The Enbridge Gateway Pipeline

Transcription

1 UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW The Enbridge Gateway Pipeline 1. Introduction This case study pertains to the proposed Enbridge Northern Gateway pipeline, which would run, if constructed, 1170 kilometres from Fort Saskatchewan in Alberta (near Edmonton) to a new marine terminal at Kitimat, B.C. Constructing such a pipeline requires the approval of the National Energy Board ("NEB"), the B.C. Oil and Gas Commission ("OGC"), and other regulatory agencies such as the federal Department of Fisheries and Oceans ("DFO") because construction of the Kitimat terminal and the resultant tanker traffic will have the potential to negatively affect fish habitat, necessitating a permit under the Fisheries Act. Also implicated in this project are Indian and Northern Affairs Canada, Transport Canada, and the B.C. Ministry of Energy, Mines and Petroleum Resources. The NEB hearings involve other agencies to varying degrees, to streamline the approval process. If the NEB approves the project, these agencies will review separate applications for licences and rights of way, and certainly, a fairly extensive environmental assessment under the Canadian Environmental Assessment Act will be undertaken. This project is actually a reincarnation of an earlier proposal, which was shelved in mid-2007 when PetroChina abandoned its option to become a 49% equity owner in the Gatway project 1. In June 2008 Enbridge informed the NEB and the Canadian Environmental Assessment Agency that it was resuming its environmental, regulatory, Aboriginal and stakeholder engagement activities. 2 Enbridge, Canada s second-largest pipeline company, is an energy and delivery company based in Calgary. Formed in 1970, it now employs over 4,400 people in Canada, the United States, and South America. With a strong earnings record, and a strong financial rating for the notoriously volatile energy sector, the company has been aiming to establish itself as the continent's leading energy delivery company. Enbridge has five business units: liquids pipelines (which includes Gateway), gas pipelines, sponsored Investments, gas distribution and services, and international. Its gas pipelines operate through Enbridge Pipelines Inc. and move about 1.7 million barrels of crude oil each day, mostly in Canada. The Gateway Project is a joint enterprise among Enbridge, an Enbridge subsidiary called Gateway Pipeline Inc., and an entity called Gateway Pipeline Limited Partnership. For purposes of this case study, Enbridge is treated as the project proponent. Construction of the pipeline will clearly involve First Nations consultation. Originally, Enbridge identified 44 aboriginal groups within 80 kilometres of either side of the proposed pipeline. 3 Enbridge's Aboriginal Affairs Manager began coordinating preliminary consultation with First 1 Canadians eye lucrative Asian Markets, Petroleum Economist Magazine, February 2009 available online at 2 June 18, 2008 letter from John Carruthers, President of Northern Gateway Pipelines Limited Partnership to NEB and CEAA, available at 3 Enbridge Inc., Gateway Pipeline: Environment and Socio-Economic Assessment: Aboriginal Traditional Knowledge, online at Copyright 2007 Michael Begg and Shi-Ling Hsu. This case study was developed for educational purposes only, and not intended as commentary or opinion on any aspect of the problem. We welcome any comments or suggestions.

2 Nations in 2004, through consultants hired for the Gateway Project. In a more recent consultation effort, Enbridge sent out letters to 92 aboriginal groups. Aboriginal groups are quite diverse in their positions on the project. Some groups have signed "service agreements" or "impact agreements," with Enbridge, agreeing on a consultation process, or obtaining funding to conduct their own study, which would be submitted to the NEB as part of the review process. These service agreements were drafted by Enbridge, and were designed to create a record of consultation. One may infer that these groups have at least some degree of support for the project, otherwise they would not have bothered with the agreements. Other groups have opposed the project, working with some environmental groups to co-ordinate strategy. Some have been agnostic thus far. Some have called for an autonomous process led by First Nations. Coastal First Nations have objected that Enbridge s consultation plans exclude them, pointing out that the required marine terminal and tanker traffic will affect the territories of an additional 10 First Nations. There are a few groups of First Nations groups, such as the MacLeod Lake Indian Band, that showed early signs of support for the project or at least Enbridge s process for consultation. Other groups, such as the Carrier-Sekani Tribal Council, were co-operating with Enbridge but are not supporting the project, and deny they have been accommodated. And other groups, such as the Haida and the Wet suwet en, have expressed opposition. The pipeline does not cross over land claimed by the Haida, but as tanker traffic would potentially impact Haida land, the Haida feel they have a stake in the outcome of this project. Unlike most other pipeline proposals that might compete with this project for funding and capacity, Gateway would be a completely new pipeline route. And unlike the other pipelines, it would introduce tanker traffic to the coast of B.C., which has had little such traffic since the federal government imposed a moratorium on oil and gas exploration and tanker traffic in Environmental groups such as the Sierra Club (B.C. Chapter) and Canadian Parks and Wilderness Society (CPAWS) have voiced concerns about the tankers threat to B.C. coastal waters, and about the effects of the pipeline on streams, fish, wildlife, air quality, and land. They have also objected to the project s contribution to greenhouse gas emissions. 2. The Project The Gateway proposal includes a pair of parallel pipelines. One is a 36-inch pipeline with ten pumping stations transporting an average of 525,000 barrels of crude oil from Fort Saskatchewan to Kitimat, where tankers will offload the oil for destinations most likely in East Asia. 4 The estimated capital cost of this pipeline would be $2.5 billion. Parallel to this pipeline a 20-inch pipeline would be constructed to transport an average of 193,000 barrels of condensate in the opposite direction, from Kitimat to Fort Saskatchewan. 5 Condensate is a liquid by-product of natural gas production, usually containing toxic substances, and serves as a thinner useful in the extraction of oil from sand. There is a shortage of condensate in Alberta, severe enough that Enbridge increased the size of the proposed condensate pipeline from the original 16 inches. The company would import the condensate from various countries and unload it at the Kitimat 4 Enbridge, Northern Gateway Pipeline Project 3, online at 5 Ibid. 2

3 marine terminal. Enbridge has estimated it would save 13% of the costs if allowed to build the pipelines simultaneously on the same right of way. The pipelines would first cross timbered regions of the Alberta plateau, then enter B.C. near the Redwillow River and continue westward 150 kilometres south of Tumbler Ridge to the Parsnip River, crossing the Central Fraser Plateau of British Columbia. They would cross the Coast Mountain range before descending into the Kitimat River valley. The route would cross at least 870 watercourses in B.C., including numerous substantial rivers such as the Skeena and Kitimat. The proposed marine terminal would consist of a single berth, most likely a floating terminal on the northwest side of Kitimat Arm. A floating terminal is required because underwater soil instability in the area prevents a fully grounded terminal. The total cost of the entire project the pipelines and the terminal is expected to exceed $4.5 billion. The Kitimat port is currently B.C. s third largest port, after the Port of Prince Rupert and the combined federal ports at Vancouver. It is also B.C. s largest private port, and announced in 2005 plans for a major expansion as a container and bulk resources port. 6 There is already another project under way that will take advantage of the port: Kitimat s aluminum smelter already makes the Douglas Channel a busy shipping artery, as bauxite is shipped in and aluminum shipped out. And there are other projects under way that will require tankers in the channel and the region. Galveston LNG s planned liquefied natural gas terminal near Kitimat is the most immediate. 7 And Westpac Terminals Inc., another Calgary company, has proposed an LNG facility just north, in Prince Rupert. 8 The Gateway project, however, would introduce crude oil to the Douglas Channel. It is unclear whether the informal federal moratorium on oil and gas exploration in and oil shipments through coastal waters will remain in place, or be relaxed to allow the project to go forward. Obviously, DFO's participation in this process will signal its inclinations. Tankers leaving the Kitimat terminal would pass through the Douglas Channel, and would pass around Gil Island to Caamano Sound, and travel east to the Asia-Pacific or south to California. The economic significance of the Gateway project is that this port would be best situated to ship crude oil to growing and oil-hungry China. Enbridge advertises that all tankers entering the Douglas Channel will be double-hulled. 9 Enbridge estimates that direct, indirect and induced employment required during construction of the Enbridge Gateway Project will total over 49,000 person-years. Of this employment, about 45 percent would be in British Columbia, 40 percent in Alberta and the remaining 15 percent would be in the rest of Canada and overseas. Direct and indirect labor income associated with project construction is estimated at about $2.2 billion, with a similar distribution between British 6 See Port of Kitimat, online at: 7 See Galveston LNG Inc., online at: This project does not require a new pipeline. Galveston plans to use the Pacific Northern Gas Pipeline to connect with Duke Energy s Westcoast Energy Main gas transportation system. It received an approval certificate from the B.C. Environmental Assessment Office in June British Columbia, Environmental Assessment Office, Kitimat LNG Terminal Project, (6 June 2006), online at: 8 Forty terminals worldwide import LNG. There are currently no LNG terminals in Canada; the U.S. has five. See California Energy Commission, Liquefied Natural Gas, online at: 9 Supra, note 4 at 4. 3

4 Columbia and Alberta. After construction, there will be approximately 45 full-time jobs in British Columbia, mostly at the marine terminal in Kitimat. For the two years of construction, employment would include an average of more than 1,000 workers. 3. The Regulatory Approval Process The NEB was created by the National Energy Board Act (Appendix A). Like most agencies, it has adjudicatory powers, and will generate records, take testimony from witnesses, and subpoena parties to appear before the NEB. Look at sections 11 to 24 of the National Energy Board Act. By statute, the NEB has been given powers by Parliament to regulate all manner of energy matters, including the location, construction, and operation of pipelines (NEB Act, 31-58). And in so doing, they can act in a manner very similar to that of a court. In this case, the NEB is also and agency, and it is the agency charged with reviewing Enbridge's application and if it approves the project, with regulating the subsequent construction and operation. The NEB is thus where Enbridge begins its regulatory approval process for construction of the pipeline. Permission to even begin construction must be sought from the NEB. Remember, the NEB only goes so far as federal jurisdiction empowers it to only extraprovincial energy projects like this pipeline trigger NEB jurisdiction. NEB maintains a website registry for documents filed in connection with the approval process. 10 Proponents of interprovincial pipeline projects such as Gateway must apply for a certificate under section 52 of the NEB Act (Appendix B). An application for a certificate must include information such as the purpose, design, and route of the pipeline; Existing or proposed public consultation programs in relation to the project; need for any land rights; and economic factors (including supply, demand, and jobs created). The NEB then co-ordinates an Environmental Assessment under the Canadian Environmental Assessment Act ("CEAA"), and would include all of the federal authorities for which CEAA is triggered under section 5 of the CEAA. In large cases such as this one, and with the Mackenzie Valley Pipeline, the agencies will establish a joint review panel to more efficiently review the proposal and prepare for their own licensing decisions. As well, provincial In the case of Gateway, the following federal agencies are responsible authorities under CEAA: DFO also will have to issue Fisheries Act permits after CEA and NEB certificates Transport Canada has the lead authority over marine transportation programs and runs the TERMPOL review process (TRP) in co-operation with DFO (re: the marine terminal and tankers) INAC participates in these processes as necessary to facilitate consultation Natural Resources Canada with a mandate to promote sustainable development, NRCAN is anticipated to play some advisory role in the NEB s Gateway review 10 NEB update page on Gateway Project online: < 4

5 Enbridge also requires land tenure from the Alberta and BC governments. As the project takes place largely on provincial land, the provinces would have to grant Enbridge the right-of-ways along the pipeline route. The BC Land Act governs BC's alienation of property, and a similar mechanisms exists in Alberta. The Ministry of Agriculture and Lands also plays a role through its Integrated Land Management Bureau, in reviewing the proposed pipeline right of way in relation to the existing Land and Resource Management Plans for the north. Finally, most significantly, the BC Oil and Gas Commission has the lead role in tenuring oil and gas exploration, extraction, and pipeline rights of way. Its authorities are set out in the Oil and Gas Commission Act and the Pipeline Act (Appendix B). The project would also call for a B.C. environmental assessment, which is less demanding than a federal assessment, and in a joint panel review, would be subsumed in the federal one. The federal processes take place before the B.C. government makes any decisions on land tenure, but B.C. land agencies usually participate in NEB reviews, to determine in advance potential landuse concerns. Enbridge s original timeline for Gateway was to complete all approvals and obtain all permits by December of 2007, and begin construction shortly thereafter, with operations commencing in However, Enbridge suspended the entire process in November of Enbridge's current plans calls for review through 2011, construction beginning in 2012, and operations commencing in Consultation of First Nations Although NEB is the agency that will license the project, it considers itself to be a quasi-judicial body with a different role from that of licensing agencies such as DFO and OGC, which will also have to issue permits. Its position is that it therefore does not consult with First Nations, nor does it review the consultation of First Nations done by project proponents or other agencies, except to consider such consultation within the overall context of public consultation and concerns. 12 A document in the NEB s Filing Manual, called Common Information Requirements sets out the expectations for consultation. It includes several references to aboriginal consultation. 13 It says: The Board expects applicants will consider consultation for all projects. Depending on the project scope, that could mean carrying out a very extensive consultation program or a very simple program such as notifying a single landowner. Applicants are responsible to justify the extent of consultation carried out for each application. Because of the large number of First Nations groups involved, Enbridge hired a Manager of Aboriginal Affairs in In 2004 and 2005, the manager and consultants he hired met with 120 native communities in Alberta and British Columbia. During these meetings, the company 11 Supra, note 4, at See Appendix G. 13 NEB, Filing Manual, c. 3, Common Information Requirements, online: < 5

6 began to negotiate service agreements to define consultation relationships. At the time it suspended the regulatory process, Enbridge says it had signed 15 agreements involving 25 Aboriginal communities and associations along the proposed right of way. 14 Service agreements are usually confidential, so access to service agreements is difficult, and it is impossible to corroborate Enbridge's claims regarding service agreements. The company also signed a service agreement in 2006 with the Carrier Sekani Tribal Council to conduct an Aboriginal Interest and Use Study for $500,000. Enbridge was to submit this study to the NEB with no modifications, as the sole input on aboriginal interests in the Carrier Sekani s portion of the route. The study was released in B.C. First Nations that raised concerns about the project, in letters to Enbridge and in letters to the NEB include those whose territories the pipeline would cross are the Haisla (in Kitimat), Carrier Sekani, and Wet suwet en, and coastal First Nations, have also raised objections or concerns, pointing out that Enbridge has not consulted them at all. These include the Haida, a group called the Coastal First Nations of the Turning Point Initiative, and, in a joint letter, the Oweekeno, Kitasoo, and Nuxalk, on the central coast. They argue that they have to be consulted and accommodated, due to the effect the required tanker traffic will have on their territories and activities, even though the pipeline does not cross their territory. Treaty 8 First Nations have not written to the NEB, but have met with Enbridge and have been talking with NGOs about their position on the pipeline. The Macleod Lake Indian Band, which adhered to Treaty 8 in 2000, is rumoured to be one of those that has signed a service agreement. Since Enbridge's restart, it has indicated that it would undertake commercial discussions with equity participants including Aboriginal groups who have or may express interest in that opportunity. 16 Between October 2008 and January 2009, the CEAA sent out letters to 92 bands declaring that the CEAA would carry out consultations with potentially affected Aboriginal groups in respect of the draft Joint Review Panel Agreement. 17 Only one group responded to the CEAA letter. On January 30, 2009, the Gitga'at First Nation wrote expressing concerns about the consultation process and the project. Specifically, the Gitga at expressed their frustration with the Crown for failing to engage with the Gitga at in a way that fulfills the constitutional duty of meaningful consultation in these circumstances. 18 The group stated that if the Crown approves the project, aboriginal rights guaranteed under the constitution would be violated, including "the Gitga'at's pre-existing sovereignty over themselves and their territory. the Gitga'at's pre- 14 Enbridge, 2007 Corporate Social Responsibility Report 63, online at 15 The executive summary of the report is available online at and the full, 118-page report is online at 16 Id. 17 Announcement letters regarding consultation are available at 18 January 30, 2009 letter from Dan Cardinall Gitga at Lands & Resources Manager for and on behalf of: Wahmoodmx (Albert Clifton), Hereditary Chief, Gitga at First Nation and Jack Clifton, Chief Councilor, Hartley Bay Village Council to CEAA at page 4 available at 6

