WATERHEN LAKE FIRST NATION APPLICANT - v. -, 2023 SKKB 230

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 230 Date: 2023 10 31 Docket: QBG-SA-00109-2022 Judicial Centre: Saskatoon BETWEEN: WATERHEN LAKE FIRST NATION APPLICANT - and - HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN as represented by the Minister of Parks, Culture and Sport, WATER SECURITY AGENCY, RURAL MUNICIPALITY OF MEADOW LAKE NO. 588 and HAMLET OF WATERHEN LAKE SOUTH RESPONDENTS Counsel: Anjalika Rogers for Waterhen Lake First Nation P.

Mitch McAdam, K.C. for Saskatchewan Minister of Parks, Culture and Sports Lauren Wihak for Water Security Agency Adryan Toth for Rural Municipality of Meadow Lake No. 588 and Hamlet of Waterhen Lake South _____________________________________________________________________ DECISION MESCHISHNICK J.

October 31, 2023 _____________________________________________________________________ [ 1 ] The Respondent, Hamlet of Waterhen Lake South [Hamlet] applied to the Respondents, HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN as represented by the Minister of Parks, Culture and Sport [Minister] and Water Security Agency [Agency] for the necessary approvals and permits to construct an inland marina on Waterhen Lake [Lake] which is located in Meadow Lake Provincial Park [Park]. [ 2 ] The marina is to be located adjacent to the Hamlet.

It was to replace a system of docks used by the Hamlet’s residents that are moved in and out of the Lake each spring and fall. The marina which is now excavated is just less then a half acre in size and if completed will be connected to the Lake by a 15-meter-wide channel.

[ 3 ] The Minister acting through the Park’s manager determined that construction of the marina did not trigger a duty to consult with the Applicant, Waterhen First Nation [Waterhen]. Because the marina would affect the shoreline of a water body and the water body itself, its construction was conditional on the issuance of an Aquatic Habitat Protection Permit [Aquatic Permit] by the Agency.

After the determination by the Minister that a duty to consult had not been triggered and was otherwise prepared to approve the construction of the marina, the Agency reviewed an application by the Hamlet for the Aquatic Permit. Relying, on its own expertise and a report requisitioned by the Hamlet from a biologist about the potential impacts of the marina on fish and fish habitat in the Lake [Habitat Report], the Agency issued to the Hamlet the Aquatic Permit on July 30, 2021.

The Minister in turn issued a Work Authorization Permit [Work Permit] to the Hamlet for the construction of the marina on September 23, 2021. [ 4 ] Waterhen asserts that the Respondents have not honoured their duty to consult and administrative law duties prior to issuing these permits. Waterhen says that the marina will interfere with its treaty rights to conduct traditional ceremonies and to hunt, fish, trap and gather.

It also says the dredging of a channel for the marina to the Lake will impede access to areas where its members carry on some of those activities. [ 5 ] Waterhen applies to quash the Aquatic Permit and the Work Permit. Some Background [ 6 ] Waterhen is a band within the meaning of the Indian Act , RSC 1985, c I-5 and an Aboriginal People within the meaning of s. 35 of the Constitution Act, 1982 , being

Schedule B to the Canada Act, 1982 (UK), 1982, c 11 . Waterhen became a signatory to Treaty 6. According to the evidence it did so in 1921. The Encyclopedia of Saskatchewan found at ourspace.uregina.ca says Waterhen’s reserve land of 7,972.2-ha was surveyed in 1916. [ 7 ] The reserve land is made up of various parcels. The western side of one of the parcels abuts the eastern side of the main body of the Lake. A separate smaller parcel of reserve land is on the south side of the Lake. A map showing the reserve land in relation to the Lake and the Park is found at Exhibit A to the Affidavit of Peter Bouvier [Mr.

