CHIEF RENE CHABOYER, CHIEF OF CUMBERLAND HOUSE CREE NATION, ON HIS OWN BEHALF v. ON BEHALF OF, 2023 SKKB 62

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 62 Date: 2023 03 23 Docket: QBG-RG-01621-2019 Judicial Centre : Regina BETWEEN: CHIEF RENE CHABOYER, CHIEF OF CUMBERLAND HOUSE CREE NATION, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER MEMBERS OF CUMBERLAND HOUSE CREE NATION, AND CUMBERLAND HOUSE CREE NATION APPLICANTS - and - OPASKWAYAK CREE NATION APPLICANT/ RESPONDENT - and - SASKATCHEWAN POWER CORPORATION, WATER SECURITY AGENCY, AND HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN RESPONDENTS Counsel: Tim Dickson and Claire Truesdale for Chief Rene Chaboyer, Members of Cumberland House Cree Nation and Cumberland House Cree Nation Kevin Hille for Opaskwayak Cree Nation James S.

Ehmann, K.C. and Diana K. Lee, K.C. for Saskatchewan Power Corporation Sonia L. Eggerman and Allison Graham for the Water Security Agency Lauren Jane Wihak for the Water Security Agency R. James Fyfe and Jeffrey G. Crawford for His Majesty the King in Right of Saskatchewan

JUDGMENT KROGAN J. MARCH 23, 2023 Contents Para. Nos. I. INTRODUCTION...................................................................................................... 1-11 II. PRELIMINARY ISSUES............................................................................................. 12 A. THE STANDING OF THE WSA IN THE CHCN AND OCN MATTERS....................................................................................... 12-19 B. OVERLAP BETWEEN THE CHCN AND OCN APPLICATIONS..................................................................................................... 20 III.

CHCN................................................................................................................... 21-22 A. DUTY TO CONSULT............................................................................................. 23 1. GENERAL..................................................................................................... 23-28 2. SCOPE OF THE DUTY TO CONSULT......................................................... 29-43

i) Standard of Review............................................................................... 44-47 ii) Discussion........................................................................................... 48-67 3. CARRYING OUT THE CONSULTATION.......................................................... 68

i) Standard of Review............................................................................... 69-72 ii) Relevant Jurisprudence Regarding the Consultation Process................................................................................................ 73-76 iii) Facts Surrounding the Consultation................................................... 77-160 iv) Analysis................................................................................................. 161

a) Sedimentation.............................................................................. 162-177

b) Other Impacts.............................................................................. 178-187

c) Funding....................................................................................... 188-201 4. DUTY TO ACCOMMODATE.................................................................... 202-212 5. THE OVERALL CONSULTATION........................................................... 213-217 B. REGULATORY SCHEME..................................................................................... 218 1. PARALLEL CHALLENGE ON ADMINISTRATION AND CONSTITUTIONAL GROUNDS........................................................................................... 218-222 2.

THE REGULATIONS.................................................................................. 223-230 3. CHCN’S POSITION................................................................................... 231-233 4. STANDARD OF REVIEW......................................................................... 234-241 5. ADDITIONAL FACTUAL CIRCUMSTANCES......................................... 242-243 6. ANALYSIS....................................................................................................... 244

i) Interplay Between Administrative Law and Duty to Consult Challenge..................................................................... 244-245 ii)

Section 5............................................................................................... 246-259 iii)

Section 6............................................................................................. 260-269

iv) Further Breaches of Legislative Requirements............................................. 270 7. CONCLUSION................................................................................................. 271 C. CONCLUSION REGARDING THE CHCN APPLICATION................................... 272 IV. OCN......................................................................................................................... 273 A. DUTY TO CONSULT.................................................................................... 274-277 1. SCOPE OF THE DUTY TO CONSULT...................................................... 278-281

i) Standard of Review....................................................................................... 282 ii) Relevant Jurisprudence................................................................................ 283 iii) Conclusion.................................................................................................. 284 2. CARRYING OUT THE CONSTITUTION......................................................... 285

i) Standard of Review................................................................................ 286-287 ii) Facts Surrounding the Consultation....................................................... 288-322 iii) Discussion........................................................................................... 323-324

a) Expert Reports and Funding.............................................................. 325-344

b) Cumulative Effects........................................................................... 345-346

c) Unilateral Termination of the Consultation........................................ 347-353

d) OCN’s Participation in the Consultation Process............................... 354-356

e) Impact of the Election of a New Chief and Council.................................. 357

f) Accommodations............................................................................... 358-376

g) Reasons............................................................................................ 377-378

h) Conclusion....................................................................................... 379-380 B. THE REGULATORY SCHEME............................................................................. 381 1. LICENCE EXTENSION............................................................................. 382-384 2. PUBLIC INTEREST COMPONENT........................................................... 385-386 3.

SECTION 5: CUMULATIVE IMPACTS.................................................... 387-390 4. REASON FOR DECISION................................................................................ 391 5. CONCLUSION................................................................................................. 392 C. CONCLUSION REGARDING THIS OCN APPLICATION.................................. 393-394 I.

INTRODUCTION [ 1 ] Two applications have been advanced. [ 2 ] The first is advanced by the applicants, Chief Rene Chaboyer, Chief of Cumberland House Cree Nation, on his own behalf and on behalf of all members of Cumberland House Cree Nation; and by Cumberland House Cree Nation, together [CHCN]. [ 3 ] Taken directly from the application, CHCN seeks: 1) A declaration that the Water Security Agency [WSA] has failed to fulfil the duty to consult with CHCN under s. 35 of the Constitution Act, 1982 with respect to the licences issued on October 12, 2018 for the continued operation of the E.B. Campbell and

Nipawin Dams, collectively the dams, respectively; 2) A declaration that the Saskatchewan Power Corporation [SaskPower] failed to fulfil its duty to consult and accommodate CHCN under s. 35 of the Constitution Act, 1982 with respect to its applications for the licences; 3) An order in the nature of certiorari setting aside and/or quashing the licence for continued operation of the E.B.

Campbell Dam [EBC]; 4) An order in the nature of certiorari setting aside and/or quashing the licence for continued operation of the Nipawin Dam [Nipawin]; 5) An order in the nature of mandamus that SaskPower and the WSA must consult with CHCN regarding the effects of the proposed licences for the dams in accordance with the reasons of the court; and 6) Costs of this application. [ 4 ] The next application is advanced by Opaskwayak Cree Nation [OCN].

OCN seeks, as provided in its January 14, 2020 amended application: 1) An order quashing the decision of the WSA granting licence extension File E4-2-2-1 EBC to SaskPower to operate the EBC; 2) An order quashing the decision of the WSA granting final licence File E4-2-1 Nipawin to SaskPower to operate Nipawin, collectively the licensing decision(s); 3) A declaration that SaskPower failed to discharge the duty to consult and accommodate with regard to potential adverse impacts from the licensing decisions on the Aboriginal and treaty rights of OCN; 4) A declaration that SaskPower erred in determining the scope of the duty to consult and accommodate in advance of the licensing decisions; 5) A declaration that the WSA erred in determining the scope of the duty to consult and accommodate when it made the licensing decisions; 6) A declaration that the WSA failed to ensure that the duty to consult and accommodate had been discharged before making the licensing decisions, and erred in law by issuing the licences when the duty to consult and accommodate had not been discharged; 7) A declaration that His Majesty the King in Right of Saskatchewan [Saskatchewan] has failed to uphold the honour of the Crown by ensuring that the duty to consult and accommodate was discharged in advance of the licensing decisions; 8) A declaration or order that the dams have caused and will continue to cause cumulative adverse effects on the environment and on OCN, of a kind that continues to expand and worsen, such that any consideration of the duty to consult and accommodate by the WSA or SaskPower must address cumulative impacts from the inception of such projects to the date of their projected expiry; 9) A declaration or order that the duty to consult and accommodate in this case entails the duty to accommodate, and that such accommodation must be aimed at leaving OCN at least no worse off as a result of the adverse effects of the projects than without the projects.