7 existing social organization, including the traditional clan systems and laws The Gitga'at's pre-existing occupation of their territory, including title [and] the Gitga'at's pre-existing enjoyment of their territories' natural bounty, including, for example, unmolested marine harvesting in our preferred areas, through our preferred access, in our preferred ways, and in our preferred times. 19 The Gitga at rejected the proposed Joint Review Panel Agreement negotiated between the Naitonal Energy Board and the Minister of Environment because in their words the Joint Review Panel process, will, despite CEAA s best intentions, not respect or meaningfully address the Gitga at s constitutional rights.it gives no space for Gitga at in the core decisionmaking process and thus fails to recognize and give effect to our pre-existing decision making rights in regard to our territory. 20 Not all First Nations who claim to be impacted by the project have been contacted by either the government or the pipeline company. The Council of the Haida Nation says it has not been consulted about the pipeline but Haida Nation representative Robert Davis says the Haida Nation would never accept Enbridge's plan even if it did consult. 21 Guujaaw, the Council of Haida Nation president said that the increased oil tanker traffic associated with the pipeline would damage the Haida Gwaii. 22 In contrast to the Gita agit and the Haida, other First Nations have agreed to meet with the pipeline proponents and have signed protocol agreements. 23 The Haisla First Nation is tentatively supporting the project because of its socioeconomic benefits. Other nations have reserved judgment. For example, the the Nee-Tahi-Buhn have been offered $110,000 in capacity-building funds and a a chance to purchase equity in the project but will only support the project.if it translates into future revenue for members Id. at page 4 20 Id. at page George Baker, Council of the Haida Nation objects to oil pipeline plans:group won't accept risk of tanker spills, December 3, 2008 available at article at: 22 Northern B.C. has concerns over proposed Northern Gateway pipeline project, Oilweek Magazine, January 15, 2009 available at 23 Colleen Kimmett, First Nations Consider Court Action, February 27, 2009, The Tyee available at 24 Andrew Findlay, Pipeline would bring tankers into B.C. inlets, February 9, 2009, Georgia Straight, 7

8 Discussion Questions 1. When does the duty to consult actually arise? Who is required to consult with First Nations? Which First Nations are required to be consulted? What do you think of the NEB's position on their duty to consult? What is the BC OGC's duty to consult? 2. How does a government carry out a consultation with the many and diverse aboriginal groups in a situation like this? 3. Consider the terms of reference for the joint panel conducting the environmental assessment. What is the role of environmental assessment in terms of aboriginal consultation? 4. The service agreements drafted by Enbridge and entered into by several First Nations groups are controversial. They are meant to address opposition to a project, and is a form of consultation, even though Justice MacLachlin's opinion says that the duty to consult cannot be delegated. Service agreements are difficult to obtain because there are confidentiality concerns. But what do you think, in principle, of Enbridge's strategy of obtaining consent through service agreements? If you were a First Nations group that was required to be consulted, what would you want in a service agreement? In class, you will be divided into groups and asked to engage in a role-playing exercise. Your charge will be to engage in a consultation process. You will be provided materials that describe your role in more specific terms than that provided in this case study. Please be sure, however, to read the letters to begin to understand the interests of the different stakeholders in this case. After the role-playing exercise, we will engage in a post-mortem on the role-playing exercise. Of course, you will not know ahead of time how the consultation role-playing will play out, but please think about the legal materials in this case study, and how they framed your consultation exercise. 8

9 Appendix A National Energy Board Act National Energy Board Act [hyperlinks are to statute online] Short Title Interpretation Application Part I : National Energy Board Part II : Advisory Functions Part II.1 : Oil And Gas Interests, Production And Conservation Part III : Construction And Operation Of Pipelines Part III.1 : Construction And Operation Of Power Lines Part IV : Traffic, Tolls And Tariffs Part V : Powers Of Pipeline Companies Part VI : Exports And Imports Part VII : Interprovincial Oil And Gas Trade Part VIII : General Definitions 2. In this Act, INTERPRETATION "Board" means the National Energy Board established by section 3; "lands" means lands the acquiring, taking or using of which is authorized by this Act or a Special Act, and includes real property and any interest or right in real property or land and, in the Province of Quebec, any immovable, any right in an immovable and the right of a lessee in respect of any immovable. Those interests and rights may be in, to, on, under, over or in respect of those lands; "pipeline" means a line that is used or to be used for the transmission of oil, gas or any other commodity and that connects a province with any other province or provinces or extends beyond the limits of a province or the offshore area as defined in section 123, and includes all branches, extensions, tanks, reservoirs, storage facilities, pumps, racks, compressors, loading facilities, interstation systems of communication by telephone, telegraph or radio and real and personal property, or immovable and movable, and works connected to them, but does not include a sewer or water pipeline that is used or proposed to be used solely for municipal purposes; APPLICATION Binding on Her Majesty 2.1 This Act is binding on Her Majesty in right of Canada or a province. 9

10 PART I NATIONAL ENERGY BOARD Board established 3. (1) There is hereby established a Board, to be called the National Energy Board, consisting of not more than nine members to be appointed by the Governor in Council. Tenure of members (2) Subject to subsection (3), each member of the Board shall be appointed to hold office during good behaviour for a period of seven years, but may be removed at any time by the Governor in Council on address of the Senate and House of Commons. Board a court 11. (1) The Board is a court of record. POWERS OF THE BOARD Official Seal (2) The Board shall have an official seal, which shall be judicially noticed. Powers with respect to witnesses, etc. (3) The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders, the entry on and inspection of property and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record. Jurisdiction 12. (1) The Board has full and exclusive jurisdiction to inquire into, hear and determine any matter (a) where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation, certificate, licence or permit, or any order or direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act, or any such regulation, certificate, licence, permit, order or direction; or (b) where it appears to the Board that the circumstances may require the Board, in the public interest, to make any order or give any direction, leave, sanction or approval that by law it is authorized to make or give, or with respect to any matter, act or thing that by this Act or any such regulation, certificate, licence, permit, order or direction is prohibited, sanctioned or required to be done. 10

11 Matters of law and fact (2) For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact. Mandatory orders 13. The Board may (a) order and require any person to do, forthwith, or within or at any specified time and in any manner prescribed by the Board, any act, matter or thing that such person is or may be required to do under this Act, or any regulation, certificate, licence or permit, or any order or direction made or given under this Act; and (b) forbid the doing or continuing of any act, matter or thing that is contrary to this Act or any such regulation, certificate, licence, permit, order or direction. Delegation 14. The Board may delegate to one or more of its members, either jointly or severally, all or any of its powers, duties and functions under this Act, except those under subsection 45(3), section 46, 47, 48, 52, 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, or 129 or under Part IV, VI or VII. Powers of member authorized to report 15. (1) The Board or the Chairman may authorize one or more of its members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board,. Board may act on own motion (3) The Board may of its own motion inquire into, hear and determine any matter or thing that under this Act it may inquire into, hear and determine. ORDERS AND DECISIONS Enforcement of Board orders 17. (1) Any decision or order made by the Board may, for the purpose of enforcement thereof, be made a rule, order or decree of the Federal Court or of a superior court of a province and shall be enforced in like manner as a rule, order or decree of that court. Procedure for enforcement (2) To make a decision or order of the Board a rule, order or decree of the Federal Court or a superior court, the usual practice and procedure of the court in such matters may be followed, or in lieu thereof the Secretary may produce to the court a certified copy of the decision or order under the seal of the Board and thereupon the decision or order becomes a rule, order or decree of the court. 11

12 General or particular orders 18. Where under this Act the Board may make or issue any order or direction or prescribe any terms or conditions or do any other thing in relation to any person, the Board may do so, either generally or in any particular case or class of cases. Conditional orders, etc. 19. (1) the Board may direct in any certificate, licence or order that it or any portion or provision thereof shall come into force at a future time or on the happening of any contingency, event or condition. Granting of relief may be partial 20. On any application made to the Board, the Board may make a decision or order granting the whole or part only of the application, or may grant such further or other related relief, in addition to or in lieu of that applied for, as to the Board may seem just and proper, to the same extent as if the application had been for such partial or related relief. Review, etc., of decisions and orders 21. (1) Subject to subsection (2), the Board may review, vary or rescind any decision or order made by it or rehear any application before deciding it. Variation of certificates, licences and permits (2) The Board may vary a certificate, licence or permit but the variation of a certificate or licence is not effective until approved by the Governor in Council. Appeal to Federal Court of Appeal 22. (1) An appeal lies from a decision or order of the Board to the Federal Court of Appeal on a question of law or of jurisdiction, after leave to appeal is obtained from that Court. Application for leave to appeal (1.1) An application for leave to appeal must be made within thirty days after the release of the decision or order sought to be appealed from or within such further time as a judge of that Court under special circumstances allows. Entry of appeal (2) No appeal lies after leave has been obtained under subsection (1) unless it is entered in the Federal Court of Appeal within sixty days from the making of the order granting leave to appeal. Board may be heard (3) The Board is entitled to be heard by counsel or otherwise on the argument of an appeal. Decisions final 12

13 23. (1) Except as provided in this Act, every decision or order of the Board is final and conclusive. Decision or order (2) Any minute or other record of the Board or any document issued by the Board, in the form of a decision or order, shall for the purposes of this section be deemed to be a decision or order of the Board. Public hearings 24. (1) Subject to subsection (2), hearings before the Board with respect to the issuance, revocation or suspension of certificates or of licences for the exportation of gas or electricity or the importation of gas or for leave to abandon the operation of a pipeline shall be public. Exception (2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends (a) a licence; (b) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or (c) a certificate issued in respect of a pipeline, if the pipeline has not been brought into commercial operation under that certificate. Other matters (3) The Board may hold a public hearing in respect of any other matter if it considers it advisable to do so. FEES, LEVIES AND CHARGES Regulations imposing fees, etc (1) Subject to the approval of the Treasury Board, the National Energy Board may, for the purposes of recovering all or a portion of such costs as the National Energy Board determines to be attributable to its responsibilities under this or any other Act of Parliament, make regulations (a) imposing fees, levies or charges on any person or company authorized under this Act to (i) construct or operate a pipeline or an international or interprovincial power line, (ii) charge tolls, (iii) export or import oil or gas, or (iv) export electricity; and (b) providing for the manner of calculating the fees, levies and charges in respect of the person or company and their payment to the National Energy Board. 13

14 PART III CONSTRUCTION AND OPERATION OF PIPELINES GENERAL Operation of pipeline 30. (1) No company shall operate a pipeline unless (a) there is a certificate in force with respect to that pipeline; and (b) leave has been given under this Part to the company to open the pipeline. Compliance with conditions (2) No company shall operate a pipeline otherwise than in accordance with the terms and conditions of the certificate issued with respect thereto. LOCATION OF PIPELINES Approval of Board 31. Except as otherwise provided in this Act, no company shall begin the construction of a section or part of a pipeline unless (a) the Board has by the issue of a certificate granted the company leave to construct the line; (b) the company has complied with all applicable terms and conditions to which the certificate is subject; (c) the plan, profile and book of reference of the section or part of the proposed line have been approved by the Board; and (d) copies of the plan, profile and book of reference so approved, duly certified as such by the Secretary, have been deposited in the offices of the registrars of deeds for the districts or counties through which the section or part of the pipeline is to pass. Application for certificate 32. (1) On an application for a certificate, the company shall file with the Board a map in such detail as the Board may require showing the general location of the proposed line and such plans, specifications and information as the Board may require. Notice to provincial attorney general (2) The company shall file a copy of the application with the attorney general of each province to which the application relates 14

15 PLAN, PROFILE AND BOOK OF REFERENCE Plan, etc., of pipeline 33. (1) When the Board has issued a certificate, the company shall prepare and submit to the Board a plan, profile and book of reference of the pipeline. Details (2) The plan and profile shall be drawn with such detail as the Board may require. Description of lands (3) The book of reference shall describe the portion of land proposed to be taken in each parcel of land to be traversed, giving the numbers of the parcels, and the area, length and width of the portion of each parcel to be taken, and the names of the owners and occupiers in so far as they can be ascertained. Further information (4) The plan, profile and book of reference shall be prepared to the satisfaction of the Board, and the Board may require the company to furnish any further or other information that the Board considers necessary. DETERMINATION OF DETAILED ROUTE AND APPROVAL Notice to owners 34. (1) Where a company has prepared and submitted to the Board a plan, profile and book of reference pursuant to subsection 33(1), the company shall, in a manner and in a form to be determined by the Board, (a) serve a notice on all owners of lands proposed to be acquired, in so far as they can be ascertained; and (b) publish a notice in at least one issue of a publication, if any, in general circulation within the area in which the lands are situated. Contents of notices (2) The notices mentioned in subsection (1) shall describe the proposed detailed route of the pipeline, the location of the offices of the Board and the right of the owner and of persons referred to in subsection (4) to make, within the time referred to in subsection (3) or (4), as the case may be, representations to the Board respecting the detailed route of the pipeline. Written statement of interest and grounds for opposition (3) Where an owner of lands who has been served with a notice pursuant to subsection (1) wishes to oppose the proposed detailed route of a pipeline, the owner may, within thirty days of being served, file with the Board a written statement setting out the nature of the owner s interest in the proposed detailed route and the grounds for his opposition to that route. 15

16 Opposition by persons adversely affected (4) A person who anticipates that their lands may be adversely affected by the proposed detailed route of a pipeline, other than an owner of lands referred to in subsection (3), may oppose the proposed detailed route by filing with the Board within thirty days following the last publication of the notice referred to in subsection (1) a written statement setting out the nature of that person s interest and the grounds for the opposition to the proposed detailed route of the pipeline. Public hearing 35. (1) Where a written statement is filed with the Board pursuant to subsection 34(3) or (4) within the time limited for doing so under that subsection, the Board shall forthwith order that a public hearing be conducted within the area in which the lands to which the statement relates are situated with respect to any grounds of opposition set out in any such statement. Notice of public hearing (2) The Board shall fix a suitable time and place for the public hearing referred to in subsection (1) and cause notice of the time and place so fixed to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the lands proposed to be acquired are situated and by sending it to each person who filed a written statement with the Board pursuant to subsection 34(3) or (4). Opportunity to be heard (3) At the time and place fixed for the public hearing pursuant to subsection (2), the Board shall hold a public hearing and shall permit each person who filed a written statement with the Board pursuant to subsection 34(3) or (4) to make representations and may allow any other interested person to make such representations before it as the Board deems proper. Inspection of lands (4) The Board or a person authorized by the Board may make such inspection of lands proposed to be acquired for or affected by the pipeline construction as the Board deems necessary. Matters to be taken into account 36. (1) Subject to subsections (2) and 35(5), the Board shall not give approval to a plan, profile and book of reference unless the Board has taken into account all written statements filed with it pursuant to subsection 34(3) or (4) and all representations made to it at a public hearing in order to determine the best possible detailed route of the pipeline and the most appropriate methods and timing of constructing the pipeline. Exception (2) The Board may approve a plan, profile and book of reference in respect of any section or part of a pipeline where no written statement under subsection 34(3) or (4) has been filed with the Board in respect of that section or part. Terms and conditions 37. In any approval referred to in section 36, the Board may impose such terms and conditions as it considers proper. 16

17 Notice of decision 38. Where the Board has held a public hearing under subsection 35(3) in respect of any section or part of a pipeline and approved or refused to approve a plan, profile and book of reference respecting that section or part, it shall forthwith forward a copy of its decision and the reasons therefor to the Minister and to each person who made representations to the Board at the public hearing. Costs of making representations 39. The Board may fix such amount as it deems reasonable in respect of the actual costs reasonably incurred by any person who made representations to the Board at a public hearing under subsection 35(3) and the amount so fixed shall be payable forthwith to that person by the company whose pipeline route is affected by the public hearing. Effect of approval 40. The Board shall not, by the issue of a certificate or by approving a plan, profile and book of reference, be deemed to have relieved the company from otherwise complying with this Act. ERRORS Application for correction of errors 41. (1) Where any omission, misstatement or error is made in a registered plan, profile or book of reference, the company shall apply to the Board for a permit to correct the omission, misstatement or error. How corrected (2) The Board may in its discretion issue a permit setting out the nature of the omission, misstatement or error referred to in subsection (1) and the correction allowed. Registration (3) On the deposit of copies of the permit issued under subsection (2), certified as such by the Secretary, in the offices of the registrars of deeds of the districts or counties in which the lands affected are situated, the plan, profile or book of reference shall be taken to be corrected in accordance therewith, and the company may, thereupon, subject to this Act, construct its pipeline in accordance with the correction. DIVERSION OR RELOCATION Diversions and relocation 46. (1) The Board may, on such terms and conditions as it considers proper, direct a company to divert or relocate its pipeline if the Board is of the opinion that the diversion or relocation is necessary 17

18 (a) to facilitate the construction, reconstruction or relocation of a highway or a railway or any other work affecting a public interest; or (b) to prevent or remove an interference with a drainage system. Costs of diversion or relocation (2) The Board may direct by whom and to whom the costs of the diversion or relocation referred to in subsection (1) shall be paid. Procedures (3) The Board shall not direct a company to divert or relocate any section or part of its pipeline unless the procedures set out in sections 34 to 38 have been complied with in respect of the section or part to be diverted or relocated. Idem (4) For the purposes of ensuring that the procedures set out in sections 34 to 38 are complied with, the Board may order the company to carry out such of those procedures as the company would be required to carry out if the company had prepared and submitted to the Board a plan, profile and book of reference pursuant to subsection 33(1) and those sections shall apply, with such modifications as the circumstances require, in respect of any matter related to the carrying out of those procedures. Costs of representations to Board (5) The Board may fix such amount as it deems reasonable in respect of the actual costs reasonably incurred by any person who made representations to the Board under this section and may direct by whom and to whom the amount so fixed shall be paid. LEAVE TO OPEN PIPELINES Leave to open line 47. (1) No pipeline and no section of a pipeline shall be opened for the transmission of hydrocarbons or any other commodity by a company until leave to do so has been obtained from the Board. Grant of leave (2) Leave may be granted by the Board under this section if the Board is satisfied that the pipeline may safely be opened for transmission. Certificates Issuance 52. The Board may, subject to the approval of the Governor in Council, issue a certificate in respect of a pipeline if the Board is satisfied that the pipeline is and will be required by the present and future public convenience and necessity and, in considering an application for a 18