Bouvier] sworn July 20, 2022. [ 8 ] The Park was founded in 1959. It encompasses 1,600 kms and extends 113 kilometers from the provincial border with Alberta to the eastern shore of the Lake. Developments in the Park that have been previously authorized include 13 campgrounds, the Resort Village of Greig Lake, the Hamlet and 239 cottage leases within five subdivisions. [ 9 ] The Hamlet was and continues to be an “organized hamlet” within the meaning of The Municipalities Act , SS 2005, c M-36.1 [ Act ].

As such it continues to be governed subject to the provisions set out in that Act by the Respondent, RM of Meadow Lake No. 588 [RM]. [ 10 ] The Hamlet is located in the Park. It is on the southwest side of the Lake. It consists of 31 cabins which are on titled lots that were surveyed by the rancher who owned the land prior to the creation of the Park. Some of the cabins are occupied year- round. [ 11 ] There are developments immediately to the south of the Hamlet along the shore of the Lake. The first is M & N Resort which is owned by Waterhen. It consists of 40 campsites, six cabins and a store.

Next to it is a 20-site campground and just beyond that is Tawaw Cabins which has 18 cabins and 33 campsites. [ 12 ] Between Tawaw Cabins and M & N Resort is the only boat launch for the Lake. The Inshore Marina [ 13 ] Currently the Hamlet installs in the spring a system of docks in the Lake that holds about 20 boats and removes that system in the fall at a cost of about $3,600 per year. As shown in Tab D-7 of the Record of Proceedings the area where the docking system is located is immediately adjacent to the Hamlet. It was regularly dredged to ensure there is sufficient water depth for boats to moor.

The material dredged from this area was deposited on shore in front of the docking system. Severe weather is always a concern to boat owners using an in lake docking system. [ 14 ] The Hamlet proposed to the Minister the construction of an inshore marina that would house 30 boats. As shown in Tab D-8 of the Record of Proceedings the proposed marina is immediately in front of the existing in lake docking system. It covers an area which is 200m x 250m. It would be seven feet deep and connected to the Lake by a 15 meter-wide channel.

The excavated material would for the most part be used to build berms around the marina. [ 15 ] The marina would be used only by the residents of the Hamlet. Scope of Waterhen’s Treaty Rights Within the Park [ 16 ] The Minister and the Agency acknowledge that they are constitutionally obligated to honour Waterhen’s Treaty 6 rights by virtue of the Natural Resources Transfer Agreement 1930 , RSC 1985, Appendix II, No 26 at para 12.

They also acknowledge that even though the creation of the Park made it “occupied Crown land” that Waterhen’s members have the right of access to the Park to engage in activities protected by Treaty 6 in areas where those activities are permitted. [ 17 ] The Minister and the Agency also acknowledge that while Treaty 6 does not expressly protect the gathering of plants for food or medicine or ceremonial or spiritual practices that might be associated with sweat lodges, the province’s consultation policy provides that First Nation bands like Waterhen will be consulted about government decisions and actions that have the potential to adversely impact those activities.

The province’s consultation policy is documented in the First Nation and Metis Consultation Policy Framework found at Tab 54 of the Record of Proceedings and the Duty to Consult Process Guide for Saskatchewan Government Officials is found at Tab 55 of the Record of Proceedings.

[ 18 ] The Minister also acknowledges that access to hunting and trapping areas is ancillary to the exercise of these treaty rights. The Desire to be Consulted [ 19 ] David Fleury [Mr. Fleury] is a councillor for Waterhen. In an affidavit sworn July 20, 2022, he spoke of the interest of Waterhen to be involved in matters taking place in the Park.

He said that starting in 2019 Waterhen contacted the Minister expressing an interest in developing a memorandum of understanding regarding consultation about activities taking place in the Park. [ 20 ] Representatives of the Park ultimately responded to this initiative by advising in August of 2020 that in lieu of a memorandum of understanding that a park advisory group would be re-established to communicate on general matters and specific projects in the Park.