Any contemplated accommodation measures must include:

i) measures to prevent adverse effects; ii) measures to mitigate non-preventable adverse effects; iii) measures to compensate for residual adverse effects; and iv) measures to share in upside project benefits. 10) An order of prohibition restraining the WSA from making licence determinations or legal determinations about the duty to consult and accommodate; 11) A declaration that the WSA is not the appropriate agency to licence dams or carry out the duty to consult and accommodate regarding dam licences as long as it owns and operates dams on the Saskatchewan River; and 12) Costs. [ 5 ] In the alternative, OCN seeks: [ 6 ] An order mandating that the WSA suspend the licences for the dams until the duty to consult and accommodate has been discharged. [ 7 ] In the further alternative, OCN requests: 1) An order amending the duration of the licences for the dams to three years. [ 8 ] With the consent of all parties, the CHCN and the OCN judicial reviews were consolidated, to be heard on the same date, in succession.

[ 9 ] There was, however, no agreement as to what constituted the record for consideration in the judicial review application. Applications by SaskPower and the WSA to strike affidavits filed by CHCN and OCN were pursued. The determination of those applications is found in Chaboyer v Saskatchewan , 2021 SKQB 200 . [ 10 ] In that decision, some relevant facts are provided and, for convenience, repeated here: [1] The E.B. Campbell Hydroelectric Facility [EBC] is located on the Saskatchewan River approximately 100 kilometers downstream of Prince Albert, Saskatchewan.

It was commissioned in 1963 and is owned and operated by Saskatchewan Power Corporation [SaskPower]. EBC operated on a 50 year licence that expired in 2015. In 2014, SaskPower applied to the Water Security Agency [WSA] to re-licence EBC. [2] The Nipawin Hydroelectric Facility [Nipawin] is located in the Saskatchewan River upstream of the EBC dam, near Nipawin, Saskatchewan. Nipawin was commissioned in 1985.

SaskPower operated this dam under interim licensing and applied to the WSA for a final operating licence in 2014. [3] WSA determined these licensing decisions triggered a duty to consult with First Nation and Metis communities. Two such Nations were the Cumberland House Cree Nation [CHCN], which is located in proximity to EBC, and the Opaskwayak Cree Nation [OCN], located in proximity to Nipawin.

Letters dated June 2, 2015 were sent to Chief Lorne Stewart of CHCN and Chief Michael Constant of OCN providing official notification, inviting the Nations to consult and identify potential adverse impacts on the exercise of Treaty or Aboriginal rights and traditional uses. The letters further indicated WSA’s initial assessment was that the impacts of the licensing decision were minor in nature but would occur over a long period of time.

WSA categorized this consultation process as low level. [4] WSA assigned the procedural aspects of the duty to consult process to SaskPower, which included the responsibility to arrange meetings with Nation and community leadership, to identify and discuss potential adverse impacts of the licensing on Treaty and Aboriginal rights and to assist WSA to identify accommodations that would avoid or minimize potential adverse effects. [5] Consultation occurred for an approximate three year period, at the end of which, on October 12, 2018, WSA issued to SaskPower a final operating licence to continue to operate Nipawin and a renewed licence to continue to operate EBC. [ 11 ] SaskPower applied for the EBC licence on August 28, 2014.

That licence was to terminate on December 31, 2015. The licence was extended until ultimately issued on October 12, 2018. The Nipawin licence was not set to expire until November 24, 2019 so no extension was required prior to the October 12, 2018 decision. II. PRELIMINARY ISSUES A. THE STANDING OF THE WSA IN THE CHCN AND OCN MATTERS [ 12 ] CHCN argues that the WSA does not have standing to participate in these proceedings given that the WSA duplicates SaskPower’s position and makes the WSA involvement unnecessary.

CHCN says that the principles of finality and impartiality require, in the circumstances of this case, that the WSA’s participation be denied. [ 13 ] Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44 , [2015] 3 SCR 147 [ Ontario Power ] provides guidance, identifying that a discretionary determination lies with a reviewing court to identify a tribunal’s role on appeal.

The Supreme Court stated: [59] In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewing court must rely on its discretion to define the tribunal’s role on appeal. While not exhaustive, I would find the following factors, identified by the courts and academic commentators cited above, are relevant in informing the court’s exercise of this discretion:

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised.

Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [ 14 ] In Chapman v Saskatchewan Workers’ Compensation Board , 2017 SKQB 134 at para 31 , this Court observed that Ontario Power “appears to have rejected the bright-line, categorical restriction on tribunal participation previously articulated” in the jurisprudence. [ 15 ] The Water Security Agency Act , SS 2005, c W-8.1 [ WSA Act ] is silent as to the extent to which the WSA may participate in judicial review proceedings.

As such, the Ontario Power factors must be considered. [ 16 ] While the CHCN application for review will not go unopposed should the WSA not participate, the WSA is the regulator with knowledge and expertise in both the regulatory scheme and in water. The WSA is best placed to speak of its statutory powers, technical water management issues and its familiarity with the record. The WSA serves a regulatory role, not an adjudicative one, and thus there are decreased concerns regarding impartiality.

Given this, the court’s discretion is exercised to permit the WSA to participate in the proceedings on the terms they have requested:

a) To explain the consultation and licensing decisions;

b) To address the applicable standards of review and the parameters of those standards;

c) To respond to arguments relating to the duty to consult, the statutory framework and context in which the WSA operates; and

d) To respond to the parallel duty to consult and administrative law challenges. [ 17 ] Notably, the WSA does not seek standing to argue the merits of the reasonableness of the licensing decisions though does, regarding OCN’s application for review, seek to address the consultation decision on the merits. [ 18 ] This is an acceptable approach and, in keeping with Ontario Power, is permissible. [ 19 ] The WSA has standing to participate in the judicial reviews as indicated above. B. OVERLAP BETWEEN THE CHCN AND OCN APPLICATIONS [ 20 ] CHCN challenges the licences for both EBC and Nipawin. OCN does the same.

The relevant jurisprudence, facts and analysis contained in the CHCN analysis apply in the OCN application. Similarly, relevant jurisprudence, facts and analysis provided in the OCN analysis, are applicable in the CHCN application. III. CHCN [ 21 ] CHCN is a signatory to Treaty 5 and has a population of approximately 1,682 people. The main reserve of the CHCN people is located along the banks of the Saskatchewan River near Cumberland House, about 100 kilometers downstream from the EBC.

CHCN relies on the nearby Saskatchewan River Delta [SRD] and Cumberland Lake for their subsistence and preferred exercise of their treaty and Aboriginal rights. [ 22 ] The SRD is the largest inland freshwater delta in North America, covering approximately 10,000 square kilometers. The North and South Saskatchewan Rivers, among others, flow through Alberta and central Saskatchewan and drain into the SRD. Wetlands, active and abandoned river channels, streams and tributaries form part of the SRD. The SRD is part of the mid-boreal lowland ecoregion that is relatively flat, low lying and contains wetlands.