19 certificate, the Board shall have regard to all considerations that appear to it to be relevant, and may have regard to the following: (a) the availability of oil, gas or any other commodity to the pipeline; (b) the existence of markets, actual or potential; (c) the economic feasibility of the pipeline; (d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity of participating in the financing, engineering and construction of the pipeline; and (e) any public interest that in the Board s opinion may be affected by the granting or the refusing of the application. Objections of interested persons 53. On an application for a certificate, the Board shall consider the objections of any interested person, and the decision of the Board as to whether a person is or is not an interested person for the purpose of this section is conclusive. Terms and conditions of certificates 54. (1) The Board may issue a certificate subject to such terms and conditions as the Board considers necessary or desirable in the public interest. Compliance CONDITIONS TO CERTIFICATE 57. Every certificate is subject to the condition that the provisions of this Act and the regulations in force at the date of issue of the certificate and as subsequently enacted, made or amended, as well as every order made under the authority of this Act, will be complied with. Exempting orders respecting pipelines, etc. 58. (1) The Board may make orders exempting EXEMPTIONS (a) pipelines or branches of or extensions to pipelines, not exceeding in any case forty kilometres in length, and 19

20 (b) any tanks, reservoirs, storage facilities, pumps, racks, compressors, loading facilities, interstation systems of communication by telephone, telegraph or radio, and real and personal property, or immovable and movable, and works connected to them, that the Board considers proper, from any or all of the provisions of sections 29 to 33 and

21 PART VI EXPORTS AND IMPORTS DIVISION I OIL AND GAS Prohibition Prohibition 116. Except as otherwise authorized by or under the regulations, no person shall export or import any oil or gas except under and in accordance with a licence issued under this Part. Issuance of Licences Issuance of licences 117. (1) Subject to the regulations, the Board may, on such terms and conditions as it may impose, issue licences for the exportation or importation of oil or gas. Compliance (2) Every licence is subject to the condition that the provisions of this Act and the regulations in force at the date of issue of the licence and as subsequently enacted, made or amended, as well as every order made under the authority of this Act, will be complied with. 21

22 Appendix B Oil and Gas Commission Act [SBC 1998] CHAPTER 39 Corporation established 2 (1) A corporation known as the Oil and Gas Commission is continued, consisting of 3 directors. (2) The deputy minister is a director and is the chair of the commission. (3) The Lieutenant Governor in Council may appoint 2 directors, for a term not longer than 5 years, one of whom is the commissioner and vice chair of the commission. (4) A vacancy in the membership of the commission or the incapacity of one of the directors does not impair the power of the remaining directors to act. (5) A majority of the directors holding office constitutes a quorum at meetings of the commission. (6) If there is a tie vote, the chair of the commission, or in the absence of the chair the vice chair, has a casting vote. (7) If a person appointed under subsection (3) dies or is unable to act, the minister, by order, may appoint an acting commissioner or acting director for a period not longer than 6 months. (8) The commission must pay a person appointed under subsection (3) or (7) an allowance for reasonable travelling and incidental expenses necessarily incurred in carrying out the business of the corporation. (9) Subject to sections 5 and 6.1, the commission must direct its operations. (10) The Lieutenant Governor in Council may appoint a deputy commissioner. (11) The deputy commissioner has the powers of the commissioner, but does not have a vote in meetings or decisions of the commission. Commission is an agent of the government 2.1 The commission is an agent of the government. Purposes 3 The purposes of the commission are to (a) regulate oil and gas activities and pipelines in British Columbia in a manner that 22

23 (i) provides for the sound development of the oil and gas sector, by fostering a healthy environment, a sound economy and social well being, (ii) conserves oil and gas resources in British Columbia, (iii) ensures safe and efficient practices, and (iv) assists owners of oil and gas resources to participate equitably in the production of shared pools of oil and gas, (b) provide for effective and efficient processes for the review of applications related to oil and gas activities or pipelines, and to ensure that applications that are approved are in the public interest having regard to environmental, economic and social effects, (c) encourage the participation of First Nations and aboriginal peoples in processes affecting them, (d) participate in planning processes, and (e) undertake programs of education and communication in order to advance safe and efficient practices and the other purposes of the commission. Application of Act to Muskwa-Kechika Management Area 3.1 If there is a conflict or inconsistency between this Act and the Muskwa-Kechika Management Area Act, the Muskwa-Kechika Management Area Act prevails. Relationship with aboriginal and treaty rights 4 For greater certainty, the provisions of this Act are intended to respect aboriginal and treaty rights in a manner consistent with section 35 of the Constitution Act, Inquiries and recommendations 10 (1) The commission may, and at the request of the Lieutenant Governor in Council, must, at the places, at the times and in a manner it considers advisable (a) make inquiries and investigations and prepare studies and reports on any matter within the scope of this Act, and (b) recommend to the Lieutenant Governor in Council any measures the commission considers necessary or advisable in the public interest related to oil and gas activities or pipelines. (2) Subsection (1) does not apply to a matter that is before the commission. 23

24 Appendix C Dene Tha' First Nation v. Canada (Minister of Environment) 2006 FC 1354 PHELAN J. I. INTRODUCTION [1] A massive industrial project like the Mackenzie Gas Pipeline (MGP), one that anticipates the creation of a corridor of pipeline originating in Inuvik in the far north of the Northwest Territories and terminating 15 metres south of the Northwest Territories and Alberta border, where a proposed connecting pipeline will link it up with existing provincial pipelines for southern distribution (the Connecting Facilities ), attracts a myriad of government obligations. The issues of environmental review go beyond the physical pipeline from the north to this connection point. Government must deal with the proponents of the project, detractors of the project, regulatory review boards, environmental review boards, and affected First Nations. The alleged failure of the Government of Canada to fulfill its obligations toward this last group, specifically the Dene Tha First Nation (Dene Tha ), forms the subject matter of this judicial review. [2] The Dene Tha alleges that the Government of Canada through the Minister of Environment, the Minister of Fisheries and Oceans, the Minister of Indian and Northern Affairs Canada and the Minister of Transport (the Ministers) breached its constitutionally entrenched duty to consult and accommodate the First Nations people adversely affected by its conduct. Specifically, the Dene Tha identifies as the moment of this breach as its exclusion from discussions and decisions regarding the design of the regulatory and environmental review processes related to the MGP. The Ministers deny that any duty arose at this point and, in any event or in the alternative, asserts that its behavior with respect to the Dene Tha was sufficiently reasonable to discharge its duty to consult and thus withstands judicial scrutiny. The so-called discharge of the duty to consult and accommodate consisted of (1) including the Dene Tha in a single media release of June 3, 2004 inviting public consultation on a draft Environment Impact Terms of Reference and Joint Review Panel Agreement and (2) a 24-hour deadline on July 14, 2004 to comment on these documents. That is not sufficient to meet the duty to consult and accommodate. [3] This Court s conclusion is that the Ministers breached their duty to consult the Dene Tha in its conduct surrounding the creation of the regulatory and environmental review processes related to the MGP from as early as the first steps to deal with the MGP in late 2000 through to early 2002 and continued to breach that duty to the present time. The Dene Tha had a constitutional right to be, at the very least, informed of the decisions being made and provided with the opportunity to have its opinions heard and seriously considered by those with decisionmaking authority. The Dene Tha were never given this opportunity, the Ministers having taken the position that no such duty to consult had arisen yet. [4] Quite remarkably, when the Ministers did decide to consult with the Dene Tha, upon the establishment of the process for the Joint Review Panel, the Dene Tha were given 24 24

25 hours to respond to a process which had taken many months and years to establish and had involved substantial consultation with everyone potentially affected but for the Dene Tha. This last gasp effort at consultation was a case of too little, too late. II. FACTS A. Dene Tha (1) Dene Tha People and Territory [7] The Dene Tha is an Aboriginal group within the meaning of section 35 of the Constitution Act, 1982 and an Indian Band under the Indian Act. Currently, there are approximately 2500 members of the Dene Tha, the majority of which resides on the Dene Tha s seven Reserves. All Dene Tha Reserves are located in Alberta. The three most populous Reserve communities are Chateh, Bushe River, and Meander. [8] The Dene Tha defines its Traditional Territory as lying primarily in Alberta, but also extending into northeastern British Columbia and the southern Northwest Territories (NWT). In the NWT, the Dene Tha claims that its territory overlaps with that of the Deh Cho First Nation, with whom the Dene Tha shares significant familial and cultural relationships. The Crown asserts that the phrase Traditional Territory imports no legal significance with respect to the Aboriginal rights claimed by the Dene Tha north of the 60 parallel the division between the NWT and the Province of Alberta. (2) Dene Tha Treaty 8 Rights in Alberta [9] In 1899 the Dene Tha signed Treaty 8. Treaty 8 is a classic surrender treaty whereby the Government promised payment and various rights, including the rights to hunt, trap, and fish in exchange for the surrender of land. The territory defined by Treaty 8 does not extend into the traditional territory claimed by the Dene Tha in the NWT. The Dene Tha asserts that this means its rights in the NWT remain unextinguished as they are outside the bounds contemplated by Treaty 8. Conversely, if the Ministers are correct and the Dene Tha s rights in the NWT are extinguished by Treaty 8, the Dene Tha submits that this is an admission by the Ministers that the Dene Tha has Treaty 8 rights in the NWT. Dene Tha s allegation of unextinguished aboriginal rights in the NWT is discussed more fully later in these Reasons. [10] The proposed course of the MGP travels through the NWT, ending just south of the NWT and Alberta border. The portion of the pipeline stemming from the Alberta border to its southern terminus runs through territory of the Dene Tha defined by Treaty 8. The proposed Connecting Facilities pass through Bitscho Lake which runs through Trap Line 99, a trap line owned by a Dene Tha member. None of that pipeline runs directly through Dene Tha Reserves. [11] The NGTL pipeline which connects the southern terminus of the MGP with the existing Nova Gas Transmission Line also runs through territory over which the Dene Tha has Treaty 8 rights to hunt, trap, fish, and gather plants for food. [12] That the pipeline does not run through a reserve, contrary to the Ministers implied submission, is insignificant. A reserve does not have to be affected to engage a Treaty 8 right as held in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 25

26 (CanLII), [2005] 3 S.C.R What is important is that the pipeline and the regulatory process, including most particularly environmental issues, are said to affect the Dene Tha. (3) Dene Tha Aboriginal Rights in NWT [13] The Dene Tha posits unrecognized Aboriginal rights to hunt, trap, fish, and gather plants for food in the southern portion of the NWT. As proof of Government recognition of said rights, the Dene Tha points to government archives from the 1930 s regarding the proposal for a creation of an Indian Hunting Preserve for the Dene Tha in this area. [14] The Court was not asked to determine the legitimacy of the Dene Tha s claim to Aboriginal rights in the NWT. Moreover, as the Dene Tha s Treaty 8 rights in Alberta are sufficient to trigger a duty to consult, there is no need to make such a determination in order to resolve this judicial review. B. Mackenzie Gas Pipeline Regulatory and Environmental Matrices [15] The MGP is an enormous and complex industrial undertaking. Its proposed routing envisions a starting point in the gas fields and central processing facilities near Inuvik in the northwest corner of the Northwest Territories. From these collecting facilities, the envisioned pipeline will transport the extracted natural gas through the NWT to just south of the Alberta border. At this point, Nova Gas Transmission Limited (NGTL) in Alberta will build the Connecting Facilities up from its existing facilities to connect with the MGP. In this manner, natural gas can be transported from the northern gathering facilities to a southern distribution terminus. [18] Given the enormity of this project and its inherent cross-jurisdictional character, its conception triggered the involvement of a multitude of regulatory mechanisms. As the Dene Tha s case rests on its exclusion from the discussions and processes surrounding this regulatory machinery, it is necessary to describe in some detail the respective geneses of the regulatory arrangements and mandates of each of these regulatory bodies. Hence, the purpose of this section is to outline the geographical, regulatory, and environmental matrices that overlay the MGP. [19] The backdrop of the MGP consists of seven major regulatory and environmental layers: (1) the Cooperation Plan, (2) the Regulators Agreement, (3) the Joint Review Panel Agreement, (4) the Environmental Impact Terms of Reference, (5) the Joint Review Panel Proceedings, (6) the National Energy Board Proceedings, and (7) the Crown Consultation Unit. Each is discussed below in what is roughly chronological order from oldest to most recent. (1) The Cooperation Plan (a) The Genesis [20] Four years prior to the filing of an application for the MGP with the National Energy Board (NEB), representatives from various regulatory agencies began to consult with one another about how to coordinate the regulatory and environmental impact review process for such an application. The regulators and authorities involved included: Indian and Northern Affairs Canada (INAC), the Canadian Environmental Assessment Agency (CEAA), the NEB, the Mackenzie Valley Environmental Impact Review Board (MVEIRB), the Mackenzie Valley 26

27 Land and Water Board (MVLWB), the Gwich in Land and Water Board, the Sahtu Land and Water Board, the Inuvialuit Land Administration, and the Inuvialuit Game Council. [21] In addition to these core regulatory bodies, other parties were included in the development of the Cooperation Plan. Representatives from the Government of the Yukon and the Government of the NWT were included as observers in the negotiations. The Deh Cho First Nation (Deh Cho) also, through its MVEIRB delegate, obtained observer status. As it is a helpful counterpoint to the exclusion of the Dene Tha from this stage of the process, a fuller discussion of the participatory role played by the Deh Cho will be developed later in these Reasons. [22] The parties involved with developing the Cooperation Plan also heard presentations from gas producers and potential proponents of the MGP. In particular, the parties met with the Mackenzie Delta Gas Producers Group in December 2000, with the Alaska Gas Producers Group in May of 2001, and with Imperial Oil Resources Ventures Limited (IORVL). [23] As a result of these meetings and information-gathering sessions, in June 2002, the Cooperation Plan for Environmental Impact Assessment and Regulatory Review of a Northern Gas Project through the Northwest Territories ( Cooperation Plan ) was finalized. Suffice it to say that the Dene Tha are noticeably absent from the list of persons, organizations and first nations people who were involved in the development of the regulatory framework. (b) The Mandate [24] The Cooperation Plan had a laudable objective, namely, to reduce duplication of the environmental and regulatory processes. To this end, the Cooperation Plan set up a framework for the environmental and regulatory processes to follow. This framework focused on how these processes would be integrated, how joint hearings would be conducted, and how the terms of reference for any future environmental assessment process would be developed. (2) The Agreement for Coordination of the Regulatory Review of the MGP ( Regulators Agreement ) (a) The Genesis [25] The Cooperation Plan recommended the filing of a Preliminary Information Package (PIP) by the proponents of the pipeline. On June 18, 2003, IORVL filed a PIP for the MGP. Subsequent to this filing, the parties to the Cooperation Plan resumed discussions on the review process for the MGP and on April 24, 2004, a number of government ministries and agencies entered into an Agreement for Coordination of the Regulatory Review of the MGP. (b) The Mandate [26] In addition to implementing the provisions of the Cooperation Plan and ensuring compliance with applicable legislation, like the Cooperation Plan, the Regulators Agreement contained as its mandate the avoidance of unnecessary duplication. In particular, the parties to the Regulators Agreement agreed to incorporate the final Joint Review Panel Report and other relevant materials from this process into the record of their respective regulatory processes. 27