The purpose of the advisory group would be to foster the principles of respect and integrity, to address potential issues and to work together to identify potential solutions (Exhibit B to the affidavit of David Fleury sworn September 20, 2022). [ 21 ] Mr. Fleury says this message was repeated by Trevor Finlay [Mr. Finlay], the manager of the Park, in a meeting on May 21, 2021. [ 22 ] Despite these representations the development of the inland marina was not brought to the attention of Waterhen. Mr.

Fleury says it came to Waterhen’s attention that a marina was being built in October of 2021 when he drove by the area and noticed that excavation of the marina was underway. Thereafter Waterhen made inquires at many government levels concerning the failure of the Park to consult Waterhen on the development of the marina. The Park responded by sharing information. Suffice it to say that these communications did not satisfy Waterhen that it had been consulted on this development and this application was brought.

Use of the Land, Lake and Shoreline by Waterhen Members [ 23 ] I have already referred to some of the evidence provided by Mr. Fleury. He also says that the proposed marina is near a sweat lodge used by Waterhen for ceremonies and identified the location where a sweat lodge has been located. He also points out that the Lake is the sole source of Waterhen’s drinking water so the impact of the marina on water quality should have been a basis for consultation. [ 24 ] Affidavits were also filed by Michael Ernest [Mr. Ernest], Phillip Mistickokat [Mr. Mistickokat] and Mr. Bouvier. [ 25 ] Mr. Ernest and Mr.

Bouvier are Elders and Sweat Lodge Holders. They have lived in the area of the development since their births in 1952 and 1956 and now live on reserve lands. Both have been Waterhen councillors for various terms. Mr. Ernest was Waterhen’s chief for two years starting in 1997. [ 26 ] Mr. Bouvier was a Waterhen councillor from 2020 to the end of December 2022. It is not clear if he has continued in that capacity since then. [ 27 ] Mr. Ernest and Mr. Mistickokat attest to Waterhen’s reliance on the Lake for fishing and, along with Mr. Fleury, on its shorelines for gathering of plants for medicines.

They identify a variety of plants gathered by Waterhen’s members that grow along the shoreline in the area where the marina is being constructed. [ 28 ] Mr. Ernest believes that members of the Waterhen community gather those plants from that area. Mr. Bouvier says he has gathered Labrador Tea in the area of the marina development. In a response affidavit, Mr.

Bouvier says plants like Labrador Tea grow along the shoreline in the area of the marina excavation so it only stands to reason that it would have been found on the shoreline that has now been excavated or covered with material from the excavation. [ 29 ] Mr. Mistickokat also recounts his family’s history of hunting, trapping and gathering on the west side of the Lake and how that area would be accessed. [ 30 ] Mr. Mistickokat, Mr. Ernest and Mr. Bouvier are all concerned that the canal from the Lake to the marina will deny Waterhen members access to hunting trails. [ 31 ] Mr.

Bouvier says he used the trails in the area of the marina to access hunting grounds in the spring and fall of 2021 using a quad. He says that those trails include a trail along the shoreline of the Lake that will not be available for travel when the canal from the Lake to the marina is opened. [ 32 ] Mr. Ernest, Mr. Mistickokat and Mr. Bouvier are also concerned that the marina will increase boat traffic on the Lake and affect the ability of members to net for fish on the Lake. [ 33 ] Both Mr. Ernest and Mr.

Mistickokat also recount other matters that over the years have affected the ability of Waterhen’s members to freely exercise their treaty rights. The Legal Framework Triggering a Duty to Consult [ 34 ] The foundation of the duty to consult arises from the Crown’s honour and the goal of reconciliation, Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 at para 35 , [2004] 3 SCR 511 [ Haida Nation ] .

Reconciliation gives rise to a duty to consult because of the Crown’s assertion to sovereignty over land and resources formerly occupied and controlled by Indigenous people, Haida Nation at para 32 . [ 35 ] It is triggered when the Crown has actual or constructive knowledge of a potential Aboriginal claim or right and the Crown is contemplating conduct that may potentially adversely affect that Aboriginal claim or right, Rio Tinto Alcan Inc. v Carrier

Sekani Tribal Council, 2010 SCC 43 at para 3, [2010] 2 SCR 650 [Rio Tinto]. [36] In this case it is not disputed that the Minister and the Agency had notice of Waterhen’s rights under Treaty 6and that those rights extended to the Park. Nor is it in dispute that approval of the construction of the marina was Crown conduct.

