Conseil des Innus de Ekuanitshit v. Canada, 2013 FC 418, Federal Court (Scott J.), 23 April 2013

The Federal Court dismissed an application for judicial review brought by the Innus de Ekuanitshit in relation to an Order in Council made pursuant to s. 37(1.1) of the Canadian Environmental Assessment Act approving the federal government’s response to a joint review panel report concerning the Lower Churchill Hydroelectric Generation Project. The Court held that the application for judicial review was premature since it was filed after stage four of the five-stage CEAA process. In any event, the consultation process undertaken to date was reasonable. The Court also held that the applicant’s challenge to the scoping issue was statute-barred.

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

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

The Court held that correspondence relating to stage 5 of the CEAA process was not admissible, since that phase is still ongoing and the record should be confined to what was before the decision maker.

The Applicant challenged, in an indirect manner, the scoping decision of the Minister of Environment to conduct separate EAs for the Project and the transmission link. The Applicant argued that this amounted to “project splitting”. A scoping decision is subject to the 30-day limitation period under s. 18.1 of the Federal Court Act. The Court may exercise its discretion to grant an extension of time.  The scoping decision in this matter was made over two years before the judicial review application was filed. Scott J. noted that the Applicant neglected to challenge the scoping decisions, and the EA process moved forward. To change the scope at this time would require at least one new EA process at significant cost. In consequence, no extension will be given.

The Court dismissed the arguments of the Applicant that the Crown respondents failed to properly consider the factors listed in section 16 of the CEAA prior to issuing their decision under s. 37. The respondents argued that they had sufficient information to fulfill their mandate under section 16. The Court found that there was no reason to intervene, as there was no evidence that the statutory basis called for by the CEAA had been breached. The Joint Review Panel possessed sufficient information to properly assess the likelihood of significant adverse effects of the Project on the Applicant’s current use of the land for traditional purposes. There was sufficient information for the panel to conclude that usage in the Project area is “seasonal, sporadic and of a short duration”.

There was no reviewable error in relation to the economic feasibility of the Project. The Joint Review Panel concluded that Nalcor’s economic analysis was inadequate. The federal government disagreed with this conclusion based on other economic analyses. There was a reasonable factual basis for doing so. It is not the Court’s role to decide which analysis is correct, but rather to determine whether the government decision rests on a reasonable basis. The Court is not an “academy of science”.

The final issue related to whether the Applicant had been properly consulted in relation to the Project. Questions relating to the existence and content of the duty to consult are reviewed on a standard of correctness. Whether the Crown satisfied its duty to consult in a particular situation is reviewed on the standard of reasonableness. The key question in this case is whether the Crown made reasonable efforts to satisfy the duty to inform and consult incumbent upon them.

The Applicant filed various documents relating to its traditional use of the land in the Project area. The Crown never questioned the strength of the Ekuanitshit’s claim. The Court concluded that the Applicant had a strong prima facie claim for land use rights. In regards to the seriousness of the effects of the Project, the Applicant stressed that caribou are at the very heart of its culture. The Court stated (at para. 107):

While the Ekuanitshit no longer depend on the caribou for their survival and have only recently resumed hunting them in the Project area the animal’s cultural significance should not be underestimated. Furthermore, the Court considers that in this case, reconciliation demanded that the federal government consult and take measures within its legislative powers to ensure that this traditional activity be maintained. This duty becomes even more evident as the Court acknowledges the fact that the federal government is partially to blame for the Applicant’s break with tradition (cf. the residential schooling system). Given that the Applicant presents a strong prima facie case for its claim and that the potential for adverse effects on a culturally significant right is high, this Court finds that the Applicant was entitled to more than minimum consultation. The Applicant’s concerns needed to have been seriously addressed and mitigating measures needed to have been included in the Project.

Following Gitxaala v. Canada, 2012 FC 1336, the Court ultimately held that the judicial review application was premature. The process is now at stage five of CEAA. One of the goals of consultation is to preserve Aboriginal interests pending the resolution of claims. The government actions that would truly put the Applicant’s interests at risk are those which require permits from Transport Canada and DFO. Scott J. held: “It is premature to evaluate the federal government’s consultation process before those decisions are made”.

Despite the finding that this judicial review application was premature, the Court reviewed and assessed the adequacy of the consultation that has taken place to date. It is a well-accepted practice that Crown consultation can take place through the EA process, and the Court was satisfied that the consultations conducted by the Joint Review Panel constituted “consultation”.

The Applicant’s participation in the EA for the Project began at the planning stage. It was invited to comment on the draft Environmental Impact Statement Guidelines. The Applicant received funding, and was able to present written submissions concerning Nalcor’s Environmental Impact Statement. It also made oral submissions at the Joint Review Panel’s community hearing session. In response to the Applicant’s concerns about the effects of the Project, Nalco introduced a number of mitigating factors. Scott J. held that “it is clear that the Applicant’s concerns were taken seriously and that several mitigating measures were introduced into the Project in response”.

The Applicant argued that the Crown failed to inform itself on the Ekuanitshit’s use of the land, and the negative impacts of the Project. The Court found that Nalcor was committed to providing the Applicant with a meaningful opportunity to update existing information regarding their current use of the land. A fair amount of information already existed. The Court held that it was incumbent upon the Applicant to present a counter offer that demonstrated that it was truly engaged in the process. The Applicant denounced various offers made by Nalcor, and insisted upon an in-depth study similar to studies in other projects. The Court found that such a position “frustrated the consultation process by imposing unreasonable conditions”.

After the release of the Joint Review Panel’s report, the Applicant delivered a 22-page submission requesting that the Crown refrain from authorizing the Project before further studies are completed. The Crown did not reply to this request. The Court agreed with the Applicant that the Crown should have responded to the letter. However, that “misstep” does not mean that the consultation process as a whole should be found to be inadequate. The consultation process must be reasonable, not perfect.

The Applicant further argued that there had been insufficient accommodation. It pointed to an Impact and Benefits Agreement that Nalco had signed with an Innu community in 2008. The Court held that the mitigating measures proposed by Nalcor and the Joint Review Panel minimized the impact on the Applicant’s rights, and substantially satisfied the Crown’s duty to consult and accommodate.

The application for judicial review was therefore dismissed. However, due to the importance of the issues raised in the proceeding, the Court ordered the Crown respondents to pay 25% of the Applicant’s costs.
http://www.canlii.ca/en/ca/fct/doc/2013/2013fc418/2013fc418.html

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-604-4029
skerwin@blg.com

Author

Scott Kerwin
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law