28 [Instructors' note: a "Joint Review Panel" is a special body convened pursuant to the Canadian Environmental Assessment Act, that is charged with conducting an especially detailed and comprehensive review of environmental impacts. As noted above, there is often a significant aboriginal component, but for purposes of the consultation requirement, it is generally not sufficient to simply include consideration of impacts on aboriginal peoples in the environmental assessment.] (3) The Agreement for an Environmental Impact Review of the MGP (Joint Review Panel Agreement JRP Agreement) (a) The Genesis [27] On August 3, 2004, the federal Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council concluded an Agreement for an Environmental Impact Review of the Mackenzie Gas Project. The JRP Agreement specified the mandate of the Joint Review Panel and the scope of the environmental impact assessment it would conduct. A further Memorandum of Understanding, executed between the Minister of the Environment and the Inuvialuit, bestowed upon the JRP the responsibility to address certain provisions of the Inuvialuit Final Agreement (IFA). (b) The Mandate [28] The JRP Agreement sets out what bodies are responsible for selecting the members of the JRP. The MVEIRB (composed of delegates from the Gwich in, Sahtu, and the Deh Cho) would appoint three members; the Minister of the Environment, four members (two of whom would be nominated by the Inuvialuit Game Council). The selection of a Chairperson would be approved by the Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council. These panelists were appointed on August 22, 2004 and were: Robert Hornal (Chair), Gina Dolphus, Barry Greenland, Percy Hardistry, Rowland Harrison, Tyson Pertschy, and Peter Usher all named Respondents in this judicial review. (4) Environmental Impact Terms of Reference (a) The Genesis [29] The scope of the JRP s environmental assessment and the informational requirements that the proponent (applicant, IORVL) needed to provide for its Environmental Impact Statement (EIS) were defined on August 22, 2004 in the Environmental Impact Review Terms of Reference for Review of the Mackenzie Gas Project ( Environmental Impact (EI) Terms of Reference ). The EI Terms of Reference were issued by the Minister of the Environment, the Chair of the MVEIRB, and the Chair of the Inuvialuit Game Council. (b) The Mandate [30] The EI Terms of Reference describe the MGP as including the Connecting Facilities for the purposes of the JRP process that is, for the purposes of the environmental assessment. The Terms of Reference also required IORVL to file an Environmental Impact Statement with the JRP. This it did in August As it was deficient for failing to include the Connecting Facilities, the JRP requested IORVL resubmit. This it did in December 2004 by way of a Supplemental Environmental Impact Statement. 28

29 (5) The Joint Review Panel Proceedings (a) The Genesis [31] The Joint Review Panel was contemplated initially by the Cooperation Plan, agreed to be incorporated by the Regulators Agreement, and implemented through the JRP Agreement. On July 18, 2005, the JRP concluded it had received sufficient information from the proponent (IORVL) to commence the public hearing process. These hearings began on February 14, 2006, are currently in process, and are scheduled to continue throughout the current calendar year and into the next. (b) The Mandate [32] The JRP is assigned the task of conducting the environmental assessment for the project. The project for the purposes of the JRP encompasses both the environmental impact of the MGP and the NGTL Connecting Facilities. (6) The National Energy Board Proceedings (a) The Genesis [37] IORVL made its application before the NEB in October of The NEB review arose as part of the development of a coordinated process for environmental assessment and regulatory review of the MGP defined in the Cooperation Plan. (b) The Mandate [38] The NEB is responsible for the decision of whether to recommend the issuance of a Certificate of Public Convenience and Necessity (CPCN) to the proponent of the pipeline project, IORVL. To determine this, the NEB has scheduled public hearings where this issue will be addressed. These hearings also began in early 2006 and are scheduled in a coordinated fashion with those of the JRP. The NEB s hearings will be continued after the JRP process has concluded. The ultimate decision of the NEB will be informed by the Report from the JRP. If the NEB decides that the granting of a CPCN is warranted, then the federal Cabinet still must approve the actual issuance of this Certificate. (7) The Crown Consultation Unit (a) The Genesis [39] The Crown Consultation Unit (CCU) is not the product of a statutory, regulatory, or prerogative exercise. It is essentially an administrative body within the federal government created unilaterally by the Government of Canada. Despite its name, one thing it had no authority to do was consult at least not with any native group as to its rights, interests or other issues in respect of the very matters of concern to the Dene Tha. (b) The Mandate [40] The mandate of the CCU is to coordinate and conduct consultation with First Nations groups who believe that their proven or asserted rights under section 35 of the Constitution Act, 1982 may be affected by the MGP. It was intended to serve as a medium through which the concerns of First Nations regarding the MGP could be brought to the specific relevant government Ministers. Pursuant to this overall purpose, the CCU was mandated to set 29

30 up meetings, prepare a formal record of meetings, and present a record of consultation to the NEB, to Ministers, and to other Government of Canada entities with regulatory decision-making authority. [41] The CCU has no jurisdiction to deal with matters relating to the Cooperation Plan, the Regulators Agreement, or the JRP Agreement. The mandate of the CCU, moreover, does not extend to the authority to determine the existence of an aboriginal right; rather, it only can address the impact on an established right. It was for all intents and purposes a traffic cop directing issues to other persons and bodies who had the authority, expertise or responsibility to deal with the specific matters. C. Dene Tha s Involvement in these Processes (1) Cooperation Plan [42] The Government of Canada made no effort to consult the Dene Tha in respect of the formulation of the Cooperation Plan. The Dene Tha asserts and the evidence demonstrates that all the various proposed routings of the pipeline passed through territory in Alberta over which the Dene Tha has recognized Treaty 8 rights. The federal government attempts to justify this exclusion on the basis that the Dene Tha was not an agency with any regulatory or environmental assessment jurisdiction in relation to the pipeline projects -- no jurisdiction was provided by Treaty 8, by legislation, or by a Comprehensive Land Claim agreement. As such, the Crown argues that it was reasonable for the Dene Tha to be excluded at this stage. [43] The federal government further argues that the Dene Tha had the opportunity to comment on the draft of the Cooperation Plan as the Government of Canada released a draft to the public on January 7, Details of the public release of the Cooperation Plan and other evidence the federal government adduces to support the argument that it has fully discharged its duty to consult will be discussed in a more in-depth fashion in a consideration of whether the Crown has fulfilled its duty to consult. (2) Regulators Agreement, JRP Agreement, and Terms of Reference [44] The Dene Tha was not consulted in respect of the Regulators Agreement, the JRP Agreement, or the Environmental Impact Terms of Reference. On July 14, 2004, the federal government, through its instrument, the CCU, provided the Dene Tha with copies of the draft EI Terms of Reference and draft JRP Agreement, instructing that the deadline for input on both was the following day. The Dene Tha asserts that this was the first time it obtained official knowledge of the contents of these drafts. The federal government further submits that on June 3, 2004 through select media releases and over the internet, it invited public consultation on drafts of the Environmental Impact Terms of Reference and JRP Agreement. This fact was also relied upon by the federal government to support its argument that, to the extent it had a duty to consult, it had carried out that duty. (3) NEB Proceedings and JRP Proceedings [45] The Dene Tha has intervener status for both the NEB and JRP hearings. As interveners, the Dene Tha can provide oral and written submissions and can submit questions to other interveners and the proponents. The Dene Tha has filed a plan for participation in the 30

31 public hearings of the JRP and has actively engaged in the preparation and delivery of Information Requests pursuant to the JRP Rules of Procedure. (4) CCU [46] In April of 2004, the Dene Tha learned that the federal government intended to consult with the Dene Tha about the MGP through the CCU. On July 14, 2004, the Dene Tha met with representatives of the CCU. The Dene Tha provided the CCU with information regarding its Aboriginal and Treaty Rights and made known its need of financial assistance to facilitate meaningful consultation efforts. [47] The Dene Tha alleges that this July meeting marks the first time it was made aware of the imminent establishment of the JRP by receipt of the draft Environmental Impact Terms of Reference and draft JRP Agreement. The Dene Tha claims the CCU representative informed it that it had until the following day (July 15, 2004) to provide comments on these documents. Not surprisingly, the Dene Tha did not meet this deadline for public comment. [48] The Dene Tha was also informed at this meeting that the CCU was not yet fully staffed or operational and had yet to develop its terms of reference. Moreover, up to and including October 2004, the Dene Tha was informed that the CCU could only begin consulting with respect to the MGP once the proponent had filed an application for the project with the NEB. [49] The Dene Tha consistently and continuously pestered the CCU regarding its claim for recognition of rights north of 60. This is a subject matter distinct from its treaty rights under Treaty 8 south of 60. On January 4, 2006, the Dene Tha learned definitively that Canada s position was and always had been that these rights had been extinguished via Treaty 8. This position turned out to be intractable and was reiterated by CCU representatives in its further meetings with the Dene Tha in The CCU stated Canada s position was that it would consider Dene Tha activities in the NWT, but not rights. [50] There were no other impediments to consultation with the Dene Tha other than the failure or refusal of the federal government to engage in consultation. The Dene Tha put up no barriers to such consultation, despite the suggestion by the Ministers that the Dene Tha had imposed some form of pre-conditions. D. Jurisdiction over Consultation [51] It is necessary to consider the jurisdictions of the above institutional entities the JRP, the NEB, and the CCU over consultation with native groups and specifically the Dene Tha. [52] As this is a factual inquiry, several legally salient issues need not be considered for the moment. In particular, neither the necessity of express government delegation of its duty to consult nor the necessity of an intention to consult will be addressed. There is a significant gap in the mandates of JRP, NEB, and CCU a gap consisting of the jurisdiction to engage in Aboriginal consultation with the Dene Tha. 31

32 [53] The JRP has jurisdiction over the entire pipeline project, including both the MGP portion stemming from Inuvik to just south of the Alberta border and the Connecting Facilities that connect the southern terminus of the MGP with the existing NGTL pipeline facilities. The JRP has a broad mandate to consider a wide range of environmental effects, including adverse impact on First Nations activities and can make factual, but not legal determinations, regarding Aboriginal rights. The JRP has no mandate to engage in consultation. Furthermore, it cannot determine the existence of contested Aboriginal rights. [54] The NEB only has jurisdiction over what has been applied for pursuant to the National Energy Board Act. IORVL submitted an application for the MGP in October of NGTL has yet to submit an application for the Connecting Facilities and, when it does, this will not go before the NEB, but before the Alberta equivalent, the Alberta Energy and Utility Board (AEUB). As such, the NEB does not have jurisdiction to consider Aboriginal concerns south of the southern terminus of the MGP. In other words, it cannot consult meaningfully with the Dene Tha regarding the area from the connecting point to the southern end of the Connecting Facilities. Furthermore, there is doubt that it can address concerns the Dene Tha raises on this judicial review with the creation of the process itself as the NEB can be argued to have no jurisdiction pre-application date, that is, pre-october It is also questionable as to whether the NEB can or should deal with the creation of the process in which it was intimately involved. [61] [N]either the JRP nor the NEB is competent to conduct Aboriginal consultation with the Dene Tha in respect of its territory in Alberta. Consequently, one might suppose that the CCU, the Crown Consultation Unit, the only entity left to consider, would naturally fulfill this role. However, the CCU expressly states it is not doing consultation. Its mandate does not include the ability to recognize claims to unproven aboriginal rights and, moreover, affidavit evidence reveals that the CCU has made up its mind on this point. The CCU had no jurisdiction to consult on matters relating to the Cooperation Plan, the Regulators Agreement, the JRP Agreement, or the EI Terms of Reference. [62] To summarize, the only unit out of the CCU, the NEB, and the JRP that could wholly address the territorial and temporal areas of concern of the Dene Tha is the JRP. However, the JRP is engaged in environmental assessment, not aboriginal consultation. Although it will assess the effects the MGP and NGTL pipelines will have on aboriginal communities, it does so through the lens of environmental assessment, focusing on activities, not rights. Further, an aspect of the subject matter of which the Dene Tha say their rights to consultation and accommodation were ignored is the process by which the JRP itself was created. E. Comparison of Dene Tha to other First Nations [63] Against the background of the environmental and regulatory processes, it is necessary to consider the comparative treatment of the Dene Tha by the federal government with that of other First Nations groups: the Inuvialuit, the Sahtu, the Gwich in, and, in particular, the Deh Cho. If the Crown is correct that differences between First Nations groups can justify differential treatment in accordance with those differences, then logic and fairness demands that substantial similarities between these groups would require similar treatment. 32

33 (1) The Inuvialuit, Gwich in, and Sahtu [64] In 1977, the Report of the Berger Commission was delivered. The Royal Commission, headed by Justice Thomas Berger, was appointed to assess proposed natural gas development in the Northwest and Yukon Territories. That Commission found that development in the North would likely lead to disruption of the traditional way of life of Aboriginal inhabitants of the area. As such, the Commission recommended any development of the area be preceded by land claims settlements with the local Aboriginal people. [65] As a consequence of Justice Berger s recommendation, the Inuvialuit, the Gwich in, and the Sahtu each negotiated and entered into respective final land claims settlements with the Government of Canada: (1) The Inuvialuit Final Agreement, entered into in 1984; (2) the Gwich in Comprehensive Land Claim Agreement; and (3) the Sahtu Dene and Metis Comprehensive Land Claim Agreement. These agreements recognized the rights and responsibilities of the Inuvialuit, Gwich in, and Sahtu respectively. [66] In addition to recognizing rights, the agreements established means by which Aboriginal peoples could have an ongoing say in what was done to and on the lands stipulated by the agreements. In particular, various new regulatory agencies were created by the agreements. The regulatory agencies of particular relevance in this matter are the Inuvialuit Game Council, the Gwich in Land and Water Board, the Sahtu Land and Water Board, and the Mackenzie Valley Environmental Impact Review Board (MVEIRB). [67] Of these relevant agencies, the MVEIRB plays a crucial role in the establishment of the JRP. The MVEIRB, through its enabling statute the Mackenzie Valley Resource Management Act, anticipates the creation of joint panels to conduct environmental assessments. Pursuant to its enabling legislation, at least half of the MVEIRB s members must be nominated by the Sahtu, the Gwich in, and the Tlicho First Nation Governments. (2) The Deh Cho [68] The Deh Cho First Nation (Deh Cho) is the First Nation group whose territory lies directly north of the Dene Tha in the NWT. The Deh Cho does not have a final land claim settlement with Canada; however, Canada and the Deh Cho are currently in negotiations to this end. Thus far, the Deh Cho has filed a comprehensive land claim agreement with Canada that Canada has accepted. Canada and the Deh Cho have entered into an Interim Measures Agreement and an Interim Resource Development Agreement that give the Deh Cho rights in respect of its claimed territory. Included in these rights is the right of the Deh Cho to nominate one member to the MVEIRB. As stated earlier, as result of its delegate to the MVEIRB, the Deh Cho was able to have observer status during the development of the Cooperation Plan. [69] As a result of litigation initiated by the Deh Cho alleging that Canada had failed to consult with it adequately regarding the MGP, the Deh Cho received a generous settlement agreement. Pursuant to this agreement, the Deh Cho obtained $5 million in settlement funds, $2 million for each fiscal year until 2008 to prepare for the environmental assessment and regulatory review of the MGP, $15 million in economic development funding for this same time 33

34 period to facilitate the identification and implementation of economic development opportunities relating the MGP, and $3 million each fiscal year until 2008 for Deh Cho process funding. F. Summary of First Nations Comparison [70] Unlike the Inuvialuit, the Sahtu, and the Gwich in, the Dene Tha has no settled land claim agreement with Canada. A salient consequence of a settled land claim agreement was the creation of new regulatory agencies: the Inuvialuit Game Council, the Gwich in Land and Water Board, the Sahtu Land and Water Board, and the MVEIRB. These Boards were assigned the task of managing the use of the land and resources within the respectively defined territories. In this case these boards play an even more significant role in that in part through them the members of the JRP were selected. Thus, through these Boards and their representatives, the First Nations of the Inuvialuit, Sahtu, and Gwich in were able to consult meaningfully with Canada about the anticipated effects of the MGP. The Dene Tha has no settled land claim agreement, no regulatory board, and no representation on any Board. [71] The Deh Cho, like the Dene Tha, also has no settled land claim agreement. Unlike the Dene Tha, however, the Crown is in the process of negotiating such a final agreement. In the spirit of negotiation, Canada included the Deh Cho in the process for setting up the environmental and regulatory review process for the MGP by permitting them to nominate one member to the MVEIRB. Thus, through its representation on the MVEIRB, the Deh Cho may be in a position to be able to consult meaningfully with Canada. [72] The Dene Tha has no such representation. Its status is purely that of intervener. Through its lack of representation on any boards or panels engaged in conducting the environmental and regulatory review processes themselves, it will always be an outsider to the process. [73] The Crown justifies this differential treatment on the basis that different First Nations will have different rights and thus it is reasonable to treat each differently in accordance with their differences. The primary differences between the Dene Tha and the other First Nations here are: (1) the Dene Tha has no settled land claim agreement and are not in the process of negotiating one, and (2) the Dene Tha s uncontested territory lies south of the NWT Alberta border. [74] Neither difference is legally relevant as to the existence of the duty to consult the Dene Tha or the time at which the duty arose. It may be relevant to how the consultations are carried out. That the Dene Tha has no settled land claim agreement is not sufficient to exclude the duty to consult as it has, as a minimum, a constitutionally equivalent agreement with Canada about its rights as manifest in Treaty 8. The location of the Dene Tha s affected territory (south of 60) also is irrelevant to justification for exclusion because the scope of the JRP includes the Connecting Facilities as part of its consideration of the whole MGP. [75] The conduct of the federal government in involving and consulting every aboriginal group affected by the MGP but the Dene Tha undermines the Ministers argument that it was 34

