constitution Act, 1982.” Furthermore, the Deputy Minister of the Provincial Ministry of Environment (Deputy Minister) has characterized the licence amalgamation as “an administrative process that has no material impact on the functioning of either site and will not result in any new impacts to the landscape itself.” The Applicants submit that the Provincial Crown’s pre-determination of its duty of consultation based on whether the action in question is administrative in nature is unsupported by law and difficult to reconcile with existing laws.
[51] The Applicants contend that members of the Athabasca Regional Government (ARG) worked to develop a Land Use Plan for the Athabasca region. This plan was communicated to many entities, including the Provincial Crown.
[52] The Applicants say that the Commission erred by failing to determine that the Province of Saskatchewan owed a duty to consult with regard to the licensing of lands identified as hunting, trapping, fishing and gathering lands.
[53] Furthermore, the Applicants submit that if the Commission truly had jurisdiction to address consultation on the Crown’s behalf, then it further erred in failing to consider the lack of Provincial Crown involvement. Moreover, the Commission’s conclusion that “to the extent that a duty to consult was engaged, it was fulfilled in this case” is unreasonable.
Doctrine of Reconciliation
[54] The Applicants also contend that the position of the Provincial Crown with regard to the consultation and accommodation of Aboriginal rights is inconsistent with its own policy. In its publication entitled “The Legal Duty to Consult Aboriginal Peoples Saskatchewan Environment Policy,” Saskatchewan Environment clearly acknowledges its duty to consult with Aboriginal peoples prior to engaging in, or authorizing, activities that could infringe on Aboriginal or treaty rights. The Applicants suggest that the position of Saskatchewan in this application is contrary to “the endorsement of both the Deputy Minister of the Environment and the Attorney General for Saskatchewan.”
[55] Moreover, in the Saskatchewan Environment Policy of 2003, Saskatchewan Environment notes that its legal duty to consult cannot be delegated to a third party and that “the legal duty and final accountability to protect and minimize infringements on constitutionally protected Treaty and Aboriginal rights will continue to be carried by the Crown.”
[56] In this instance, however, the Applicants say that the Government of Saskatchewan has failed to acknowledge or address any existing legal duty. This is incompatible with the doctrine of reconciliation, which seeks to reconcile the pre-existence of Aboriginal societies with the sovereignty of the Crown.
Jurisdiction Conferred by the Act
[57] The Applicants submit that the Act does not provide either an express or implied mandate for the Commission to consider questions of law, constitutional issues or Aboriginal and treaty rights. The objects of the Commission are as follows:
Objects
9. The objects of the Commission are
(a) to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in order to
(i) prevent unreasonable risk, to the environment and to the health and safety of persons, associated with that development, production, possession or use,
(ii) prevent unreasonable risk to national security associated with that development, production, possession or use, and
(iii) achieve conformity with measures of control and international obligations to which Canada has agreed; and
(b) to disseminate objective scientific, technical and regulatory information to the public concerning the activities of the Commission and the effects, on the environment and on the health and safety of persons, of the development, production, possession and use referred to in paragraph (a).
Mission
9. La Commission a pour mission :
a) de réglementer le développement, la production et l’utilisation de l’énergie nucléaire ainsi que la production, la possession et l’utilisation des substances nucléaires, de l’équipement réglementé et des renseignements réglementés afin que :
(i) le niveau de risque inhérent à ces activités tant pour la santé et la sécurité des personnes que pour l’environnement, demeure acceptable,
(ii) le niveau de risque inhérent à ces activités pour la sécurité nationale demeure acceptable,
(iii) ces activités soient exercées en conformité avec les mesures de contrôle et les obligations internationales que le Canada a assumées;
b) d’informer objectivement le public — sur les plans scientifique ou technique ou en ce qui concerne la réglementation du domaine de l’énergie nucléaire — sur ses activités et sur les conséquences, pour la santé et la sécurité des personnes et pour l’environnement, des activités mentionnées à l’alinéa a).
[58] Based on these objects, it appears that the Commission may consider matters of fact. There is nothing in the Act, however, to suggest that decisions of law ought to be made with regard to Aboriginal and treaty rights. Nevertheless, the Applicants acknowledge that “Courts and the Commission have found that they perform a Federal Crown function and as such, the honour of the Crown must be upheld, and that the Commission must itself act in accordance with s. 35 of the Constitution Act, 1982 and its imperatives.”
[59] Notwithstanding such findings, the Applicants say that the Commission has no jurisdiction to determine that it has jurisdiction to deal with consultation on behalf of the Crown or that its process was the appropriate forum in which to deal with these issues.
[60] Alternatively, if the Commission does have jurisdiction to consider questions of law, the Applicants contend that the Commission’s statements that it “has the jurisdiction to deal with consultation on behalf of the Crown”, and that “its process is the appropriate forum in which to deal with such issues” are erroneous. Indeed, these determinations would usurp the quasi-judicial funct