Thequestion that arises is whether the contemplated conduct had the potential to adversely affect those rights. [37] In cases where a treaty right as opposed to a claim are in issue Mikisew Cree First Nation v Canada (Minister ofCanadian Heritage), 2005 SCC 69 at para 34, [2005] 3 SCR 388 [Mikisew] said: 34 In the case of a treaty the Crown, as a party, will always have notice of its contents. The question in each case will therefore be todetermine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty toconsult.

Haida Nation and Taku River [Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74,[2004] 3 SCR 550] set a low threshold.

The flexibility lies not in the trigger (“might adversely affect it”) but in the variable content ofthe duty once triggered. …. [38] While the degree to which Crown conduct would adversely affect a treaty right is a low one it remains for theApplicant to establish an appreciable or discernable impact on the exercise of a treaty right, Buffalo River Dene Nation v Saskatchewan(Minister of Energy and Resources), 2015 SKCA 31 at paras 90-91, [2015] 7 WWR 82 [Buffalo River].

In that case the court held thatsince the granting of a mineral right did not authorize work on the surface of the land there could be no impact on hunting, fishing andtrapping treaty rights. [39] The right to be consulted on government conduct that potentially may have an impact on a treaty right is aprocedural right, Mikisew at para 10. It is for the Applicant to show a causal relationship between the contemplated conduct and thepotential for adverse impacts, Rio Tinto at para 45.

Speculative impacts will not trigger the duty to consult, Rio Tinto at para 46 andGeorge Gordon First Nation v Saskatchewan, 2022 SKCA 41 at para 127 [George Gordon]. [40] On the other hand, when considering if a duty to consult is triggered the procedural nature of the right does notrequire the impacts to be certain. A current appreciable potential for an adverse effect is sufficient, George Gordon at para 127.

This wasanother case where the court concluded at para 119 after an extensive review of the law, the governing Treaties and legislation andagreements between the parties that there was “… no potential to affect [the claimants] existing claim or rights …”. [41] In determining if a duty to consult had been triggered it is the impacts of the contemplated conduct that must beconsidered. The impact of past conduct will not form part of the inquiry, Rio Tinto at para 49 and Buffalo River at para 45.

However, inconducting a contextual analysis the cumulative effects of an ongoing project like a pipeline and changes in its use and operation caninform as to the seriousness of the impacts of the contemplated conduct, Chippewas of the Thames First Nation v Enbridge PipelinesInc., 2017 SCC 41 at paras 41-42, [2017] 1 SCR 1099. [42] The taking up of Crown land by itself does not trigger a duty to consult. The duty is only triggered when thetaking up is accompanied by a potential adverse impact on a treaty right, Athabasca Chipewyan First Nation v Alberta, 2019 ABCA 401 paras 57 and 61, 94 Alta LR (6th) 279.

This reasoning is consistent with the need for a causal relationship between the planned conductand the potential for an adverse impact, that the adverse impacts cannot be speculative and that when there is no potential for an adverseimpact a duty to consult will not be triggered. The Legal Framework for Triggering Administrative Common Law Duties [43] From an administrative law point of view, it is clear that public bodies owe a duty of fairness in making adecision that affect the rights and interests of those affected by a decision.

In Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643, (WL)(GL) [Cardinal] the Supreme Court of Canada said: 14 … This court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every publicauthority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of anindividual: Nicholson v. Haldimand-Norfolk Police Commr. Bd., (SCC), [1979] 1 S.C.R. 311, 78 C.L.L.C. 14,181, 88D.L.R. (3d) 671, 23 N.R. 410 [Ont.]; Martineau v. Matsqui Inst.