The SRD is also comprised of trembling aspen, balsam poplar, white spruce, black spruce and balsam fir. The SRD supports migratory birds, song birds and birds of prey as well as fish bearing streams and water bodies. It is also habitat for moose, elk, deer, caribou, black bear, small mammals and furbearers. A. DUTY TO CONSULT 1.

GENERAL [ 23 ] The duty to consult arises when the Crown has knowledge of the existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title ( Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 , [2004] 3 SCR 511 [ Haida ]). [ 24 ] The duty to consult is grounded in the honour of the Crown. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing (See Haida at para 32 ; Gitxaala Nation v Canada , 2016 FCA 187 at para 171 , [2016] 4 FCR 418 [ Gitxaala ]).

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” ( Haida at para 45 ). [ 25 ] The honour of the Crown is not maintained by giving Aboriginal people the “opportunity to blow off steam” during the consultation process, before the Crown does what it intended to do at the outset ( Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 , [2005] 3 SCR 388 [ Mikisew ]). [ 26 ] Meaningful consultation “may oblige the Crown to make changes to its proposed action based on information obtained through consultations” ( Haida at para 46 ). [ 27 ] Accommodation is to occur when the consultation process suggests amendments to Crown policy.

That is, the effect of good faith consultation may identify a duty to accommodate ( Haida at para 47 ). [ 28 ] The process does not give Aboriginal groups a veto ( Haida at para 48 ). Further, the Crown is to balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests ( Haida at para 50 ). 2.

SCOPE OF THE DUTY TO CONSULT [ 29 ] CHCN submits that the WSA failed to discharge their constitutional duties to consult CHCN by incorrectly determining the depth and scope of the consultation. [ 30 ] CHCN submits that as a result, the licences cannot stand.

They must be quashed and the matter remitted back to the WSA for consideration in a manner consistent with the honour of the Crown. [ 31 ] The WSA, acting on behalf of Saskatchewan, determined that SaskPower’s licensing applications triggered the duty to consult and accommodate with impacted First Nations and Métis communities in accordance with s. 35 of the Constitution Act, 1982 . On June 2, 2015, the WSA advised Chief Lorne Stewart by letter that the duty to consult had been triggered:

This letter provides official notification that the duty to consult has been triggered and invites you to consult with government and identify potential adverse impacts on the exercise of Treaty or Aboriginal rights and traditional uses. … While the potential for adverse impacts to lands and resources that can be directly attributed to the Licencing of hydroelectric facilities may be difficult to accurately measure; WSA’s initial assessment is that such impacts are likely to be minor in nature, but occurring over a long period of time.

However, WSA is seeking information from your community on how the proposed Licencing may adversely impact your community’s ability to exercise its Treaty or Aboriginal rights to hunt, fish and trap for food, or to carry out traditional uses now or in the future. … Please be advised that, through this process, the WSA can only consider adverse impacts to Treaty or Aboriginal rights and traditional uses as a result of new impacts to lands and resources from the Licencing date onward, and as a result of the future operation of these hydroelectric facilities as they exist now.

There is no duty to consult related to past impacts that may have occurred as a result of the construction of these hydroelectric facilities or their operation prior to the proposed Licencing… (Condensed Book of Chief Chaboyer [Condensed Book], pages 166-167) [ 32 ] The scope of the duty was reiterated more than once subsequent to this letter. Such an instance occurred in the March 24, 2017 correspondence from Susan Ross, President of the WSA to Chief Stewart. In that correspondence, Ms. Ross reiterated that the duty to consult was triggered at a low level.

She advised that the WSA would only consider adverse impacts to treaty or Aboriginal rights and traditional uses as a result of new or novel impacts to lands and resources as a result of the licensing of the dams as they currently existed. Aligned with Jeff Hovdebo’s message in the June 2, 2015 correspondence, she further advised the WSA took the position that there was no duty to consult related to past impacts that may have occurred as a result of the construction of the dams and/or their operation prior to the proposed licensing. [ 33 ] In the December 20, 2017 letter to Chief Chaboyer from Dan Johnston, Mr.

Johnston explained the reason for the triggering of the duty to consult as “the new or novel impact [which] is the temporal extension of the impacts of the dam over an extended period of time” (Condensed Book, page 190). [ 34 ] Mr. Hovdebo, executive Director of Water Programs & Services with the WSA, described the process in his August 28, 2020 affidavit. He explained that when an application for a licence is submitted, the WSA conducts a pre-consultation initial assessment in which an evaluation is conducted as to whether a duty to consult is triggered followed by an identification of the level of consultation.

That assessment may be revised at any time upon learning new information. Once the assessment is complete, if the duty to consult is triggered, the WSA conducts its consultations in accordance with the First Nation and Métis Consultation Policy Framework, June 2010 [Consultation Framework]. The Consultation Framework is Saskatchewan’s policy regarding consultation with First Nations and Métis communities. Pursuant to the Consultation Framework, the WSA can delegate procedural aspects of a consultation to a proponent.

As previously noted, in this case, the proponent was SaskPower. [ 35 ] Saskatchewan’s duty is set out at page 4 of the Consultation Framework: Government’s Duty On matters subject to provincial jurisdiction, the duty to consult lies with the Government of Saskatchewan. The Government will not delegate the duty to project proponents or other third parties, although proponents have an important role in the procedural aspects of consultation processes.

Government retains final decision-making authority; First Nations and Métis do not have a veto over decisions. (Affidavit of Jeff Hovdebo sworn August 28, 2020, Exhibit A) [ 36 ] There is a reciprocal responsibility on First Nations and Métis communities, described at page 4 of the Consultation Framework: Reciprocal Responsibility There is a reciprocal responsibility on First Nation and Métis communities to participate in the consultation process in good faith, to make their concerns respecting potential impacts on Treaty and Aboriginal rights known and to respond to the Government’s attempts to consult. (Affidavit of Jeff Hovdebo sworn August 28, 2020, Exhibit A) [ 37 ] That which is subject to the duty to consult is listed, as is that which is not.

At page 6 of the Consultation Framework, it provides: Past Actions The Government does not consider the duty to consult to be retroactive and therefore will not consult on decisions it made in the past. (Affidavit of Jeff Hovdebo sworn August 28, 2020, Exhibit A) [ 38 ] At page 11 of the Consultation Framework, a statement is made regarding the renewal or extension of an existing project:

When the decision under consideration is the renewal, extension or transfer of an existing disposition, only potential new adverse impacts on Treaty and Aboriginal rights and traditional uses will be considered in determining if consultations are required and what level of consultation is required.

Where the renewal or extension is provided for in the original disposition and no changes to the authorized activity are contemplated, consultations will be assessed at a Level 1. (Affidavit of Jeff Hovdebo sworn August 28, 2020, Exhibit A) [ 39 ] Based on the above, a precise identification of the decision under scrutiny is useful. SaskPower applied to licence EBC. This was a request for the renewal of an existing licence. This was not an initial construction or an initial licence.

