The Federal Court of Appeal affirmed a lower court decision relating to approval of the Lower Churchill Hydroelectric Generation Project. In April 2013, the Federal Court dismissed an application for judicial review brought by the Innu of Ekuanitshit in relation to an Order in Council made pursuant to the Canadian Environmental Assessment Act authorizing the project. The OIC approved the federal government’s response to a joint review panel report concerning the Project. The Court of Appeal held that the chambers judge made no reviewable error in regards to whether the Governor in Council and the responsible authorities complied with the CEAA. The chambers judge also did not err in his findings about the Crown’s duty to consult. The consultation conducted to date was proportionate to the strength of the Appellant’s claim and the seriousness of the potentially adverse impacts of the Project. The Court of Appeal affirmed that the Crown’s duty to consult could be satisfied, in part, through the environmental impact assessment process.

The appellant Council of the Innu of Ekuanitshit is an Indian band located in Quebec. They participated in the process under the CEAA related to the Lower Churchill Hydroelectric Generation Project, and obtained participant funding. The proponent of the Project is Nalcor, a Crown corporation (formerly known as Newfoundland and Labrador Hydro) wholly owned by the Government of Newfoundland and Labrador. The Project involves hydroelectric facilities at Gull Island and Muskrat Falls, and interconnecting transmission lines to the existing Labrador grid. Due to the nature of the Project, the CEAA process involved a panel review, the most comprehensive assessment available under CEAA, and a Joint Review Panel was created.

There are five stages to the CEAA process. The Innu of Ekuanitshit applied for judicial review at the conclusion of the fourth stage. On March 12, 2012, the Governor in Council made an Order in Council (C.P. 2012-285) approving the Response to the Joint Review Panel’s report. The Response sets out the conclusion that the significant adverse environmental effects of the Project are justified by its benefits, and described the mitigation measures that are required.

The application for judicial review was dismissed in April 2013. The decision of Justice Scott was reported at Conseil des Innus de Ekuanitshit v. Canada, 2013 FC 418, and summarized in our 30 May 2013 e-Newsletter. Scott J. concluded that the Innu of Ekuanitshit were indirectly challenging the scoping decision of the Minister of Environment to conduct separate EAs for the Project and the transmission link, and that such a decision was subject to a 30-day limitation period. No extension would be given. Scott J. also dismissed the Innu of Ekuanitshit’s arguments that the Crown respondents failed to properly consider the factors listed in section 16 of the CEAA prior to issuing their decision under s. 37. There was no evidence that the statutory basis called for by the CEAA had been breached. The Joint Review Panel possessed sufficient information to properly assess the likelihood of significant adverse effects of the Project on the Appellant’s current use of the land for traditional purposes. There was sufficient information for the panel to conclude that usage in the Project area is “seasonal, sporadic and of a short duration”. Scott J. also held that there was no reviewable error in relation to the economic feasibility of the Project.

On the issue of whether the Innu of Ekuanitshit had been properly consulted in relation to the Project, Scott J. held that the Crown satisfied its duty to consult. The Crown never questioned the strength of the Innu of Ekuanitshit’s claim. The Appellant had a strong prima facie claim for land use rights. Scott J. held that the judicial review application was premature but, nevertheless, went on to find that the consultation was adequate. The Court specifically found that Crown consultation can take place through the EA process. The Innu of Ekuanitshit participated in the EA process at the planning stage, received funding, and was able to present written and oral submissions. In response to the Appellant’s concerns about the effects of the Project, Nalcor introduced a number of mitigating factors. Scott J. held that “it is clear that the [Appellant’s] concerns were taken seriously and that several mitigating measures were introduced into the Project in response”.

The Innu of Ekuanitshit raised two issues on appeal: (1) whether the chambers judge erred in finding that the decisions of the Governor in Council and the responsible authorities complied with the CEAA and (2) whether the chambers judge erred in relation to the duty to consult issue.

The role of the appellate court is to determine whether the chambers judge identified the appropriate standard of review, and whether he applied it correctly. The Federal Court of Appeal disagreed with the argument of the Innu of Ekuanitshit that the chambers judge had applied a far too deferential standard. The decisions should be reviewed on the reasonableness standard, not the standard of correctness.

The Innu of Ekuanitshit’s arguments relating to compliance with the CEAA were in part based on the suggestion that one of the two plants would be abandoned, since there was no construction date. Boivin J.A. commented that he would share such concerns about the validity of the EA process if the Gull Island plant was abandoned, as the balancing exercise in the Report’s findings would be necessarily compromised. However, there was no evidence to make a finding that the Gull Island plant had in fact been abandoned.