Disciplinary Bd., (SCC), [1980] 1 S.C.R. 602, 13 C.R.(3d) 1, 15 C.R. (3d) 315, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, 30 N.R. 119; and A.G. Can. v. Inuit Tapirisat of Can., (SCC), [1980] 2 S.C.R. 735, 115 D.L.R. (3d) 1, 33 N.R. 304 …. [44] If a procedural obligation is found to exist the extent of that obligation is determined by conducting an analysisas set out in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker]. Theguiding principle laid out in that case is whether an affected party had a meaningful opportunity to present its case.

The Standards of Review [45] The existence of a duty to consult is a question of law and when it can be isolated from the facts the standard ofreview is correctness. When the duty is premised on an assessment of the facts a degree of deference to the initial adjudicator may beappropriate. The degree of deference will depend on the nature of the question the tribunal is addressing and the extent to which the factswere within the expertise of the tribunal.

If the tribunal is in a better position to evaluate the issue then the reviewing court or when thequestion of law is inextricably intertwined with the facts some degree of deference may be required and the standard of review will bereasonableness, Haida Nation at para 61.

[ 46 ] In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ] the Supreme Court of Canada delineated the standards of review for statutory appeals and judicial review of administrative decisions. The challenge to the granting of the Work Permit and the Aquatic Permit are not statutory appeals. They are administrative decisions. In the case of the issuance of the Work Permit there is an underlying decision addressing procedural fairness. That of course is the decision that Waterhen’s procedural right to be consulted was not triggered.

The reasons for that decision are found in some of the documents that form part of the record. Those reasons are supplemented by the Park’s manager in his affidavit evidence and in the cross-examination of him on that affidavit evidence. [ 47 ] In the case of the granting of the Aquatic Permit there is no underlying written decision explaining the reasons for the issuance of the permit or the decision to proceed with consideration of the application for permit without notice to Waterhen. [ 48 ] There is some debate as to whether administrative common law principles should be applied in this case.

In the event they do the standard of review must be identified. [ 49 ] There is some “lament” as to whether correctness or reasonableness is the correct standard for reviewing claims of breaches of procedural fairness, SNC–Lavalin Inc. v Saskatchewan Power Corporation , 2022 SKKB 242 at paras 22-32 .

For the purposes of this case, I will proceed on the basis that correctness is the standard to be applied to the claims by Waterhen that it was denied natural justice and procedural fairness in the granting of the Work Permit and the Aquatic Permit, Mission Institution v Khela , 2014 SCC 24 at para 79 , [2014] 1 SCR 502 . [ 50 ] Apart from questions of procedure fairness, the presumption of reasonableness applies to the decisions to issue the Work Permit and the Aquatic Permit and Waterhen acknowledges in para. 55 of its Brief of Law the exceptions to that presumption as set out in Vavilov at para 5 do not apply.

Waterhen has the onus to establish the decisions are unreasonable. [ 51 ] The reasons for a decision are the primary mechanism for assessing reasonableness, Vavilov at para 81 . The specialized knowledge and demonstrated experience and expertise of the decision-maker must also be considered, Vavilov at para 93 . Where, as in the case of the Aquatic Permit, there are no underlying reasons for the issuance of the permit the record as a whole and the regulatory regime must be considered. [ 52 ] A decision is reasonable if it is justified, transparent and intelligible.

It must be internally coherent, employ a rational chain of analysis and be justified by the facts and law that constrained the decision-maker ( Vavilov at paras 85 and 105 ). If the decision-maker fundamentally misapprehends or fails to take into account relevant evidence, the decision will be unreasonable ( Vavilov at para 126 ). [ 53 ] A review of a decision for reasonableness starts with judicial restraint. A reviewing court should intervene only when necessary.

It will be necessary to do so when the decision lacks the requisite degree of justification, intelligibility and transparency and cannot be justified in light of the factual and legal constraints applicable in the circumstances, Vavilov at paras 99-100 . Some Observations [ 54 ] Excavating a marina and cutting a channel from it to the Lake would take up that land and it will no longer be available to Waterhen members to exercise treaty rights.