In short, the WSA had to decide whether or not to issue the licence to SaskPower, and if so, on what terms. [ 40 ] The consultation itself was assessed by the WSA as low level consultation. This was because, in the initial assessment, which the WSA stated they were open to revising should different information arise, the WSA concluded that the impacts were minor though occurring over a long period of time. The consultation was to focus on new or novel impacts from the licensing date onwards and as a result of the future operations of the dams as they existed at the time the decision was made.

The WSA’s view was that there was no duty to consult on past impacts resulting from the construction of EBC or the operation of EBC prior to the decision date. [ 41 ] The scope of the duty to consult has been the subject of significant judicial comment.

Haida provides: [39] …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. … [43] …At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential 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… [44] 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 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. [45 ] 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. [ 42 ] On this spectrum, the WSA concluded that the consultation would be undertaken at a low level having determined the impacts which would occur as a result of granting a licence to operate EBC, where a licence had existed for many years to operate in a manner that it had historically been operating, would be minor.

In the WSA’s view, based on current information, nothing would change as a result of granting a new licence other than the same minor impacts would continue to occur. [ 43 ] The WSA advised CHCN that the WSA would only consider potential adverse impacts to treaty and Aboriginal rights and traditional uses that were new and novel from the licensing date forward and potential adverse impacts resulting from the future operation of the dams and were open to learning of this from CHCN.

Because no changes to the operation of the dams were proposed, subject to any accommodation measures that may be incorporated, the new or novel impacts as described by the WSA were described as the “temporal extension of the impacts of the dam over an extended period of time” (Record of Proceedings [Record], page 1172). Further, the WSA advised they would not consult on past impacts caused from the construction of the dams or the operation of the dams prior to licensing.

i) Standard of Review [ 44 ] Haida states: [61] …The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate.

The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society of New Brunswick v Ryan, [2002] 1 S.C.R. 247 , 2003 SCC 20 ; Paul, supra [2003 SCC 55 , [2003] 2 SCR 585 ]. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness.

To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness… [ 45 ] In West Moberly First Nations v British Columbia (Chief Inspector of Mines) , 2011 BCCA 247 at para 174 ,

[2011] 9 WWR 34 [ West Moberly ], the standard of review regarding the extent of the duty to consult is identified: [174] I accept, as did the chambers judge, the submission of the West Moberly that the appropriate standard of review in consultation cases for the Crown’s assessment of the extent of its duty to consult is correctness… [ 46 ] Agreement is found in Buffalo River Dene Nation v Saskatchewan (Energy and Resources), 2015 SKCA 31 , 471 Sask R 71: [31] On this basis, I conclude that, given that the parties have proceeded to have this case determined on the basis of largely uncontested facts, the standard applicable to our appellate review of the Chambers judge’s conclusion that the Crown’s duty to consult had not been triggered in this case is correctness. [ 47 ] In this instance, the identification of the scope of the duty to consult is to be reviewed on a correctness standard. ii) Discussion [ 48 ] The WSA’s assessment that the duty to consult would be conducted at a low level was predicated in part on the Consultation Framework.

The WSA assessed consultation to be at Level 3 because it concluded that impacts would be minor but long term. It is anticipated that a Level 3 decision is to be made within 60 days. [ 49 ] The WSA was also guided by relevant jurisprudence in its assessment. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 , [2010] 2 SCR 650 [ Rio Tinto ] provided such direction. Rio Tinto held that past wrongs and continuing breaches of Aboriginal rights do not give rise to a duty to consult. Whether potential adverse impacts are continuing breaches, one must look carefully at the decision itself.

Should past wrongs or continuing breaches give rise to new or novel impacts, a duty to consult would be triggered. The Supreme Court stated: [45] The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims of rights.

Past wrongs, including previous breaches of the duty to consult, do not suffice. … [48] An underlying or continuing breach, while remediable in other ways, is not an adverse impact for the purposes of determining whether a particular government decision gives rise to a duty to consult… The duty arises when the Crown has knowledge , real or constructive, of the potential or actual existence of the Aboriginal right or title “and contemplates conduct that might adversely affect it ”: Haida Nation , at para. 35 (emphasis added).

This test was confirmed by the Court in Mikisew Cree in the context of treaty rights, at paras. 33-34. [49] The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right. This is not to say that there is no remedy for past and continuing breaches, including previous failures to consult.

As noted in Haida Nation , a breach of the duty to consult may be remedied in various ways, including the awarding of damages. To trigger a fresh duty of consultation — the matter which is here at issue — a contemplated Crown action must put current claims and rights in jeopardy. (Emphasis in original) [ 50 ] In Rio Tinto , the scrutinized decision was to sell excess power generated from the Kenney Dam, which was built in the 1950s, and given a final licence to operate years before.

The energy purchase agreement did not impact whether the dam would continue its operations in the manner it had been doing and thus would not have any further impact on Aboriginal rights. No duty to consult was triggered. [ 51 ] In Peter Ballantyne Cree Nation v Canada (Attorney General) , 2016 SKCA 124 , [2017] 1 WWR 685 [ Peter Ballantyne ], Peter Ballantyne Cree Nation commenced an action for the flooding of Southend Reserve caused by the construction of dams on the Reindeer River. Part of its claim alleged that the Crown failed in its duty to consult.

Each of the dams altered or continued to alter the natural flows of waters in the Reindeer River where it passed the Southend Reserve. [ 52 ] The court found that there were continuing impacts but none that were new or novel arising from the operations that would attract a duty to consult: [72] In short, I would agree with the Chambers judge. Since its establishment, the dam has caused flooding to the same area of the Southend Reserve. Albeit, the exact amount of the land flooded varies with the operational requirements of the dam.

As stated in the agreed statement of facts, SaskPower is required to change the number of stop logs in order to adhere to the requirements of its licence. Simply put, there is nothing in the facts that suggest SaskPower is considering altering the way in which it operates the dam, including any decisions that would result in a greater flooding of the Southend Reserve.

Without any novel operation of the dam, I do not see how there can be a novel impact on the Cree Nation’s treaty rights. [73] Further, the Cree Nation must demonstrate a “causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights” ( see Rio Tinto at para 45 ; Buffalo River ). The essence of the Cree Nation’s evidence is that the interference with their rights resulting from the operation of the dam is “ongoing”: Cree Nation Factum at para 174.

However, “[p]ast wrongs, including previous breaches of the duty to consult, do not suffice”: Rio Tinto at para 45 . [74] Based on the foregoing, I am of the view that the Chambers judge did not err in concluding that there was no novel or new adverse impact on treaty rights that would give rise to the duty to consult.

[ 53 ] Where there is a duty to consult because of potential new or novel impacts arising from continuing breaches, cumulative impacts may be considered to determine the scope of the duty to consult, but not used as the subject of consultation. West Moberly presents a clear articulation of this point. In West Moberly , officials in the Ministry of Energy, Mines and Petroleum Resources made decisions to amend existing permits to allow First Coal to obtain a 50,000 tonne bulk sample of coal and to engage in an advanced exploration program.

The chambers judge relied on two reports in which a view was expressed that the anticipated activities would destroy a large range that the burnt pine caribou herd used and needed. The herd had been reduced from abundant numbers to one consisting of eleven animals. [ 54 ] The West Moberly court stated: [117] I do not understand Rio Tinto to be authority for saying that when the “current decision under consideration” will have an adverse impact on a First Nations right, as in this case, that what has gone before is irrelevant.