35 premature to consult with the Dene Tha when the regulatory/environmental processes were being created. III. DUTY TO CONSULT TIMING AND CONTENT A. Introduction [76] The concept and recognition of the fiduciary duty owed by the Crown toward Aboriginal peoples was first recognized in Guerin v. Canada, 1984 CanLII 25 (S.C.C.), [1984] 2 S.C.R. 335, 13 D.L.R. (4 th ) 321. The duty to consult, originally, was held by the Courts to arise from this fiduciary duty (see R. v. Sparrow, 1990 CanLII 104 (S.C.C.), [1990] 1 S.C.R. 1075). [77] The Supreme Court of Canada in three recent cases Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 S.C.R. 511, 2004 SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (CanLII), [2004] 3 S.C.R. 550, 2004 SCC 74; and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] S.C.J. No. 71, 2005 SCC 69 has described a more general duty arising out of the honor of the Crown. This duty includes the duty to consult. [78] In Guerin, the Supreme Court of Canada held that a fiduciary obligation on behalf of the Crown arose when the Crown exercises its discretion in dealing with land on a First Nation s behalf. In R. v. Sparrow, 1990 CanLII 104 (S.C.C.), [1990] 1 S.C.R. 1075, 70 D.L.R. (4 th ) 385, the Court expanded this duty to encompass protection of Aboriginal and treaty rights. Even with this expansion, however, the fiduciary duty did not fit many circumstances. For example, the duty did not make sense in the context of negotiations between the Crown and First Nations with respect to land claim agreements, as the Crown cannot be seen as acting as a fiduciary and the band a beneficiary in a relationship that is essentially contractual. The duty also encountered problems in conjunction with the Crown s obligations to the public as a whole. It is hard to justify the Crown acting only in the best interests of one group especially when this might conflict with its overarching duty to the public at large. [79] In Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, 220 D.L.R. (4 th ) 1, 2002 SCC 79, Justice Binnie of the SCC noted that the fiduciary duty does not exist in every case but rather is limited to situations where a specific First Nation s interest arises. As Binnie explained at paragraph 81 of that judgment: But there are limits [to the fiduciary duty of the Crown]. The appellants seemed at times to invoke the fiduciary duty as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship. This overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests. [80] In light of the decision in Wewaykum, in order for the purpose of reconciliation which underpins s. 35 of the Constitution Act, 1982 to have meaning, there must be a broader duty on the Crown with respect to Aboriginal relations than that imposed by a fiduciary relationship. Hence, in Haida Nation, the Court first identified the honor of the Crown as the source of the 35

36 Crown s duty to consult in good faith with First Nations, and where reasonable and necessary, make the required accommodation. As such, the Crown must consult where its honor is engaged and its honor does not require a specific Aboriginal interest to trigger a fiduciary relationship for it to be so engaged. Another way of formulating this difference is that a specific infringement of an Aboriginal right is no longer necessary for the Government s duty to consult to be engaged. [81] The major difference between the fiduciary duty and the honor of the Crown is that the latter can be triggered even where the Aboriginal interest is insufficiently specific to require that the Crown act in the Aboriginal group s best interest (that is, as a fiduciary). In sum, where an Aboriginal group has no fiduciary protection, the honor of the Crown fills in to insure the Crown fulfills the section 35 goal of reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [82] In assessing whether the Crown has fulfilled its duty of consultation, the goal of consultation which is reconciliation must be firmly kept in mind. The goal of consultation is not to be narrowly interpreted as the mitigation of adverse effects on Aboriginal rights and/or title. Rather, it is to receive a broad interpretation in light of the context of Aboriginal-Crown relationships: the facilitation of reconciliation of the pre-existence of Aboriginal peoples with the present and future sovereignty of the Crown. The goal of consultation does not also indicate any specific result in any particular case. It does not mean that the Crown must accept any particular position put forward by a First Nations people. B. The Trigger for Consultation [83] The trigger for the Crown s duty to consult is articulated clearly by Chief Justice McLachlin in Haida Nation at paragraph 35: But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it: see Halfway River First Nation v. British Columbia (Minister of Forests), 1997 CanLII 2719 (BC S.C.), [1997] 4 C.N.L.R. 45 (B.C.S.C), at p. 71, per Dorgan J. [84] There are two key aspects to this triggering test. First, there must be either an existing or potentially existing Aboriginal right or title that might be affected adversely by Crown s contemplated conduct. Second, the Crown must have knowledge (either subjective or objective) of this potentially existing right or title and contemplate conduct might adversely affect it. There is nothing in the Supreme Court decisions which suggest that the triggers for the duty are different in British Columbia than in other areas of Canada where treaty rights may be engaged. [85] Thus, the question at issue here is when did the Crown have or can be imputed as having knowledge that its conduct might adversely affect the potential existence of the Dene Tha aboriginal right or title? In other words, did the setting up of the regulatory and environmental processes for the MGP constitute contemplation of conduct that could adversely 36

37 affect a potential aboriginal right of the Dene Tha? Given the scope of the MGP and its impact throughout the area in which it will function, it is hardly surprising that the parties are in agreement that the construction of the MGP itself triggers the Crown s duty to consult. Indeed the Crown engaged in that duty with every other aboriginal group. C. Content of the Duty to Consult and Accommodate [86] Whenever the duty of consultation is found to have begun, whether the duty was breached depends on the scope and content of this duty. Again Chief Justice McLachlin s comments in Haida Nation are applicable: 39 The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. Hence, unlike the question of whether there is or is not a duty to consult, which attracts a yes or no answer, the question of what this duty consists is inherently variable. Both the strength of the right asserted and the seriousness of the potential impact on this right are the factors used to determine the content of the duty to consult. [87] Four paragraphs later, at 43-45, McLachlin C.J.C. invokes the image of a spectrum to illustrate the variable content of the duty to consult: Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. '[C]onsultation' in its least technical definition is talking together for mutual understanding : T. Isaac and A. Knox, The Crown's Duty to Consult Aboriginal People (2003), 41 Alta. L. Rev. 49, at p. 61. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the 37

38 opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary. [88] To summarize, at the lowest end of the spectrum, the duty to consult requires the Crown to give notice, disclose information, and discuss any issues raised in response to said notice. On the highest end of the spectrum, the duty to consult requires the opportunity to make submissions for consideration, formal participation in the decision-making process, and the provision of written reasons that reveal that Aboriginal concerns were considered and affected the decision. D. Standard of Review Whenever a court reviews any agency action or inaction, it must have a "standard of review" by which to judge whether it will overturn the agency action or inaction. A high standard of review connotes a high degree of "deference," and thus means the court will be reluctant to overturn the agency action or inaction. A low standard of review means that the court will carefully scrutinize the agency action or inaction, and be more willing to substitute its judgment for that of the agency's, being more willing to overturn agency action or inaction.] [97] Whether or not the government s actions/efforts after the duty to consult arose complied with this duty, however, would be judged on a reasonableness standard, assuming that it actually engaged in consultation. The issue would be whether it had engaged in reasonable consultation or made reasonable efforts to do so. 38

39 E. Application of the Law to the Dene Tha (1) When did the Duty Crystallize? [98] The issue is: at what time did the Crown possess actual or constructive knowledge of an aboriginal or treaty right that might be adversely affected by its contemplated conduct? (No claim to Aboriginal title has been brought before this Court). [99] There are three components to this question: (1) did the Crown have actual or constructive knowledge of an aboriginal or treaty right? (2) did it have actual or constructive knowledge that that right might be affected adversely by its contemplated conduct? and (3) what is the conduct contemplated? [100] Dealing with the third question first, the conduct contemplated here is the construction of the MGP. It is not, as the Crown attempted to argue, simply activities following the Cooperation Plan and the creation of the regulatory and environmental review processes. These processes, from the Cooperation Plan onwards, were set up with the intention of facilitating the construction of the MGP. It is a distortion to understand these processes as hermetically cut off from one another. The Cooperation Plan was not merely conceptual in nature. It was not, for example, some glimmer of an idea gestating in the head of a government employee that had to be further refined before it could be exposed to the public. Rather, it was a complex agreement for a specified course of action, a road map, which intended to do something. It intended to set up the blue print from which all ensuing regulatory and environmental review processes would flow. It is an essential feature of the construction of MGP. [101] Turning now to the first question, the right in question is the Dene Tha Treaty 8 right. As it is a signatory to the treaty agreements, the federal government has imputed knowledge of the existence of treaty rights (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388). There is no dispute that the Dene Tha has Treaty 8 rights in the territory in which the MGP and Connecting Facilities will run, and the federal government has knowledge of these rights. At the time of the Cooperation Plan, all versions of the proposed routing of the pipeline envisioned it going through Dene Tha Treaty 8 territory in Alberta. [102] The Mikisew decision referred to above is particularly applicable and is virtually on all fours with this judicial review. The decision involved affected rights under Treaty 8 in respect of the Mikisew Cree First Nation. The subject matter was a new road to be built through the Mikisew s territory (but not through a reserve) and the failure of the government to consult despite a public comment process. [103] The Court held that any consultation must be undertaken with the genuine intention to address First Nation concerns. In the present case there was no intention to address the concerns before the environment and regulatory processes were in place. [104] The Court also held that a public forum process is not a substitute for formal consultation. That right to consultation takes priority over the rights of other users. Therefore the 39

40 public comment process in January 2002 in respect of the Cooperation Plan and that of July 2004 in respect of the Regulators Agreement, JRP Agreement and Terms of Reference is not a substitute for consultation. [105] Furthermore, there is no dispute that the federal government contemplated that the construction of the MGP had the potential of adversely affecting Aboriginal rights. It admitted on numerous occasions that it recognized it owed a duty of consultation to the Dene Tha upon construction of the MGP. [106] The precise moment when the duty to consult was triggered is not always clear. In Haida, the Court found that the decision to issue a Tree Farm License (T.F.L) gave rise to a duty to consult. A T.F.L. is a license that does not itself authorize timber harvesting, but requires an additional cutting permit. The Court held that the T.F.L. decision reflects the strategic planning for utilization of the resource and that [d]ecisions made during strategic planning may have potentially serious impacts on Aboriginal right and title. [Emphasis added. See Haida paragraph 76] [107] From the facts, it is clear that the Cooperation Plan, although not written in mandatory language, functioned as a blueprint for the entire project. In particular, it called for the creation of a JRP to conduct environmental assessment. The composition of the JRP was dictated by the JRP Agreement, an agreement contemplated by the Cooperation Plan. The composition of this review panel and the terms of reference adopted by the panel are of particular concern to the Dene Tha. In particular, the Dene Tha had unique concerns arising from its unique position. Such concerns included: the question of the enforceability of the JRP s recommendations in Alberta and funding difficulties encountered by the Dene Tha as result of its not qualifying for the north of 60 funding programs (a funding program apparently available only to those First Nations bands north of the 60º parallel). The Dene Tha also had other issues to discuss including effects on employment, skill levels training and requirements and other matters directly affecting the lives of its people. [108] The Cooperation Plan in my view is a form of strategic planning. By itself it confers no rights, but it sets up the means by which a whole process will be managed. It is a process in which the rights of the Dene Tha will be affected. [109] There can be no question that the Crown had, at the very least, constructive knowledge of the fact that the setting up of a Cooperation Plan to coordinate the environmental and regulatory processes was an integral step in the MGP, a project that the Crown admits has the potential to affect adversely the rights of the Dene Tha. [110] The duty to consult arose at the earliest some time during the contemplation of the Cooperation Plan that is, before its finalization in At the latest before the JRP Agreement was executed. For purposes of this case, nothing turns on the fixing of a more precise date as no consultation occurred during the creation of the Cooperation Plan or indeed the other regulatory processes through to July 15,

41 (2) What is the Content of the Duty? [111] The Ministers submitted that the content of the duty in this case fell at the high end of the spectrum. The question here is whether the Crown in its behavior toward the Dene Tha fulfilled the duty. [112] The Crown also asserted that the combination of the JRP, NEB, and CCU worked to discharge it of its duty to consult. As canvassed earlier, none of these entities possessed either separately or together the jurisdiction to engage in consultation. [113] The first time the Crown admits that what it was doing was consultation was the July 14, 2004 meeting between CCU and the Dene Tha, 24 hours before the JRP Agreement draft was finalized. Although there is evidence that the Dene Tha had knowledge of the contents of the JRP draft Agreement prior to this meeting, this is not particularly significant. The first time that the Crown reached out to the Dene Tha was at this meeting. Consultation is not consultation absent the intent to consult. Consultation cannot be meaningful if it is inadvertent or de facto. Consultation must represent the good faith effort of the Crown (reciprocated by the First Nation) to attempt to reconcile its sovereignty with pre-existing claims of rights or title by the First Nation. Thus it is relevant that at the time of this meeting the CCU asserted it was not engaged in aboriginal consultation as no application for the MGP had been filed. The Ministers cannot now argue that the CCU was engaged in consultation. [114] By depriving the Dene Tha of the opportunity to be a participant at the outset, concerns specific to the Dene Tha were not incorporated into the environmental and regulatory process. Among the concerns cited by the Dene Tha, two stand out: its concern over the enforceability of the federal review process conclusions vis-à-vis the Alberta portion of the pipeline (the Connecting Facilities to be operated and owned by Nova Gas Transmission Limited) and the absence of funding to be able to engage in meaningful consultation. [115] At the hearing, the Ministers and IORVL agreed that the construction of the MGP would demand the highest level of consultation from government. It is clear that during the period when the duty to consult first arose at the stage of the Cooperation Plan not even the most minimal threshold of consultation was met. To take one patent example, the Dene Tha was not specifically notified of the creation of the Cooperation Plan. Public consultation processes cannot be sufficient proxies for Aboriginal Consultation responsibilities. As such, the Crown has clearly not fulfilled the content of its duty to consult. [116] Even if one were to take the view that the duty to consult arose when the JRP process was being created and finalized, the duty was not met. The duty to consult cannot be fulfilled by giving the Dene Tha 24 hours to respond to a process created over a period of months (indeed years) which involved input from virtually every affected group except the Dene Tha. It certainly cannot be met by giving a general internet notice to the public inviting comments. [117] This conduct would not even meet the obligation to give notice and opportunity to be heard which underlies the administrative law principle of fairness much less the more onerous constitutional and Crown duty to consult First Nations. 41

42 [118] The Court s conclusion is that there was a duty to consult with respect to the MGP; that the duty arose between late 2000 and early 2002; that the duty was not met at this time because there was no consultation whatsoever; that the meetings in July 2004 cannot be considered reasonable consultation. [119] In the face of the Court s conclusion that the duty to consult had been breached, it is necessary to consider the remedy which should flow. The remedies must address the rights of the offended party, and be practical and effective and fair to all concerned including those who played no role in the Crown s breach of its duty. IV. REMEDY [120] The first remedy is a declaration that the Respondents Minister of Environment, Minister of Fisheries and Oceans, Minister of Indian and Northern Affairs Canada, and the Minister of Transport are under a duty to consult with the Dene Tha in respect of the MGP, including the Connecting Facilities. The Court further declares that the Ministers have breached their duty to consult. [133] To preserve the current situation until a final remedy order is issued, the members of the JRP shall be enjoined from considering any aspect of the MGP which affects either the treaty lands of the Dene Tha or the aboriginal rights claimed by the Dene Tha. They shall be further enjoined from issuing any report of its proceedings to the National Energy Board. [134] The Court will hold a remedies hearing, after hearing from the parties as to the issues which should be addressed at that hearing. Those issues shall include but not be limited to: whether the Crown should be required to appoint a Chief Consulting Officer (similar to a Chief Negotiator in land claims) to consult with the Dene Tha ; the mandate for any such consultation; the provision of technical assistance and funding to the Dene Tha to carry out the consultation; the role, if any, that the Court should play in the supervision of the consultation; and the role that any entities including the JRP and NEB should have in any such consultation process. [135] Therefore, the application for judicial review will be granted with costs. A formal order will issue. Judge Michael L. Phelan 42

43 Appendix D Salteau First Nations v. British Columbia (Oil and Gas Commission) 2004 BCCA 286, 8 C.E.L.R. (3d) 161 Court of Appeal for British Columbia [1] RYAN J.A.: This is an appeal by Chief Apsassin on his behalf and on behalf of the members of the Saulteau First Nations, from the order of Mr. Justice Cohen pronounced January 27, 2004, dismissing their application for judicial review. I will refer to the appellants, as did their counsel, as Saulteau, or the Saulteau people. [2] The application for judicial review sought to quash a decision of the British Columbia Oil and Gas Commission, made March 14, 2003, under sections of the Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361, which authorized Vintage Petroleum Canada Ltd. to construct a sour gas test well site within the traditional territory of the Saulteau people. [3] The Saulteau people raise two grounds of appeal which are stated by counsel in this way. The learned Chambers Judge erred in: (i) failing to properly apply a standard applicable to fiduciaries to the question of whether the Commission properly discharged its constitutional and fiduciary obligations to the Saulteau to ensure that the substance of their concerns about their Treaty rights had been addressed; and (ii) failing to find that the unstructured discretion to infringe treaty rights contained in the legislative scheme in question unjustifiably infringed Saulteau s treaty rights. [4] The Oil and Gas Commission Act, S.B.C. 1998, c. 39, establishes the Oil and Gas Commission. The Commission consists of a Board of two directors: one serves as the Commissioner and the other as the Deputy Commissioner. [5] Section 2(5) of the Oil and Gas Commission Act provides that the Commission is an agent of the government. [7] Section 4 provides the following: 4 For greater certainty, the provisions of this Act are intended to respect aboriginal and treaty rights in a manner consistent with section 35 of the Constitution Act, [9] Sections 83, 89, and 93 of the Petroleum and Natural Gas Act, supra, provide: s. 83 A person must not begin to drill, or drill or operate, a well except under a subsisting well authorization. 43