In regards to the duty to consult, the chambers judge made no error in regards to the applicable standard of review. The Court reviewed the leading authorities on the duty to consult, and noted that the parties had the opportunity to make additional submissions on the effect of the Tsilhqot’in Nation decision that was handed down while this appeal was reserved.  Boivin J.A. referred to the Tsilhqot’in Nation decision and the fact that a finding of Aboriginal title had been made. He held:

Once the existence of Aboriginal title has been established, it stands to reason that the level of consultation and accommodation is necessarily higher (Tsilhqot’in Nation). In the case at bar, the issue of Aboriginal title was not directly raised by the appellant.

The Crown always acknowledged that it had a duty to consult the Innu of Ekuanitshit in this case. The issue is whether the consultation process carried out by the Crown was adequate and proportionate to the strength of claim, and the seriousness of the adverse impacts of the Project on the claimed rights. The federal Crown established a framework for consultation with five dialogue phases. The Innu of Ekuanitshit’s participation was active and began early in the process, “in particular through the environmental assessment process”. The Court of Appeal agreed that the environmental assessment process could satisfy, in part, the Crown’s constitutional duties. Boivin J.A. stated:

In Taku River, the Supreme Court held that participation in a forum created for other purposes, such as a social and environmental impact assessment process, may nevertheless satisfy the duty to consult if, in substance, an appropriate level of consultation is provided. This principle was recently explicitly reiterated in Little Salmon at paragraph 39 and in Carrier Sekani at paragraphs 55 to 58. The Supreme Court of Canada, per Justice Binnie, further teaches that, under the appropriate circumstances, the environmental assessment process provided under the CEAA may be applied by the federal government to carry out consultations and fulfill its duty to consult Aboriginal peoples (Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557 at para. 45).

An invitation on the part of the Crown to an Aboriginal group to participate in an environmental assessment is not necessarily sufficient to discharge the Crown of its duty to consult (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388). The Aboriginal group must be consulted “as a First Nation” and not “as members of the general public” (Little Salmon at para. 79). In the case at bar, it would be inaccurate to claim that the appellant did not participate as a First Nation in the environmental assessment process. More specifically, the appellant provided feedback on the contents of Nalcor’s impact study, it was invited to make submissions on the draft agreement on the establishment of a Joint Review Panel and to appoint members. The appellant also received financial assistance from the Participant Funding Program of the Environmental Assessment Agency, which provided it with an opportunity to file its written submissions on Nalcor’s impact study. The appellant also presented its oral submissions in Sept-Îles in 2011 …

The Joint Review Panel found that contemporary land use by the Innu of Ekuanitshit in the Project area was “seasonal, sporadic and of a short duration”, and the adverse impacts would not be significant. Boivin J.A. noted that this finding was not disputed by the Appellant. The factual background and evidence with respect to contemporary use are important elements in assessing the strength of the rights, and the “true impact and seriousness of the potentially adverse impacts of the Project on the appellant’s rights”. Boivin J.A. stated:

As I have noted above, the assessment of whether the duty to consult was met must be carried out on the basis of two inextricably linked elements, namely, the strength of the claim and the severity of the impact of the proposed Project. The Joint Review Panel, after holding its hearings, concluded that the appellant’s current interests in the Project area were seasonal, sporadic and of short duration. Furthermore, if the use and occupation of the lands claimed for traditional purposes is not challenged by either the federal government or Nalcor, I would add that the evidence in the record adduced by the appellant in support of the interest of the Innu of Ekuanitshit in the Project zone remains, on the whole, limited.

The Court of Appeal held that the chambers judge made no reviewable error in finding that the appellant’s challenge was premature. The federal Crown’s consultation has not been completed, and will remain ongoing until the final phase. The consultation process may lead to a duty to accommodate. It is therefore expected that, at each stage, the Crown will continue to honourably fulfill its duty to consult the Innu of Ekuanitshit and, if indicated, accommodate their legitimate concerns.

The chambers judge therefore did not err in finding that the Innu of Ekuanitshit had been consulted in an adequate manner. The consultation conducted to date meets the idea of “proportionate balancing” referred to in Haida and Tsilhqot’in.  Boivin J.A. summarized his conclusions as follows:

In view of the foregoing and taking into account the following: (i) the unfolding of the environmental assessment process, (ii) the consultation process implemented by the government, (iii) the appellant’s participation in the process, (iv) the consultation carried out at each stage and (v) the Joint Review Panel’s finding on contemporary use and the impacts of the Project, elements that are not disputed by the appellant, it is difficult for me to conclude that the government failed to comply with the established principle of the honour of the Crown. I would like to note, however, that the Crown must continue to honourably fulfill its duty to consult the Innu of Ekuanitshit until the conclusion of the process.

The Court of Appeal dismissed the appeal, but made an order that there be no costs against the Appellant “given the nature of the dispute and the particular circumstances of the case”.

http://www.canlii.org/en/ca/fca/doc/2014/2014fca189/2014fca189.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law