Here, the exploration and sampling projects will have an adverse impact on the petitioners’ treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt. … [119] To take those matters into consideration as within the scope of the duty to consult, is not to attempt the redress of past wrongs.

Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs. (Emphasis in original) [ 55 ] This was stated in Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 , [2017] 1 SCR 1099 [ Chippewas ] where the Supreme Court reiterated that consultation was not to encompass historical impacts, though historical impacts may be used to inform the scope of the duty to consult in order to recognize the consequences that may result from the decision taken: [41] The duty to consult is not triggered by historical impacts.

It is not the vehicle to address historical grievances. In Carrier Sekani [2010 SCC 43 , [2010] 2 SCR 650 ], this Court explained that the Crown is required to consult on “adverse impacts flowing from the specific Crown proposal at issue — not [on] larger adverse impacts of the project of which it is a part.

The subject of the consultation is the impact on the claimed rights of the current decision under consideration” ( Carrier Sekani , at para. 53 (emphasis in original))… [42] That said, it may be impossible to understand the seriousness of the impact of a project on s. 35 rights without considering the larger context (J. Woodward, Native Law (loose-leaf), vol. 1, at pp. 5-107 to 5-108). Cumulative effects of an ongoing project, and historical context, may therefore inform the scope of the duty to consult ( West Moberly First Nations v.

British Columbia (Chief Inspector of Mines) , 2011 BCCA 247 , 18 B.C.L.R. (5th) 234 , at para. 117 ). This is not “to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from” the project ( West Moberly , at para. 119 ). [ 56 ] Thus there is no duty to consult about past wrongs and continuing breaches unless they result in new or novel impacts. There will be instances where it may be impossible to understand the seriousness of the project or a decision’s impact without assessing it in the larger context.

This is not to redress past wrongs but to comprehensively recognize the existing situation. [ 57 ] It bears noting that in West Moberly , there was new activity which was permitted to occur: additional sampling and advanced exploration. These activities were expected to result in the destruction of a good part of the caribou’s winter range. It thus makes sense this adverse impact would be considered within the knowledge of what lands occupied by the caribou had previously been impacted. [ 58 ] Further in Chippewas , new activity was also permitted.

That was the increase in pipeline capacity and the transporting of heavy crude. This decision was also oriented in historic context to determine the scope of the duty to consult. [ 59 ] In the present situation, there was no new project. There were no new activities. The decision in question was whether to provide a licence to SaskPower to continue to operate EBC in the same manner it had been operated since it was built, subject to accommodation measures.

These factual circumstances are similar to those in Peter Ballantyne where there was no new activity and no new or novel impacts. [ 60 ] However, the WSA took a generous and purposive approach to consultation and determined that the duty to consult had been triggered.

It identified the scope of the consultation aligning with the Consultation Framework and based on the relevant cases which clearly focus on the particular decision made and its impact on Aboriginal and treaty rights. [ 61 ] The WSA concluded that low level consultation was required in the circumstances where its view was the impacts of the particular decision to provide SaskPower with a licence to continue operating in the same manner, subject to accommodation measures, would be minor though occurring over a long period of time.

SaskPower’s view was that the construction of EBC years ago had caused adverse impacts which would not form part of the consultation, though were, in part, covered by accommodations. Consultation was limited to new or novel impacts emanating directly from the extension of the licence. While the WSA could not identify new or novel impacts from a situation that was not changing, the WSA wanted to know from CHCN whether CHCN could provide information regarding new or novel impacts.

The WSA was prepared to modify their low level triggering should new or novel impacts be identified by CHCN. [ 62 ] The conclusion that no new or novel adverse impacts were identified by CHCN to increase the low level consultation, and the conclusion that some impacts, such as sedimentation, were historic impacts that did not attract consultation, were factual determinations made by the WSA, a regulatory body with significant experience in managing water and water works in the province. These are decisions to which deference is owed.

[63] The jurisprudence does not cause consultation on historical impacts, as identified by the WSA. At best,historical impacts may provide a framework in which to assess the scope of consultation which would have been considered by the WSA. [64] Further, The Water Power Regulations, RRS c W-6 Reg 3 [Regulations] do not override jurisprudential directionand expand the scope of consultation beyond what the cases permit. The Regulations cannot be invoked to require the WSA to consult onhistoric or ongoing impacts.

Consultation is necessary for new or novel adverse impacts only. [65] SaskPower asks the court to first determine whether a duty to consult should have been triggered in this case.The WSA does not seek that determination and, in fact, decided that the duty had been triggered and consequently engaged inconsultation. As noted, the WSA triggered consultation on the basis that there were potential new and novel impacts that CHCN mightbe aware of that the WSA was not. This, again, is a factual determination which caused the triggering of the consultation and is oweddeference.

It is a factual conclusion which falls in the realm of reasonable. On this basis, there was a duty to consult, the scope of which,not its existence, requires comment. [66] The WSA determined the scope of the consultation to be low level, again on the basis of the ConsultationFramework and the relevant case law. There were no new operations or new activities being proposed. The decision before it waswhether to permit SaskPower to continue operating EBC. Continued operations meant the same impacts would occur over a long periodof time. That assessment did not change as a result of information presented to the WSA.

Historical impacts, the identification of whichis owed deference, were not required subject matter of the consultation, though, including an understanding of historical impacts, asdiscussed below, did actually become part of the consultation.

In this entire context, including an understanding of historical impacts, adetermination that a low level duty to consult was triggered is a correct determination. [67] As will be discussed further, should the determination that this low level consultation assessment is not correctin reality, consultation went much deeper than the low level consultation the WSA set out to undertake. As noted in Beckman v LittleSalmon/Carmacks First Nation, 2010 SCC 53 at paras 38-39, [2010] 3 SCR 103, it is possible for a decision-maker to mischaracterizethe scope of consultation and still fulfill the duty to consult. 3.

CARRYING OUT THE CONSULTATION [68] CHCN submits that SaskPower and the WSA failed to reasonably carry out meaningful consultation. CHCNsays SaskPower and the WSA failed to understand the impacts on CHCN’s rights, accommodation measures were predetermined andunresponsive to CHCN’s concerns, and there was a failure to provide reasonable funding to permit CHCN to meaningfully engage in theconsultation.

As a result, CHCN says the WSA’s decision that the consultation and accommodation had been sufficient to satisfy s. 35 ofthe Constitution Act, 1982 was unreasonable which in turn rendered the decision to approve the licences unreasonable.

i) Standard of Review [69] The court in Haida stated: [62] The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; thequestion is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right inquestion”: Gladstone, supra [ (SCC), [1996] 2 SCR 723] at para. 170.

What is required is not perfection, butreasonableness… [70] Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2SCR 386 [Ktunaxa] also explained that the decision regarding whether an adequate consultation and accommodation process occurred, isentitled to deference, attracting a reasonableness review: [77] The Minister’s decision that an adequate consultation and accommodation process occurred is entitled to deference: HaidaNation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 62.

The chambers judge was required todetermine whether the Minister reasonably concluded that the Crown’s obligation to consult and accommodate had been met. Areviewing judge does not decide the constitutional issues raised in isolation on a standard of correctness, but asks rather whether thedecision of the Minister, on the whole, was reasonable. [71] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov]provided direction to a court engaged in a reasonableness review.

Reviewing courts are to refrain from deciding issues themselves andinstead consider whether the decision made, which includes both the rationale for the decision and the outcome, was reasonable (Vavilovat para 83). A principled approach to a reasonableness review examines the reasons provided with “respectful attention”, seeking tounderstand the reasoning process followed by the decision-maker to arrive at its conclusion (Vavilov at para 84).