44 s. 89 A person must not begin to drill or drill a test hole except under a subsisting test hole authorization under this Act. s. 93(1) The commission may grant, subject to conditions, restrictions and stipulations, or refuse to grant a well authorization or test hole authorization. (2) The commission must keep a record of each well authorization and test hole authorization. [10] Pursuant to s. 1 of the Petroleum and Natural Gas Act, the commission referred to in these sections is the Oil and Gas Commission. [11] Section 90 of the Petroleum and Natural Gas Act, supra, provides that the application for a test hole authorization must be made to the Commission and is not valid unless it is accompanied by a fee and a statement setting out certain particulars of what is intended to be done. A formal hearing is not anticipated by the legislation. [12] In the case at bar, the Commission delegated to James Gladysz, an employee of the Oil and Gas Commission, the responsibility of deciding whether to issue a test hole authorization to Vintage. [13] For purposes of the judicial review Mr. Gladysz filed an affidavit containing the written reasons he issued March 14, 2003, granting the authorization; copies of written material he considered; and, a recitation of the oral comments made by staff members and members of the Saulteau people that he took into account in making his decision. [14] The Commission s order reads in part: [17] "Additional Conditions of Approval for WA 15861, Vintage Gates W6M",: 1. The Operator shall submit to the Commission prior to the commencement of construction activities associated with the subject well, an access management plan including the proposed pipeline corridor and any all-season access roads anticipated in relation to the subject well. 2. The Operator shall submit to the Commission prior to the commencement of drilling the subject well, a reclamation plan for this well location and the associated disturbances. 3. The wellsites shall be adequately dyked and trenched to contain any escaping formation water, oil, drilling fluid, waste, chemical substances, or refuse to ensure that no hazardous fluid or material leaves the location, and potentially migrates into nearby watercourses. 44

45 4. The Operator shall ensure wildlife trails are kept open where possible during the construction and reclamation phases of the well site project in order to minimize the impacts to their travel corridors. 5. The Operator shall temporarily fence the perimeters of all drilling sump sites, on, or off the well site, in order to restrict wildlife access onto those areas during the drilling and completion operations of this well. The sump locations shall be closely monitored throughout the operations and, if necessary, additional fencing may be required to further restrict animal access to these sites. [15] The evidence disclosed that Saulteau, together with its closest neighbour, the West Moberly First Nation, had for many years expressed concern about the encroachment of oil and gas development in the territory in question. They advised both the provincial and federal governments that their Treaty 8 rights were being eroded without meaningful consultation. With respect to the application of Vintage to drill a test well site, Saulteau believed that wildlife and habitat data used by the Crown was unreliable or incomplete. The Saulteau were also concerned that the incremental nature of the oil and gas approval process meant that the cumulative effects of development on their ability to exercise Treaty 8 rights were not being addressed. [16] Saulteau says that because of these legitimate concerns, the Commission erred in failing to order a cumulative effects study before it considered Vintage s application for a test well. The Commission was bound to do so, says Saulteau, because without such a study, the Commission was unable to fully discharge its fiduciary duties to consult with and accommodate the Saulteau people before permitting activity which potentially infringed upon their traditional rights. [17] The Chambers Judge concluded that the Commission did not breach its constitutional duty under the Act to consult and accommodate the Saulteau people. [18] As I understand the reasoning of the Chambers Judge, it was this. The analysis begins with s. 35(1) of the Constitution Act which provides: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and confirmed. [19] Section 35(1) rights are not absolute. They may be infringed by the federal and provincial governments in the exercise of their powers. However, if the aboriginal people in question can establish a potential prima facie infringement of their rights, the governmental power must demonstrate that it has consulted and accommodated them before the infringement takes place. As Lambert J.A. stated in Haida Nation v. B.C. (Ministry of Forests) 2002 BCCA 147 (CanLII), (2002), 99 B.C.L.R. (3d) 209 (C.A.) ("Haida (No. 1)"), (leave to appeal to S.C.C. granted) at para. 55: The discharge of the obligation to consult, as expressed in Sparrow, Gladstone, and Degamuukw, has been framed as an element among the circumstances which would justify a prima facie infringement of the aboriginal title or aboriginal rights. As I have 45

46 said, the consultation must take place before the infringement. But where there are fiduciary duties of the Crown to Indian peoples it is my opinion that the obligation to consult is a free standing enforceable legal and equitable duty. It is not enough to say that the contemplated infringement is justified by economic forces and will be certain to be justified even if there is no consultation. The duty to consult and seek an accommodation does not arise simply from a Sparrow analysis of s. 35. It stands on the broader fiduciary footing of the Crown s relationship with the Indian peoples who are under its protection. [20] The Chambers Judge concluded that throughout the decision making process, the Commission, including Mr. Gladysz, had a fiduciary and constitutional obligation to engage in good faith consultation with the Saulteau people. [21] The Chambers Judge said this: I turn then to my consideration of whether the Commission in arriving at its decision on the application discharged its duties to the Saulteau First Nation. The key to my conclusion turns on whether I accept the petitioner s position that the Commission had a legal obligation to accommodate the Saulteau First Nation s request to complete a cumulative effects assessment before granting the Well authorization. [22] In the end the Chambers Judge concluded that it was not incumbent on the Commission to complete a cumulative effects assessment before granting the Well authorization. [23] Before stating the reasons for this finding the Chambers Judge referred to a number of cases which outline the scope of the duty to consult. For the purposes of this appeal it is necessary to refer to only two of those cases. First, in Delgamuuk v. British Columbia, 1997 CanLII 302 (S.C.C.), [1997] 3 S.C.R. 1010, the Chief Justice said this at para. 168:... There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title [here, treaty rights] is justified, in the same way that the Crown s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law... The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard in consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal rights. (My emphasis.) 46

47 [24] And, in R. v. Marshall (No. 2) 1999 CanLII 666 (S.C.C.), (1999), 179 D.L.R. (4th) 193 (S.C.C.), the court noted at para. 43:... This variation [in the nature and scope of the duty to consult] may reflect such factors as the seriousness and duration of the proposed restriction, and whether or not the Minister is required to act in response to unforeseen or urgent circumstances. As stated, if the consultation does not produce an agreement, the adequacy of the justification of the government s initiative will have to be litigated in the courts. [25] The Chambers Judge summed up his conclusions in this way: [155] First, I am mindful that the SFN [Saulteau First Nation] did not categorically object to the Application. Their objection was based on the ground that the Application should not be granted until the Commission had first undertaken a cumulative effects assessment. However, I am also mindful of the principle that the duty on the Crown to consult and accommodate is informed by the level of interference with the First Nation's treaty rights. In the instant case, the factual context in which the Decision Maker concluded that, notwithstanding the SFN's concerns, the Commission should grant the Application is, as follows: 1. At no time during the consultation process leading up to the Well Authorization did the SFN identify to the Commission any direct or indirect impacts that the activities associated with the Application would or might have upon plants, fish, birds or wildlife. 2. Commission staff reported that there was no concern with the activities associated with the Application from the land and habitat point of view. 3. Commission staff reported that the Commission through consultation with the SFN, the Ministry of Water Land and Air Protection and the MSRM, was entering into an agreement to produce pilot studies of wildlife and habitat capability in the area, and that site specific conditions would be considered to mitigate some of the cumulative effects. 4. Many of the SFN's concerns expressed throughout the consultation process leading up to the Well Authorization were about the potential effects of large scale oil and gas development on the exercise of their treaty rights. The purpose of the Well is to locate potential hydrocarbons. Thus, activities associated with the development of Vintage's oil and gas holdings in the area if a successful well is drilled will necessarily engage a further approval process with the Commission, including a process of consultation with the SFN. [156] In my opinion, to accept the petitioner's position on this issue, in light of the above circumstances, would be contrary to the fundamental principles reflected in the authorities. I am satisfied that faced with the evidence available to him in the absence of any contradictory 47

48 information from the SFN, the Decision Maker took into account all of the relevant factors: he considered the consultation process; he clearly set his mind to the direct and indirect environmental, cumulative and socio-economic effects flowing from the Application; he recognized the importance of the ongoing ability of the SFN to undertake and practice their Treaty 8 rights; he recognized that it was vital to protect the SFN's treaty rights through the establishment of a planning process; and, finally, he imposed conditions on the Well Authorization. [157] In my opinion, the SFN's insistence that the Commission did not listen to or try to seriously accommodate their legitimate concerns is unfounded. I find that the Commission met its constitutional and fiduciary obligations to the SFN in its consideration of the Application and the Petition must be dismissed on this issue. [26] On this appeal the appellant submitted that in these paragraphs the Chambers Judge did not apply the proper test in determining whether the Commission had properly fulfilled its obligations. Counsel for the appellant submitted that the Chambers Judge applied a prudent person test to the decision of Mr. Gladysz, rather than asking what a fiduciary would do in the circumstances. [27] I am of the view that given his findings, the Chambers Judge did not err. He found that the Commission had a fiduciary obligation to the Saulteau people, that this obligation required the Commission to consult with the Saulteau before determining whether to issue the test well authorization, and that the scope of the duty was met by the nature of the consultation. The Chambers Judge thoroughly analyzed the evidence and the arguments before him. I cannot say that he was wrong in reaching the conclusion that Mr. Gladysz properly discharged any fiduciary duty that he may have owed to the appellants. [28] To this I would add that Mr. Gladysz did not simply listen to the concerns of the Saulteau people, the evidence shows he investigated them to a certain degree and issued an authorization which contained a number of conditions which sought to address their concerns. I have reproduced those conditions in paragraph [15] of these reasons for judgment. In my view, this further supports the conclusion of the Chambers Judge that the authorization minimally affected the treaty rights of the Saulteau people. [29] Before leaving this ground of appeal, I should mention that counsel for the Commission urged this court to find that while the Commission owed a fiduciary duty to the Saulteau people in its fact-gathering process, it did not owe them such a duty in its adjudicative process, that is, when it came time to determine whether the applicant, Vintage, ought to receive a test well authorization. Counsel submitted, in effect, that to say that the Commission owed a fiduciary duty to the Saulteau people at the adjudication stage would create an impediment to a fair resolution of the issue as between the parties. Given my findings, it is not necessary to resolve that issue on this appeal. [30] I would dismiss the first ground of appeal. 48

49 [31] The second ground of appeal is that the Chambers Judge erred in dismissing the appellant s constitutional challenge to the Act. The Chambers Judge fully addressed the arguments of the appellant on this ground with which I am in substantial agreement. I would dismiss the second ground of appeal. [32] In the result I would dismiss the appeal. 49

50 Appendix E Draft Agreement Between the National Energy Board and the Minister of the Environment concerning the Joint Review Panel of the Enbridge Gateway Project Source URL: PREAMBLE WHEREAS the National Energy Board (the Board) has regulatory responsibilities for interprovincial and international natural gas, oil and commodity pipelines pursuant to the National Energy Board Act (the NEBA) and for environmental assessment pursuant to the NEBA and the Canadian Environmental Assessment Act (the CEAA); WHEREAS the Minister of the Environment has statutory responsibilities pursuant to the CEAA and the Canadian Environmental Assessment Agency (the Agency) has administrative responsibilities under the CEAA; WHEREAS an application for a Certificate of Public Convenience and Necessity is expected to be filed with the Board pursuant to Part III of the NEBA by Gateway Pipeline Inc. in respect of the Enbridge Gateway Project (the Project); WHEREAS certain components of the Project are within the jurisdiction of the Board and the CEAA applies to all aspects of the Project; WHEREAS the Board, Fisheries and Oceans Canada, Transport Canada and Indian and Northern Affairs Canada are responsible authorities for the Project under the CEAA and Environment Canada and Natural Resources Canada may be responsible authorities for the Project under the CEAA; WHEREAS the Board and the responsible authorities recommended that the Minister of the Environment refer the Project to a review panel pursuant to section 25 of the CEAA; WHEREAS the Project, if filed, requires a public regulatory hearing pursuant to the NEBA; WHEREAS the Minister of the Environment has determined that a Joint Review Panel should be established pursuant to paragraph 40(2)(a) of the CEAA to consider the Project; WHEREAS the Board, the Agency, and the responsible authorities recognize that a TERMPOL Review Process, which will be coordinated by Transport Canada, will occur separately from this Joint Review Panel Process; WHEREAS the Parties to this Agreement wish to avoid unnecessary duplication that could arise from carrying out the environmental assessment requirements separately while maintaining a high quality environmental assessment process under the CEAA and the NEBA; 50

51 NOW THEREFORE, the Parties agree to undertake to establish a Joint Review Panel as outlined below and in accordance with the Terms of Reference attached as an Appendix to this Agreement, for the environmental assessment of the Project as described in the Project Description. 2.0 DEFINITIONS In this Agreement: Agency means the Canadian Environmental Assessment Agency; Board means the National Energy Board; Board s Procedures means the National Energy Board Rules of Practice and Procedure, 1995, as amended and made pursuant to section 8 of the NEBA; Board s Public Hearing Process means the public hearings process followed by the Board under the NEBA to assess a proposed Project and the environmental effects of a Project; CEAA means the Canadian Environmental Assessment Act; Environment has the same meaning as set out in section 2 of the CEAA; Environmental Effect has the same meaning as set out in section 2 of the CEAA; Federal Authority has the same meaning as set out in section 2 of the CEAA; Follow-up Program has the same meaning as set out in section 2 of the CEAA; Government Participant means a Federal Authority or a Provincial Department who has an environmental assessment responsibility and who has filed a declaration to have a role of Government Participant, which is distinct from interventions, letters of comments, or written or oral statements; Intervenor, 51

52 as defined in the Board s Procedures, means a person who establishes an interest in a proceeding by filing a written intervention in accordance with the Board s Procedures; Joint Review means the assessment of the environmental effects of the Project to be conducted pursuant to the CEAA and the consideration of the Project application under NEBA; Joint Review Panel means a joint review panel established pursuant to section 6 of this Agreement; Joint Review Panel Report means the report set out in section 6.5 of this Agreement; Jurisdiction has the same meaning as set out in subsection 40(l) of the CEAA; Letter of Comment means a letter referred to in section 30 of the Board s Procedures and means an unsworn written or oral submission that comments on the Project or on any issue related to the review, that describes the nature of that submittor s interest in the Project and provides any relevant information explaining or supporting the submittor s comments. It does not give the submittor an Intervenor status in the review so the submittor cannot cross-examine witnesses or present final argument; NEBA means the National Energy Board Act; Parties mean the signatories to this Agreement; Pipeline has the same meaning as set out in section 2 of the NEBA; Project means the Project as described in the Appendix to this Agreement, and may also be referred to as the Enbridge Gateway Project; Proponent means Gateway Pipeline Inc. who, on behalf of the Gateway Pipeline Limited Partnership, proposes to construct the Project. Gateway Pipeline Inc. is an entity established by Enbridge Inc. Public Registry means the registry established under section 55 of the CEAA, to facilitate public access to records relating to the environmental assessment of the Project; 52

53 Responsible Authority has the same meaning as set out in section 2 of the CEAA; and TERMPOL Review Process refers to the Technical Review Process (TRP) of Marine Terminal Systems and Transshipment Sites. The TRP focuses on a dedicated design ship s selected route in waters under Canadian jurisdiction to its berth at a proposed marine terminal or transshipment site and, specifically, to the process of cargo handling between vessels, or off-loading from ship to shore or vice-versa. 3.0 INTERPRETATION This Agreement: establishes an administrative framework within which the Parties can cooperatively exercise their respective powers and duties established by the CEAA and the NEBA; is a public document that is to be read with and interpreted in a manner consistent with the statutes referenced in a) and the regulations made pursuant to those statures; and does not create any new legal powers or duties, nor does it alter in any way the powers and duties established by the statutes references in a) and the regulations made pursuant to those statutes, and is not legally binding on the Parties. 4.0 GENERAL 4.1 Purpose The primary purpose of this Agreement is to coordinate the environmental assessment required under the CEAA and the NEBA by providing for a review of the environmental effects likely to result from the Project and the appropriate mitigation measures. Nothing in this Agreement should be construed as limiting the ability of the Joint Review Panel to have regard to all considerations that appear to it to be relevant pursuant to section 52 of the NEBA. 4.2 Public Registry As part of the Joint Review, a Public Registry will be maintained in accordance with the requirements of the CEAA. 4.3 Participant Funding Program Participant funding for matters and issues relating to the CEAA will be arranged for the Joint Review and will be administered and managed by the Agency through the Participant Funding Program. The public will be notified of any funding allocation once the list of Intervenors has been established. 5.0 REVIEW UNDER A JOINT REVIEW PANEL PROCESS 5.1 Terms of Reference The Joint Review Panel will conduct a Joint Review of the Project in accordance with the Terms of Reference attached as an Appendix to this Agreement. 53

54 5.2 Joint Review Panel Responsibilities The Joint Review Panel will meet the requirements of the CEAA and the NEBA in the Joint Review of the Project. 5.3 Powers of the Joint Review Panel The Joint Review Panel, when appointed, will issue a Hearing Order in accordance with the Board s Procedures and the procedures outlined in article 6.3 of this Agreement. The Joint Review Panel will have the powers set out in the NEBA and section 35 of the CEAA. 6.0 PROCEDURES FOR THE JOINT REVIEW PANEL 6.1 Joint Review Panel Composition and Appointment The Joint Review Panel will consist of three members. The Joint Review Panel will be composed of no less than two permanent members of the Board. The Minister of the Environment will jointly with the Chairman of the Board, approve the selection of and appoint the Chair of the Joint Review Panel who will be a permanent member of the Board. The second permanent member of the Board will be appointed by the Chairman of the Board. The remaining Joint Review Panel member shall, unless a temporary or permanent member of the Board, satisfy the eligibility requirements for temporary members of the Board and shall be appointed to the Joint Review Panel by the Minister of the Environment. A joint request shall be made by the Minister of the Environment and the Chairman of the Board to the Minister of Natural Resources to recommend to the Governor in Council the appointment of the proposed member as a temporary member of the Board. The members of the Joint Review Panel are to be unbiased and free from any conflict of interest in relation to the Project and are to have knowledge or experience relevant to the anticipated environmental effects of the Project. 6.2 Secretariat to the Joint Review Panel A secretariat will be formed consisting of all relevant and necessary Board staff and persons designated by the Agency to provide administrative, technical and procedural support to the Joint Review Panel. The Agency will designate Agency staff to assist the Joint Review Panel and work cooperatively with the staff to be assigned by the Board. The Agency will ensure that all other activities performed by the Agency staff while assigned to the secretariat are conducted in a way so as to avoid a conflict of interest with this Joint Review. Likewise, the Board will ensure that all other activities performed by the Board staff while 54

55 assigned to the secretariat are conducted in a way so as to avoid a conflict of interest with this Joint Review. 6.3 Joint Review Panel Procedures The Joint Review will follow the National Energy Board Rules of Practice and Procedure, 1995, as amended and made pursuant to section 8 of the NEBA. The Joint Review Panel will: Ensure that open sessions are held with the public, including Aboriginal people, to assist in the formulation of issues that should be considered in the Joint Review, to receive comments on the information to be requested of the Proponent, and to assist individuals and groups in understanding the ways in which they can participate in the hearing process. The location and timing of the sessions will be determined by the Joint Review Panel. Take into consideration comments or submissions received during the sessions held with the public, including Aboriginal people, referred to above, and may, at its discretion, broaden the assessment to reflect these comments and submissions. Require the Proponent to provide evidence regarding potential concerns of Aboriginal people. In addition, evidence may come from Aboriginal people, the Crown, other intervenors, Federal Authorities and Provincial Departments, so that the Joint Review Panel may be fully informed of potential impacts and mitigation when making its decision about the Project. Conduct its Joint Review in a manner which will promote and facilitate participation of the public, including Aboriginal people, by allowing informal opportunities for the public, including Aboriginal people, to convey their views to the Joint Review Panel, including written and oral statements. Government Participant status will also be afforded to Federal Authorities and to Provincial Departments with an environmental assessment responsibility and who file a declaration to this effect. Ensure that the public, including Aboriginal people, have a minimum of 60 days to review the environmental assessment documentation submitted by the Proponent in its initial application and to submit written comments to the Joint Review Panel on it. Provide the public, including Aboriginal people, with the opportunity to review and comment on any additional information submitted to the Joint Review Panel by the Proponent prior to the commencement of final argument, through Letters of Comment. Provide the public, including Aboriginal people, with the opportunity to appear before the Joint Review Panel at a public hearing. 55

56 Ensure a minimum of 45 days notice of the public hearings from the deadline for requesting Intervenor status to the commencement of the public hearings. Ensure that all information produced or received by the Joint Review Panel is made available to the public, including Aboriginal people, pursuant to section 4.2 of this Agreement unless specific procedural rulings or legislative provisions prevent the disclosure of the information. Ensure that public hearings will not proceed until the Joint Review Panel has determined that the documentation appearing on the public record, in the Panel s view, constitutes adequate information to proceed to public hearings. 6.4 Aboriginal Crown Consultation The manner in which the Crown proposes to consult with Aboriginal people whose potential or established Aboriginal rights could be adversely affected by the Enbridge Gateway Project will be the subject of a separate and more detailed communication, independent of the Joint Review Panel, with all participants. 6.5 Reporting and Decision Making The Joint Review Panel will prepare a report setting out its rationale, conclusions and recommendations relating to the environmental assessment of the Project, including any mitigation measures and follow-up programs and a summary of any comments received from the public, including Aboriginal people. The Joint Review Panel Report shall be prepared in both official languages and submitted to the Minister of the Environment and the Joint Review Panel Report will be published. The Minister of the Environment will forward the Report to all responsible authorities. For the Project to be reviewed under the Joint Review Panel process, the Board and other responsible authorities will together develop a schedule for taking a course of action under subsection 20(1) or 37(1) of the CEAA and for making a recommendation to the Governor in Council under subsection 5(2) of the CEAA. 7.0 AMENDMENTS AND TERMINATION Amendments ot this Agreement may be made upon written notice by a Party to the other Party and upon the mutual consent of the Chairman of the Board and the Minister of the Environment. Any Party may terminate this Agreement upon one month s written notice to the other Party. Subject to section 27 of the CEAA, a Party s eligibility to withdraw from or terminate this Agreement will end at the commencement of the public hearings. The attached Appendix forms an integral part of this Agreement. WHEREAS the Parties hereto have put their signatures this day of Original Signed by: 56

57 The Honourable Jim Prentice Minister of the Environment Gaétan Caron Chairman, National Energy Board APPENDIX Terms of Reference The definitions in the Agreement between the National Energy Board and the Minister of the Environment concerning the Joint Review of the Enbridge Gateway Project will apply to this Appendix. The Joint Review Panel will conduct a review of the environmental effects of the Project and the appropriate mitigation measures based on the Project Description and consideration of the Project application under NEBA. The Joint Review Panel will include in its review of the Project, consideration of the factors identified in this Appendix and the scope of the factors. Project Description The Project includes the construction, operation, decommissioning and abandonment of the following Project components proposed by the Proponent in its Preliminary Information Package and a subsequent submission¹ or likely to be carried out in relation to the physical works proposed by the Proponent, and which may require a federal approval or authorization including: An oil pipeline commencing near Fort Saskatchewan, Alberta and terminating at a new marine terminal located in Kitimat, British Columbia. A condensate pipeline commencing at a new marine terminal in Kitimat, British Columbia and terminating near Fort Saskatchewan, Alberta. There will be a common 30-m wide right-of-way (ROW) for the two pipelines plus extra temporary workspace required for construction. Associated pump stations, a pressure letdown station (oil) and a pressure initiation station (condensate). All-weather road access and electrical power requirements for the pump stations and all-weather road access to a new marine terminal in Kitimat, British Columbia. There will be temporary access roads, campsites, and other support facilities (e.g., borrow pits, stockpile sites) required for construction. Block valves to be situated at the pump stations, selected watercourse crossings, and other locations along the route, as appropriate. 57

58 Pigging facilities at either end of the pipeline system and in selected intermediate locations. Cathodic protection system for pipelines and tanks, including anode beds at selected locations along the pipeline route. Two marine loading and unloading berths (one each for oil and condensate) that have the following common features: Loading and unloading platforms; Breasting dolphins; Mooring dolphins; Gangway tower; Walkway bridges between platform and breasting dolphins; Utility boat floating dock; Oil contingency deployment system with storage platforms; Fire fighting systems; Offshore anchorages in Kitimat Arm or elsewhere; and Pipeline interconnects between the berths and the tankage. In addition to the Project components listed above, the potential environmental effects of, and the public comments related to the marine transportation of oil and condensate associated with the Project within the boundaries of Canadian waters will be considered by the Joint Review Panel. The Parties to this Agreement recognize there will be overlap between the Joint Review Panel environmental assessment process and the TERMPOL Review Process coordinated by Transport Canada with respect to certain aspects of Project-related shipping activities. Factors to be Considered During Joint Review The Joint Review will include a consideration of the following factors listed in subsections 16(1)(a) to (d) and 16(2) of the CEAA: The environmental effects of the Project, including the environmental effects of malfunctions or accidents that may occur in connection with the Project and any cumulative environmental effects that are likely to result from the Project in combination with other projects or activities that have been or will be carried out; The significance of the effects referred to above; Comments from the public, including Aboriginal people, that are received during the review; Measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the Project; The purpose of the Project; 58

59 Alternative means of carrying out the Project that are technically and economically feasible and the environmental effects of any such alternative means; The need for, and the requirements of, any follow-up program in respect of the Project; and The capacity of renewable resources that is likely to be significantly affected by the Project to meet the needs of the present and those of the future. In accordance with subsection 16(1)(e) of the CEAA, the assessment by the Joint Review Panel will also include a consideration of the following additional matters: Need for the Project Alternatives to the Project Description of the present environment which may reasonable be expected to be affected, directly or indirectly, by the Project, including adequate baseline characterization; Measures to enhance any beneficial environmental effects; and Proposal for Environmental Protection, Environmental Monitoring, Contingency and Emergency Response Plans. Scope of Factors The Joint Review will consider the potential effects of the Project including those resulting from the construction, operation, decommissioning, abandonment or other undertakings and activities that are proposed by the Proponent or that are likely to be carried out in relation to the physical works proposed by the Proponent, within spatial and temporal boundaries which encompass the periods and areas during and within which the Project may potentially interact with, and have an effect on, components of the environment. These boundaries will vary with the issues and factors considered, and will reflect: the natural variation of a population or ecological component; the timing of sensitive life cycle phases in relation to the scheduling of the Project; the time required for an effect to become evident the time required for a population or ecological component to recover from an effect and return to a pre-effect condition, including the estimated degree of recovery; the area affected by the Project and undertakings or activities associated with the Project; and the area within which a population or ecological component functions and within which a Project effect may be felt. 59

60 Appendix F Council of the Haida Nation objects to oil pipeline plans Group won't accept risk of tanker spills By George T. Baker, December 3, 2008 PRINCE RUPERT -- The Council of the Haida Nation says it has not been consulted about Enbridge Inc.'s plans to build an oil pipeline running from northern Alberta to Kitimat. CHN representative Robert Davis said the Haida Nation would never accept Enbridge's plan even if it did consult. "The Haida Nation will certainly not accept tanker traffic where we would bear the burden of risk and oil spills in our waters. Our livelihoods would be jeopardized," Davis said. "Many of our neighbour nations are equally concerned about impacts on their lands and water. We are willing to stand united to protect our waters." Davis spoke after the First Nations Summit called for an independent First Nations environmental review of the proposed $4-billion Northern Gateway project. The Haida Nation has been clear that it will oppose any plan that would bring oil tanker traffic to the North Coast area. There is already plenty of traffic west of the Queen Charlotte Islands, with many ships making the trip from Alaska to the western U.S. But opening up the pipeline to Kitimat would put oil tankers into the heart of North Coast waters. That is something northern B.C. first nations want to be very cautious about. The First Nations Summit call followed a Nov. 6 gathering during which hereditary chiefs, elected chiefs and other representatives from six First Nations shared concerns about the Gateway pipeline and coastal tanker traffic. They agreed that current consultation attempts by the federal government and Enbridge do not meet a standard of genuine engagement with First Nations. "Regulators are not respecting the fact that we have a responsibility to protect our ancestral territories, rights, title and interests," said David de Wit, natural resources manager for the Wet'suwet'en First Nations. "Gateway is a major project with significant risks. Yet, the federal government is advancing a decision-making process for Gateway without any provision for addressing aboriginal rights and title. This is unacceptable." Enbridge held an open house in Prince Rupert yesterday to provide its side of the story. The pipeline is to undergo a Joint Review Panel process beginning in early But that process does not take into account risks from coastal tanker traffic and oilsands expansion that would follow pipeline construction, critics say. 60

61 Appendix G Correspondence and National Energy Board position on Aboriginal consultation 61

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67 File ATP-GPI (3200-G073-1) 3 January 2007 Mr. Art Sterritt Executive Director Coastal First Nations Suite 401, 409 Granville Street Vancouver, BC V6C 1T2 Facsimile Dear Mr. Sterritt: Enbridge Gateway Project Environmental Assessment (EA) Process The National Energy Board acknowledges receipt of your letter dated 22 November 2006 to the Minister of the Environment and the Board in which you express concerns on behalf of the First Nations people of the Central and North Coast of British Columbia and request that the establishment of the Joint Review Panel (JRP) and finalizing of the Terms of Reference for the Enbridge Gateway Project (the Project) be put on hold until the work that Canada and First Nations have started is concluded. As you may be aware, after receiving a Preliminary Information Package (PIP) from Gateway Pipeline Inc. (Gateway) on 1 November 2005, the Board anticipated that it would likely be a Responsible Authority under the Canadian Environmental Assessment Act (the CEA Act) with respect to the EA process for the Project. On 9 February 2006, the Board, in consultation with the other Responsible Authorities for the Project, taking into account the PIP, additional information related to public concerns and several letters from potentially affected First Nations, made a recommendation to the Minister of Environment that the Project be referred to a JRP. On 29 September 2006, the Minister of the Environment announced that the Project would be referred to a JRP and issued a draft JRP agreement for comment, the timeframe of which came to an end on 27 November Since then, in a letter from Gateway to the Board and the Canadian Environmental Assessment Agency dated 27 November 2006, the Board has been made aware that due to commercial developments, Gateway has asked that the EA process be delayed until the former pace of commercial activities resumes. /2

68 - 2 - In a letter to the Minister of the Environment dated 18 December 2006, the Board, along with the other Responsible Authorities for the Project, expressed that, as a result of the delay in the development of the Project, they would not be exercising any power or performing any duty or function referred to in section 5 of the CEA Act at this time or in the near future. The letter concluded by saying that the Responsible Authorities for the Project would await the decision of the Minister of the Environment on the next steps in the EA process that has been initiated for the Project. Therefore, the Board notes that any decision on the EA process, whether to delay it or otherwise, is vested with the Minister of the Environment and the Board will respond to the Minister of the Environment s decision accordingly. Yours truly, Michel L. Mantha Secretary c.c. The Honourable Rona Ambrose, Minister of the Environment, Fax: Mr. Scott Streiner, Program Delivery, Vice President, Canadian Environmental Assessment Agency, Fax: Ms. Debra Myles, Canadian Environmental Assessment Agency, Fax:

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90 V V V,/ :j Giya it First Nat/tm 1) S A November 10, 2008 nnn ri i )I. /\ 0: I4 LUUO I\UV -i r Canadian Environmental Assessment Agency 160 Elgin Street 22 Ottawa, Ontario K1AOH3 nd Floor, Attention Peter Sylvester, President National Energy Board 444 Seventh Avenue Southwest Calgary, Alberta T2P 0X8 _\ 9 U Attention: Gaétan Caron, ChairmanlCEO Dear Sirs; Re: Northern Gateway Project The Canadian Environmental Assessment Agency sent us a letter dated October 15, 2008 outlining the CEAA s current intent to engage Aboriginal groups regarding the proposed Joint Review Process for Enbridge s Northern Gateway Project (NGP). We agree that an initial discussion among the appropriate leadership and technical staff of the Agency, National Energy Board and the Gitga at Nation would be useful. Our objective for an initial meeting is to develop a clear understanding of your interests and objectives for the review process and to start collaborating on the design of the review to ensure it meets the test of meaningful consultation. Also, while it is important for you to engage with our Band Council, the Gitga at Hereditary Chiefs and Band Council collaborate on resource management in our territory and both will be represented in all discussions with you. The Gitga at Nation hold Aboriginal title to the lands and waters, and Aboriginal rights to the natural resources in our territory. We have numerous and diverse interests that are intrinsically linked to the health of our marine resources. Since our marine territory encompasses all entrance waters for ships calling on the Port of Kitiniat, the proposed NGP introduces a tremendous level of risk to our community s well-being. And the cumulative effects of this and other developments in our territory would have significant consequences for our way of life. Considering these unique interests, it is clear that the Gitga at First Nation must have a central role in decisions made about the proposed NGP. The magnitude of the project necessitates our inclusion in the design of the regulatory review process to ensure we have the information required to make sound decisions. Our views must be adequately considered before the Agency and NEB move forward on the design and implementation of the review process.