Reasonableness meansjustification, transparency and intelligibility within the decision-making process as well as a decision that falls within a range of possible,acceptable outcomes which are defensible in respect of the facts and law (Vavilov at para 86). [72] The burden is on the party challenging the decision to demonstrate that the decision is unreasonable. As noted inVavilov at para 100: [100] The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on thisbasis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said toexhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more that merelysuperficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decisionsimply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on bythe party challenging the decision are sufficiently central or significant to render the decision unreasonable. ii) Relevant Jurisprudence Regarding the Consultation Process

[ 73 ] A perfect process is not the goal of consultation. As provided in Gitxaala : [182] [Government] is not to be held to a standard of perfection in fulfilling it duty to consult…Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ. . . . [185] Therefore, the question is whether “reasonable efforts to inform and consult” were made.

In applying this standard, we have been careful not to hold Canada to anything approaching a standard of perfection. [ 74 ] Haida speaks of the good faith that is required of all parties participating in a consultation. Good faith, however, does not mean the parties must agree on the outcome. The requirement is only for a meaningful consultation. This is identified in para. 42 as follows: [42] …However, there is no duty to agree; rather the commitment is to a meaningful process of consultation.

As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached… [ 75 ] Ktunaxa provides that s. 35 of the Constitution Act, 1982 provides a right to a process, not a particular outcome.

The question then becomes whether the consultation process is consistent with the honour of the Crown, not whether the Aboriginal group being consulted obtained their desired outcome (para. 83). [ 76 ] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 , [2020] 3 FCR 3 identifies that the duty to consult must be reasonable and meaningful (para. 40). As to what those terms mean, the court noted: [43] The Supreme Court has identified the concepts that animate the duty.

In its view, the “controlling question” as to what is “reasonable” or “meaningful” consultation 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” ( Haida Nation, paragraph 45 ). iii) Facts Surrounding the Consultation [ 77 ] While it would be impossible to fully capture all communications and interactions between the parties, the following identifies some of the those. [ 78 ] On June 2, 2015, Mr.

Hovdebo for the WSA wrote to CHCN to advise that SaskPower had applied to the WSA for the renewal of the final licence for EBC and for the issuance of a final licence for Nipawin. The letter provided notification that the duty to consult had been triggered and invited consultation with CHCN to identify potential adverse impacts on the exercise of treaty or Aboriginal rights and traditional uses. Further, Mr.

Hovdebo noted: While the potential for adverse impacts to lands and resources that can be directly attributed to the Licencing of hydroelectric facilities may be difficult to accurately measure; WSA’s initial assessment is that such impacts are likely to be minor in nature, but occurring over a long period of time. However, WSA is seeking information from your community on how the proposed Licencing may adversely impact your community’s ability to exercise its Treaty or Aboriginal rights to hunt, fish and trap for food, or to carry out traditional uses now or into the future.

WSA would very much appreciate an understanding from your community of generally where and when the activities mentioned above occur in order to work with the community to find ways to avoid or to mitigate potential adverse impacts to those activities. Please be advised that, through this process, the WSA can only consider adverse impacts to Treaty or Aboriginal rights and traditional uses as a result of new impacts to lands and resources from the Licencing date onward, and as a result of the future operation of these hyrdroelectric facilities as they exist now.

There is no duty to consult related to past impacts that may have occurred as a result of the construction of these hydroelectric facilities or their operation prior to the proposed Licencing. Further, there is no duty to consult related to any potential impacts that may occur upstream of the Codette Reservoir due to water management within the Saskatchewan River system and not by the Licencing. WSA anticipates making a decision on the Licencing by December of 2015… (Condensed Book, pages 166-167) [ 79 ] On June 3, 2015, a meeting was held in Cumberland House between CHCN and SaskPower officials.

On July 9, 2015, a further meeting was held in Cumberland House between Chief Stewart and SaskPower officials. On December 4, 2015, a meeting was conducted in Prince Albert, Saskatchewan between CHCN, the WSA and SaskPower representatives. [ 80 ] Correspondence between the parties provided information regarding the nature of the consultation. [ 81 ] On May 2, 2016 correspondence from SaskPower to CHCN, funding to a maximum of $15,000 was offered to CHCN.

SaskPower indicated it wanted to continue to gather information from CHCN, discuss possible adverse impacts and then prepare its final report in September – October 2016. SaskPower provided a report to CHCN regarding a

summary of fisheries/aquatic studies completed in the previous 10 years. [ 82 ] Dated October 7, 2016, SaskPower provided an interim report regarding consultation activities up to September 15, 2016 [Interim Report]. The Interim Report detailed the information provided to rights holders including CHCN such as the Consultation Framework, operating plans for EBC and consultation participation funding applications.

[ 83 ] The Interim Report noted that some potential adverse impacts were identified but additional meetings would occur. The Interim Report made clear that SaskPower and the WSA took the position that only adverse impacts to treaty and Aboriginal rights and traditional uses as a result of new impacts to lands and resources from the licensing date onward would be considered as per the Consultation Framework. [ 84 ] On November 4, 2016, a meeting was held in Prince Albert with CHCN and SaskPower officials present.

Again on December 1, 2016, a meeting was conducted in Saskatoon, Saskatchewan between CHCN and SaskPower. Further, on February 8, 2017, a meeting was held in Regina, Saskatchewan with CHCN and SaskPower officials in attendance. [ 85 ] A Duty to Consult Participation Funding Agreement was signed on January 10, 2017.

The first release of funds to assist with consultation occurred on January 26, 2017. [ 86 ] On February 17, 2017, the WSA received a voice message from Tracy Campbell, consultant with Calliou Group, advising that she was assisting CHCN and wished to have some information from the WSA. [ 87 ] By letter to Ms. Ross, President of the WSA, dated March 3, 2017, Chief Stewart advised that he had concerns with the progress of the consultation as well as the consultation process. [ 88 ] Chief Stewart sent a further letter dated March 24, 2017 to Mr. Hovdebo.

Chief Stewart suggested meeting dates between CHCN and the WSA officials. CHCN also provided a list of information requests which included any environmental assessments or studies completed for EBC to support previous licensing processes, a copy of the “Pre-Consultation Assessment” by the WSA upon which it determined the scope of consultation and predicted impacts of EBC on CHCN’s s. 35 rights. [ 89 ] Ms. Ross replied to the March 3, 2017 correspondence by letter of March 24, 2017. Ms.

Ross stated at page 3: Both the WSA and SaskPower have identified appropriate points of contact to you in previous correspondence dated June 2, December 10, 2015, and November 25, 2016, during meetings on June 3, July 9, and December 4, 2015, and through various telephone and e-mail conversations with representatives of CHCN and consultants operating on your behalf; however, this letter is the first documentation we have received suggesting “CHCN has significant issues” with the process and its progress since notification in June of 2015.

I hope that many of your concerns will be addressed by the information provided in response to your letter and in the discussions that will follow.

To ensure a timely and meaningful process I would ask that in moving forward you please identify any further concerns that arise as soon as possible and with the appropriate representatives of both WSA and Saskpower. (Condensed Book, page 182) [ 90 ] Further on the same page: As outlined in the notification letter and as discussed during a meeting of the CHCN, WSA and SaskPower on December 4, 2015, the WSA can only consider adverse impacts to Treaty or Aboriginal rights and traditional uses as a result of new or novel impacts to lands and resources as a result of the Licensing of these hydroelectric facilities as they exist now.