91 The scope the project proposed for review is immense, with significant implications on the environment and on Gitga at Aboriginal Rights and Title. In order to meaningfully participate in the processes designed to address the range funding. This funding must be sufficient to enable the Gitga at Nation to participate fully in all aspects the review, and to allow for meaningful consultation. of of of potential impacts, the Gitga at must receive capacity We look forward to initiating discussions with you and suggest that an initial meeting should take place in Hartley Bay this autumn or early in the new-year. Please contact David Benton, Band Manager, at the above coordinates, to formulate the details the meeting. Sincerely, Gitga at First Nation of -- 4-t Wahmoodrnx (Albert áifton) Hereditary Chief, Gitga at First Nation Sin axe et (Ernie Hill Jr.) Hereditary Chief, Gitga at First Nation Chief Councilor, Hartley Bay Village Council cc: Brett Maracle, CEAA David Benton, Band Manager 2

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94 January 30, 2009 VIA TO: Canadian Environmental Assessment Agency Place Bell Canada 160 Elgin Street, 22 nd Floor Ottawa, Ontario K1A 0H3 Attention: Jon Pierce, Project Manager Dear Sir, RE: CEAA/NEB Joint Review Panel for Enbridge Northern Gateway Project This letter follows up on our 14 January 2009 meeting in Hartley Bay with CEAA and NEB representatives. The letter focuses on four issues. First, we seek to confirm our understanding of the Crown s stated position on Crown-Gitga at consultation in regard to the Enbridge Northern Gateway project (the Project ). Second, we seek clarification on other key discussion points. Third, we provide a response to the Crown s stated position on Crown-Gitga at consultation. Fourth, we provide comment regarding what Gitga at is entitled to and requires in order to engage meaningfully in technical review and CEAA consultation activities related to the Project. The Crown s Stated Position on Project Consultation We wish to confirm that the Crown s position on consultation with respect to the Project as described to us at the 14 January 2009 meeting includes the following: 1. CEAA represents the Crown in Crown-Gitga at consultation in regard to the Project and its ramifications; 2. CEAA sees the subject matter of Crown-Gitga at consultation as falling into three categories: a) the content of the Joint Review Panel Agreement (JRPA) and the associated Terms of Reference (ToR); b) the content of the final report that the Joint Review Panel will submit to Cabinet (through the Minister of the Environment); and c) the residue of Gitga at rights-related matters/issues falling outside the Joint Review Panel s mandate; Gitga at Letter to CEAA and NEB 30 Jan 2009

95 3. CEAA sees its consultation on the draft JRPA and ToR as having already begun and extending up to but not beyond the end of the 60 day public review period, beginning 9 February 2009; 4. CEAA intends to delegate procedural aspects of consultation, specifically the sharing of technical information about the project and the results of social and environmental assessments, to the Project proponent; 5. CEAA will complete its consultation on the Joint Review Panel s Report prior to Cabinet making the final decision; 6. CEAA will ensure that Gitga at s comments on the final Report are available to Cabinet before the decision is made; 7. In their dealings with Gitga at, neither the Joint Review Panel nor the Proponent represents the Crown in regard to the Crown s consultation and accommodation duties vis-à-vis the Gitga at Nation and its constitutional rights; 8. CEAA agrees that the Project to be reviewed by the JRP will include marine transportation and that the final JRPA will clearly express this; and 9. CEAA is working on a document outlining its approach to consultation, as envisioned in section 6.4 of the draft JRPA. The above list identifies our key uncertainties and related questions but is not exhaustive. Our notes of the meeting record discussion on other aspects of the Crown s position on consultation that we may yet need to clarify. In the meantime, if you believe that any of the above items misrepresents what was told to us or requires qualification or further explanation, please inform us at your earliest convenience. Requested Clarifications We would also like clarification on a number of other points arising in or from the meeting. First, CEAA, specifically Mr. Pierce, left us with the notion that the CEAA will soon be producing documents that describe the Crown s approach to consultation on the Project, and these documents would not be the final word on the consultation process. It is our understanding that there would be opportunity to discuss the final form of the Crown- Gitga at consultation process. We trust our assumption is correct since the courts affirm that the first step in the consultation process is to discuss the process itself (e.g. Gitxsan First Nation v. British Columbia (Minister of Forests), 2002 BCSC 1701 at para. 113; Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697 at para. 113). Please confirm whether our assumption is accurate. Gitga at Letter to CEAA and NEB 30 Jan

96 Second, on the issue of revenue sharing, we were informed at the meeting that no federal departments would receive revenue from the operation of the pipeline. But we were not told whether any federal departments would receive revenue from the marine transport side of the equation or derive any other revenue associated with the Project. Nor was any information provided regarding potential provincial revenues from the project. We ask that you tell us which, if any, federal and provincial Ministries or agencies will receive revenue from the development and operation of the project. Third, during the meeting we mentioned the common public understanding that there is a moratorium on oil tanker traffic through BC coastal waters. Mr. Pierce responded saying that although CEAA had heard that some people think there is a moratorium, the federal government s position is that there is no moratorium. We ask for clarification. Is it the federal government s position that there never was such a moratorium? Or is it that there was a moratorium but it has been lifted? If the latter, we want to know when it was lifted and by whom. (If there was, say, some federal policy or other measure in place prohibiting oil tanker traffic but which the federal government does not call a moratorium, please tell us what it should be called and when it was changed and by whom.) Gitga at s Initial Response It is our understanding from Haida Nation v. British Columbia that to gauge the depth of its duty to consult the Gitga at, the Crown must make a preliminary assessment of the strength of the case supporting the existence of the right or title [claimed by the First Nation], and the seriousness of the potentially adverse effect upon the right or title claimed ( Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 at paras. 39 & 68). It is also our understanding that the Crown must provide the Gitga at with an opportunity to know the results of the Crown s preliminary assessment, to discuss those results with the Crown if the Gitga at disagree, and if agreement on the assessment cannot be reached, to seek the assistance of a tribunal or court (Haida Nation at para. 37). The point is, in these circumstances the Crown is obliged to make a preliminary assessment and share it with the Gitga at Nation in the beginning phase of the process (Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139 at para. 164), and then provide Gitga at with sufficient time to articulate our claimed rights, our views on the proposed project and any potential effects on our rights. More than three months have passed since the Crown sent general notification in October 2008, we have yet to hear from the federal Crown or CEAA on its plans for engaging with the Gitga at in a way that fulfills the constitutional duty of meaningful consultation in these circumstances. There is no such thing as a one-size-fits-all, general consultation duty to a collection of distinct First Nations with unique rights and disparate interests. It is our understanding that the Supreme Court of Canada rejected such an approach to aboriginal rights and title more than 30 years ago (R. v. Kruger, [1978] 1 S.C.R. 104), and that the scope of the Crown s duty is shaped or governed by the particular context, including the history of the Crown s previous dealings with the First Nation (Haida Nation at paras. 30, Gitga at Letter to CEAA and NEB 30 Jan

97 37-44; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 at paras ). It was disturbing to find that the Crown s view of constitutional obligations is such that it believes it is acceptable to ask the Gitga at to press ahead with consultation related to the Project without confirmation that it is prepared to engage with Gitga at on the above preliminary matters and without any clear idea or description of what the Crown s approach to consultation will be. Such an approach does not take Gitga at rights and recent court decisions seriously. Nor does it deliver on the promise of section 35 of the Constitution Act, 1982 (R. v. Sparrow, [1990] 1 S.C.R at para. 81). We also found it disturbing that CEAA representatives thought that Gitga at aboriginal rights enjoyed broader overlap with Canada s environmental values, and that potential infringements of Gitga at rights could therefore for the most part be addressed through mitigation of environmental impacts. Such simplistic views of the nature and extent of Gitga at rights, and of the Crown s track record in protecting the environment and sustainably managing natural resources in Gitga at Territory, are insulting. The Gitga at s enjoyment of their rights, including governance and title rights, depends on an intact cultural, social and natural environment. To be clear, if the Crown approves the Project and it goes into operation, it will directly or indirectly bring with it a host of infringements of our constitutional rights flowing from: The Gitga at s pre-existing sovereignty over themselves and their territory (Haida Nation at para. 20), The Gitga at s pre-existing social organization, including the traditional clan systems and laws (R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 74; Wii litswx at para. 7), The Gitga at s pre-existing occupation of their territory, including title (Van der Peet at para. 74; Delgamuukw v. British Columbia, [1997] 3 S.C.R at paras. 114 & 126), and The Gitga at s pre-existing enjoyment of their territories natural bounty, including, for example, unmolested marine harvesting in our preferred areas, through our preferred access, in our preferred ways, and in our preferred times (Sparrow). Gitga at s experience with Canada s historical and recent efforts to protect and sustain cultural, social and environmental values on the BC coast provides little comfort that the technical activities of the proposed Joint Review Panel process will prevent the further disrespect of our people, our pre-existing presence in the area, or the further erosion of our constitutional rights. Gitga at Letter to CEAA and NEB 30 Jan

98 Finally we note that in none of the written or oral federal communications to the Gitga at is there mention of the Crown s overarching duty of reconciliation. Consultation and accommodation are aimed at and indeed are part of the process of reconciling Gitga at s pre-existing sovereignty, social organization, occupation and use with the Crown s asserted sovereignty (Haida Nation at para. 32). An approach dedicated at the outset to the promotion of competing Crown and Crown-dependent interests at the cost of the further encroachment on our rights and diminishment of our ability to exercise and enjoy them is the antithesis of reconciliation. To the above we also add that the Crown is honour-bound in its consultation with us and its accommodation of our rights to recognize and acknowledge the distinctive features of Gitga at society, since it is those features that must reconciled with Crown sovereignty (Wii litswx at para. 7). There can be no genuine Crown-Gitga at reconciliation through a process of consultation and accommodation in regard to this Project in the absence of such recognition. Final Thoughts - Next Steps Due to the deficiencies in the Crown s dealings with the Gitga at thus far in regard to the Project, we question the reasonableness of the imposed 60 day timeframe to review the JRPA and ToR. CEAA s position that the clock started earlier for Gitga at and other First Nations in October 2008 does not make the timeframe reasonable. During this time, the Crown has clearly not had its consultation house in order. Moreover, the Crown has not provided funding during this time to allow Gitga at to begin a serious review, including a legal review in light of our constitutional rights, of the JRPA and ToR. However, in the interim we can say without hesitation that the draft JRPA and ToR do not provide a process and procedures that will take Gitga at rights seriously. As we have already noted, Canada s efforts to uphold its environmental values in the Joint Review Panel process, will, despite CEAA s best intentions, not respect or meaningfully address the Gitga at s constitutional rights. Most obviously, it gives no space for Gitga at in the core decision-making process and thus fails to recognize and give effect to our pre-existing decision making rights in regard to our territory. What is apparent is that the time and effort given by the Crown to considering First Nations rights in regard to the Project amount to a relatively small percentage of the time and effort spent on developing the draft JRPA and ToR. It appears to us that Gitga at people and their rights are an afterthought. These and other such considerations more than suggest that the whole decision-making process, including the project review process, needs to be rethought and reconfigured to comply with the Crown s constitutional obligations to Gitga at and other First Nations. To this point, we have no reasonable basis for any confidence in the process, much less the fairness of the process, thus far designed and delivered by the Crown. Nonetheless, we are open to hearing your response before drawing final conclusions. Gitga at Letter to CEAA and NEB 30 Jan

99 In order to allow us time to make even a somewhat informed decision in these circumstances about how, if at all, to approach the review of the draft JRPA and ToR, we require your clarifications and response to this letter by 6 February Sincerely, Dan Cardinall Gitga at Lands & Resources Manager For and on behalf of: Wahmoodmx (Albert Clifton), Hereditary Chief, Gitga at First Nation Jack Clifton, Chief Councilor, Hartley Bay Village Council Cc. David Benton, Hartley Bay Band Manager Chris Picard, Gitga at Marine Resources Manager Brett Maracle, Canadian Environmental Assessment Agency Panel Manager Margaret McQuiston, National Energy Board Socioeconomic Specialist Kent Lien, National Energy Board Environmental Specialist Sean Maher, National Energy Board Socioeconomic Specialist Gitga at Letter to CEAA and NEB 30 Jan

100 Consideration of Aboriginal Concerns in National Energy Board Decisions What is the National Energy Board? The Board is an independent federal agency that regulates several aspects of Canada's energy industry. Its purpose is to promote safety and security, environmental protection and efficient energy infrastructure and markets in the Canadian public interest within the mandate set by Parliament in the regulation of pipelines, energy development and trade. The Board is a quasi-judicial tribunal, which means it conducts itself like a court and operates at arm s length from the federal government. How does the Board make its decisions? Most major applications to the Board are only decided upon after there has been a public hearing. The hearing process must be open, fair and objective and is subject to the common law rules of natural justice. The rules of natural justice mean that the Board must be free from bias and that all parties are aware of all of the evidence that is before the Board so that they have the opportunity to speak to that evidence in the hearing. All communications from parties in a hearing are open and transparent. The Board does not discuss an application with any party outside of the formal hearing process once the application has been filed. After every party has had the opportunity to put their evidence and views before the Board, the Board considers all of the evidence and views before it makes its decision in accordance with the public interest. Does the Board consult with Aboriginal peoples? Because the Board is a quasi-judicial tribunal and operates much like a court, it can only consider evidence that is filed by the applicant and any interested parties in the hearing. The common law rules of natural justice mean that the Board cannot engage in one-onone discussions with any interested parties outside of the hearing process. However, the Board does take steps to ensure that it has sufficient evidence before it makes its decision, including evidence on the impact the proposed project may have on Aboriginal peoples. This is further explained in the answers below. How does the Board take the concerns of Aboriginal peoples into account in its decisions? - 1 -

101 The Board takes Aboriginal concerns into account before it makes any decision that may have an impact on the rights or interests of Aboriginal people. To ensure that it has sufficient evidence about the possible impact of a project on Aboriginal people, the Board requires the proponent of a project, also known as the applicant, to contact potentially affected Aboriginal communities well before an application is filed with the Board. Applicants are expected to include the following information in their applications: Identification of all the First Nations communities that may be affected by the project and how they were identified When and how they were contacted and who was contacted Evidence that the applicant has provided potentially affected Aboriginals with a project overview that clearly explains the nature of the project, its routing, proposed construction periods and possible environmental and socio-economic impacts and information regarding its proposed measures to minimize such impacts Documentation and summaries of any meetings with those potentially affected Aboriginal people. Details of confidential discussions need not be revealed but the evidence should include enough information to enable the Board to understand the general issues discussed. Information as to the concerns raised by Aboriginal people, and whether or not those concerns are still outstanding or have been addressed by the applicant. An analysis of the potential impacts of the project on the exercise of traditional practices such as hunting, fishing, trapping and gathering. After reviewing the evidence the Board may make a number of information requests of applicants or require them to file further evidence to complete the evidentiary record on Aboriginal issues. How Can Aboriginal people ensure that their views are made known to the Board? Aboriginal communities will likely first hear about a proposed project directly from the company that is planning the project, long before an application is filed with the Board. The Board encourages Aboriginal people to communicate with the company in the early stages to ensure that the company takes their views into account when planning the project. As outlined above, the Board requires applicants to provide evidence on issues raised in Aboriginal communities. Once an application is filed, Aboriginal people who have a concern with any particular application are encouraged to participate directly in the proceedings. There are numerous ways to participate. The options for participation vary in their formality and include: becoming a formal participant, called an intervenor 1 ; providing a letter of comment; or, making an oral statement in front of the Board. The Board takes all of the submissions into consideration before making its decision. The Board reviews the needs of the 1 An intervenor may file evidence, question other intervenors and the applicant on their evidence and provide final argument

102 participants in a proceeding when establishing participation options. In the past the Board has hosted information sessions in various communities on how the hearing will unfold, heard traditional knowledge as part of the evidence, offered flexible hours for hearings in communities, and held technical conferences on specific topics. Does the Board provide participants with funding? The Board does not have the authority to provide participant funding. However, the flexibility that can be built into the hearing process enables unrepresented parties to fully participate without the need for legal representation. How can I learn more about the Board s processes? In order to enhance the ability of Aboriginal people to participate in its processes, the Board has established an Aboriginal Engagement Program (AE Program), which provides Aboriginal groups with information about the Board and its procedures and obtains the views of Aboriginal people about how they would like to participate in Board proceedings. The AE program is carried out through personal contact in local Aboriginal communities. It is not tailored to specific applications but should provide Aboriginal communities, groups and individuals with enough information to effectively provide their views on any project that may come before the Board In addition, Board staff can meet with interested parties to explain the Board s hearing procedures before an application is filed. How do I contact the Board? The Board welcomes any views Aboriginal people may have as to how to best ensure that they have full opportunity to participate in Board proceedings. Please contact one of the Board's Aboriginal Engagement Specialists, Barry Brisson or Carla Osborne, at if you would like to provide input to the Board or write to the Secretary of the Board at 444 Seventh Avenue S.W., Calgary, Alberta, T2P 0X8. July