There is no duty to consult related to past impacts that may have occurred as a result of the construction of these hydroelectric facilities and/or their operation prior to the proposed Licencing. As such, the scope of the WSA’s duty to consult with CHCN is the identification of, and where necessary the accommodation of, potential adverse impacts to Treaty or Aboriginal rights and traditional uses as they are currently exercised under the existing conditions of the two projects.

The WSA has not presumed to know how the CHCN currently exercises such rights and as a result has not undertaken an assessment of impacts to those rights. It is the WSA’s intention that such impacts be identified by CHCN through this consultation process, aided and assisted by the technical resources available from SaskPower. (Condensed Book, page 182) [ 91 ] On the following page: …WSA has triggered the duty to consult as the Licensing has the potential to adversely impact rights and traditional uses. The duty was triggered at a low level.

The Crown has provided CHCN with all of the information in its possession about potential adverse impacts to the lands and resources used to exercise rights. The purpose of this consultation is to seek information from CHCN about how they view their rights being adversely impacted as a result of the Licensing. … (Condensed Book, page 183) [ 92 ] On page 5 of the letter, Ms. Ross points out: There must also be a distinction between the impacts resulting from the Licencing of the current operations as they exist today and the broader changes in the watershed that affect the operation of the projects.

These other changes to the watershed include the upstream development of the Brazeau Dam (1965), Gardiner Dam (1967), Bighorn Dam (1972), Oldman River Dam (1990), and continued upstream water management decisions. Due to their proximity to the projects, local communities often attribute the results of these broader watershed changes that they observe to the operations of EBC and Nipawin. (Condensed Book, page 184) [ 93 ] And on the same page: On numerous occasions SaskPower, as delegated by WSA, has tried to engage with the CHCN to arrange for such meetings.

This included repeated attempts throughout June, August, September and October of 2016. The level of consultation by CHCN has in some

cases been inconsistent with offers to meet going unanswered and with scheduled meetings being canceled without explanation or offer to reschedule…WSA and SaskPower have been available to you, by other means such as telephone, e-mail and written correspondence, to discuss any concerns with the ongoing consultation that the community may have had. (Condensed Book, page 184) [ 94 ] Finally at page 8: …WSA and SaskPower are not prepared to fund any further environmental studies or traditional land use studies for this consultation. We do not feel these are necessary.

However, we would like to meet with your community to understand, from your perspective, how the Licensing will adversely impact your community’s ability to exercise rights and traditional uses. … (Condensed Book, page 187) [ 95 ] The above paragraph is the indication as to why the additional funding of $158,700.00 and $253,700.00 requested by CHCN for a technical consultant, collection of information and legal fees was denied. [ 96 ] A telephone conference call occurred on April 5, 2017. Present on the call were CHCN and SaskPower representatives.

While there was some disagreement surrounding the accuracy of the meeting notes taken by Ms. Campbell, it seems that during the call, CHCN and SaskPower agreed to do an inventory of the work/studies that had been done to date that addressed the effects of EBC.

SaskPower observed that a number of interviews had already been conducted with elders, hunters, trappers and gatherers which could be used as a basis to determine treaty rights impacts. [ 97 ] One of those studies which all parties had access to, was the research work done by Professor Norman Smith, Professor Emeritus, Department of Earth and Atmospheric Sciences at the University of Nebraska who provided a research paper he had authored to the WSA on July 18, 2016 [Smith Report].

He also provided a copy to CHCN and Tim Jardine, who, noted below, also conducted research which the parties had access to. [ 98 ] The Smith Report was published (2016) in the journal Geomorphology and entitled “Dam-Induced and natural channel changes in the Saskatchewan River below the E.B. Campbell Dam, Canada”. Research for the report was conducted from 2003 to 2014. This research focused on sediment starvation and resulting impacts. The WSA provided in-kind support for the research.

The first paragraph of that report reads: The construction of dams and reservoirs on alluvial rivers disrupts the normal patterns of flow and sediment transfer, thereby altering geomorphic processes and forcing modifications of downstream channels. Such modifications have been examined for a large variety of dams and settings (Pemberton, 1976; Petts, 1984; Williams and Wolman, 1984; Brandt, 2000; Petts and Gurnell, 2005; Graf, 2006; Schmidt and Wilcock, 2008, Alexeevsky et al., 2013; Marren et al., 2014)… (Condensed Book, page 5) [ 99 ] A 2018 plain language

summary of that published report was prepared at the request of the CHCN. Dr. Smith provided in the “Comments”

section at page 4: Although the present reach of dam-induced channel change appears to extend to about 81 km downstream from EBC, it is likely that enlargement will continue to develop farther downstream. These enlargement effects in Reaches I – III are probably permanent and irreversible due to the long term absence of new bedload. Two potential effects are likely with regard to the future of the SRD:

(1) With greater channel capacities, the frequency and volume of overbank flooding will decrease as the channels retain more of the imposed flows within their banks.

(2) Large portions of the SRD wetlands are sustained by variously sized distributary channels emanating from the main channels. For any given discharge, enlargement of the parent channel results in lowering the elevation of its water surface which in turn lowers the water-surface levels of its connected distributaries and thus reduces flow to the surrounding wetlands. Due to these impacts caused by channel enlargement, the SRD marshes and shallow lakes that are replenished by these channels will receive less and less water as channel capacities continue to increase by sediment starvation.

Effects of reduced flooding are already observed in the areas fed by lower Reach I and Reaches II and III --- shrinking and disappearing lakes, abandoned distributaries, drying marshlands, willow/alder encroachment in formerly open fens.

By starving the avulsion belt of new sediment , the dam is speeding the process towards evolving a single dominant channel… (emphasis added) (Condensed Book, page 27) [ 100 ] Further at page 5: How far and how quickly these dam-induced channel changes will extend downstream is an important question but a difficult one to predict due to a number of factors such as dam operations, upstream water supply (e.g. climate, irrigation, municipal consumption, land usage, possible new impoundments, channel diversions, local and provincial water-usage agreements), channel perimeters (e.g. types and abundance of riparian vegetation, composition and stability of banks, character of channel floor) and human disturbances. (Condensed Book, page 28) [ 101 ] The “Overall Conclusion” of the plain language document reads: Our studies show that enlargement of channel reaches downstream of EBC is an active and ongoing process over at least the upper 81 km, with sediment starvation as the main underlying cause .

While it is currently not possible to predict the eventual downstream extent of dam-induced channel change and the degree of its associated effects on surrounding wetlands, these impacts are likely to

continue into the foreseeable future under the present constraints of water supply and sediment impoundment. If these conditions continue, the SRD will likely suffer major losses of wetland habitat and other cumulative and/or unanticipated effects caused by sediment starvation over time . (emphasis added) (Condensed Book, page 28) [ 102 ] This plain language document was provided to the WSA in May 2018. [ 103 ] In the fall of 2016, University of Saskatchewan Professor Dr. Tim Jardine disseminated a report [Jardine Report], which had been partly funded by SaskPower.

The four years of research from which the report resulted examined how the Saskatchewan River and downstream environment are influenced by the operations of EBC. It attempted to provide guidance as to how EBC might be operated to minimize harmful effects and maximize beneficial ones. The report focused on hydrology, chemistry and biology. [ 104 ] The second paragraph of the “Executive

Summary” of the Jardine Report reads: The general findings suggest that while E.B. Campbell is considerably constrained by upstream users in the amount and timing of water it is able to deliver to the river and delta, minor adjustments in operating rules could bring benefits to the downstream environment.

Attention should be paid to: 1) ramping rate, both while increasing and decreasing flows during flood events, 2) specific reaches downstream that appear more vulnerable than others to fish stranding, and 3) attempting to pass estimated flood thresholds to recharge delta wetlands while minimizing infrastructure damage and displacement for the downstream community. (Condensed Book, page 30) [ 105 ] The topics of analysis included water flows, water quality and sediment, algae, fish, waterfowl, moose and muskrat resulting from EBC operations and the condition of the SRD. [ 106 ] Five recommendations resulted.

In brief, they were:

i) As much as possible, water should be released from EBC in a way that matches incoming flows to Codette Lake, attempting to mimic natural flow patterns in order to restore the SRD’s ecological functions.

Enabling peak flows would better connect the SRD wetlands to improve water quality, assist in controlling weeds, allow access for fishes; and provide foraging habitat for incoming waterfowl during the fall; ii) Ramp up the water release from the spillway as slowly as possible during flood periods to enable terrestrial mammals to avoid incoming floodwaters; iii) Increase minimum flows during the ice-free period to minimize stranding of small fishes; iv) Improve communication with downstream communities to de-mystify when and why water is released.

Operational constraints such as spring spawning and the dominance of releases from Gardiner Dam should be regularly acknowledged in briefs to downstream users. SaskPower should also respond to community concerns and recognize the collective knowledge held by community members about the SRD’s hydrology and ecology; and

v) Initiate candid conversations about the trade-offs between impacts and benefits of floods for the SRD and the community of Cumberland House. [ 107 ] On April 13, 2017, SaskPower sent an email to Ms. Campbell as a follow up to the April 5, 2017 meeting, noting that most of the studies Ms. Campbell requested had already been provided to CHCN. SaskPower referenced the Jardine Report, advising that all parties were fortunate to already have in hand a long term study regarding EBC’s impacts, including those impacts on Treaty rights to hunt, fish and trap for food and the impact on traditional uses of the area.

Further, it was noted that information regarding those impacts was gathered, in part, from CHCN members. Arrangements were being made by SaskPower for Mr. Jardine to personally present this information to CHCN. Finally, it was noted that the Province of Saskatchewan had, in 2008, 2010 and 2014, provided CHCN with a total of $172,000.00 for a traditional land use [TLU] study. [ 108 ] Coming to the end of the April 13, 2017 email, Mr. Johnston for SaskPower stated: As I have said many times, we are not consulting about the construction of the E.B.

Campbell and Nipawin hydro facilities as the Crown is not required to consult on past actions. We want to focus on the potential adverse impacts as a result of the licensing of these facilities as they exist now. We want to avoid, minimize or mitigate potential adverse impacts to rights and traditional uses going forward. This means focusing on meaningful accommodation.

We would also like to begin discussing accommodation ideas at the next meeting and hear any ideas about accommodation that the community may have. (Record, page 472) [ 109 ] On April 5, 2017, a conference call occurred with the CHCN consultant and SaskPower. [ 110 ] On April 18, 2017, CHCN sent a letter to Ms. Ross indicating they disagreed with the WSA’s assessment that the situation attracted low level consultation. CHCN also stated disagreement with the characterization that CHCN had been unresponsive to meeting. [ 111 ] A few days later on April 24, 2017, Ms. Campbell sent a letter to Mr.

Johnston wanting funds to retain an expert to review the studies that had already been completed. She said CHCN was trying to determine how EBC might affect the river and downstream environment in the future. She also wanted to know what studies SaskPower had commissioned regarding the impacts on CHCN’s Aboriginal and treaty rights.

[ 112 ] On May 2, 2017, Mr. Johnston replied to Ms. Campbell’s letter regarding the issue of funding: The SaskPower First Nations and Metis Consultation Participation Funding Application was completed and signed by Chief Stewart on December 20, 2016. All decisions regarding the allotment of the funding available was entirely up to the Cumberland House Cree Nation (CHCN) to determine. As such, CHCN chose not to budget any funding to

Section 3 – Independent Professionals/Consultants in their application for consultation participation funding… Your comments regarding the studies provided to CHCN can be discussed at our next meeting.

In regard to previous Traditional Land Use (TLU) studies funded by the province and done by CHCN that may assist in identifying potential adverse impacts related to the relicensing decision, Raymond Dussion [SaskPower] had raised the possibility of reviewing these preexisting TLU studies that were funded by the province…Your questions and requests pertaining to change in minimum flow research and sediment remediation plan studies can also be addressed at our next meeting. (Record, page 528) [ 113 ] This letter is followed by a May 5, 2017 letter from Ms. Campbell to Mr.

Johnston in which CHCN asks for $8,000.00 in funding to enable a lawyer to be present at the next consultation meeting. Further, she stated that the $15,000.00 already provided to CHCN from SaskPower was thought to be initial funding only and that three other proposals had been made by CHCN for funding to pay for consultants and legal support. [ 114 ] By letter of May 17, 2017, WSA’s Ms. Ross, responded to CHCN’s/ Ms. Campbell’s correspondence of April 18, April 21, April 28, May 1 and May 4, 2017.

She noted that SaskPower had offered capacity funding up to $15,000.00 to assist with consultation participation, which included record management which was a concern of CHCN. She reiterated that the initial assessment of the impacts of EBC were minor but occurring over a long period of time. This was because no operational changes to EBC were proposed by SaskPower and thus impacts would remain largely as they currently exist. The result was that consultation was low, as per the June 2, 2015 letter.

She added that the WSA was open to hearing information from CHCN which would cause a reassessment of that conclusion. Ms. Ross later stated that the focus of the consultation process was regarding potential for new or novel impacts that may result from the decision to relicense. Ms. Ross stated that not all available funding had been used by CHCN. [ 115 ] Consultation continued on June 27, 2017. CHCN, the WSA and SaskPower representatives participated.

A power point deck utilized by SaskPower during the meeting reflected what adverse impacts CHCN had identified as a result of EBC: • Inability to access hunting grounds • Unable to fish commercially and own use • Unable to access culturally sensitive spiritual sites • Outboard, snowmobile damage • Habitat degradation for fur bearing animals • Depletion of fish species • Loss of traps, nets • No support for traditional use cabins due to floods • Fluctuating water levels have changed the course of water ways and altered the water levels of the largest inland delta in North America • Major damages to the environment • Social and economic negative impacts • Flooding over the past 30 years has: • forced people out of our community; • damaged infrastructure, particularly the road into Cumberland House as well as homes and other buildings; • caused dislocation of and anxiety among our members, and • Resulted in great expense to CHCN. • Ducks Unlimited rehabilitation efforts have failed to mitigate adverse effects.

In short: • The Delta as a whole has dried out; • The area appears to [sic] increased flooding; • Risk of catastrophic flooding events; and • altered river courses.

(WSA Record, page 1278) [ 116 ] SaskPower noted that it had considered the following studies which contained research consistent with the CHCN information: 1. CHCN TLU s tudy in which information was collected from CHCN res

[…]