In that sense and subject only to some unknown and unlikely reason for the marina and channel to be abandoned and refilled in the future, the taking up is permanent. [ 55 ] A contextual analysis also keeps in mind that this is not a new taking up of previously unoccupied or unaltered Crown land but a change in the use of land that was previously taken up when the Park was created. Designation of this land as a provincial park carried with it an acknowledgement that the land and the Lake would be used for recreational purposes which in turn included the possibility of further development to enhance its use.

The developments neighbouring the proposed marina including that owned by Waterhen are examples. [ 56 ] Stepping back a bit further it is to be noted that the development of the Hamlet began before the Park was created and that the Hamlet is not the only development along this

section of the Lake’s shoreline. [ 57 ] While this history by itself cannot overtake the duty to consult with Waterhen when further development risks interference with its member’s treaty rights, it does point out the collage of interests that have been impressed on this piece of land by Treaty 6 and previous decisions of Waterhen, private individuals and the Crown. The Treaty Rights at issue [ 58 ] Waterhen says the proposed project will interfere with its member’s right to hunt, trap, fish and gather foods and medicines in the Park.

It also says that it will interfere with the operation of a healing lodge that the evidence suggests was located at one time on the shore between the Hamlet and the developments to the south of it. Finally, it says that the channel to be cut between the marina and the Lake will interfere with its access to hunting and trapping areas. Overview of the Decisions to be Reviewed [ 59 ] There are two matters that add to complexity of this case. [ 60 ] The first appears to be somewhat unique.

Waterhen challenges the decisions of not one but two decision-makers – the Minister and the Agency. [ 61 ] The second is a two-pronged attack relying on both the constitutional right to consultation and common law

administrative law principles. Waterhen says that both the Aquatic Permit and the Work Permit should not have been issued without honouring Waterhen’s constitutional right to consultation. It also argues that the Work Permit and the Aquatic Permit should be set aside on administrative law grounds. In other words, Waterhen argues it was denied the procedural right to consultation which is grounded in s. 35 of the Constitution Act, 1982 , and the administrative common law right to procedural fairness.

It also asserts that, depending on the standard of review of the particular question, those decisions must be correct or reasonable. [ 62 ] The starting point is to identify the decisions that were made by the Minister and the Agency that are being challenged. [ 63 ] Overall, the Minister made one decision that is being challenged – the granting of the Work Permit. Among the considerations that went into the granting the Work Permit was the question of whether a duty to consult was triggered. In making that decision the Minister had to consider whether a number of treaty rights might be adversely affected.

Within this framework, the Minister did not notify Waterhen that it was considering if a duty to consult was triggered. [ 64 ] The Agency made three decisions. The first was to defer to the decision of the Minister on whether the duty to consult was triggered.

The second was to determine if it would proceed with considering the application for the Aquatic Permit without giving notice of its intention to do so to Waterhen and the third was, in the context of Waterhen’s treaty rights, if fish populations might be adversely affected. [ 65 ] It may be that if this marina development were not in a provincial park that the Agency would have been called on to consider whether a duty to consult had been triggered before or as a part of deciding if the Aquatic Permit should be granted.

But because this marina is within a provincial park and because the Minister took on the responsibility to determine if a duty to consult was triggered, Waterhen’s treaty right to fish is the only treaty right that became the main focus of the decision by the Agency to grant the Aquatic Permit.

The Grounds for Relief and Framing the Questions [ 66 ] The ground for relief set out in Waterhen’s Originating Application for Judicial Review are: a. [Waterhen] has a treaty right to hunt, fish and trap for food within [the Park]. [Waterhen’s] reserve is located on [the Lake] and [Waterhen] uses the Lake and surrounding lands to exercise its treaty rights and for traditional, ceremonial and cultural purposes. [The Lake] is also the community’s source of drinking water.

Notwithstanding the potential impacts of the Marina on [Waterhen’s] treaty rights and use of its traditional and ancestral territory, the Minister and the [Agency] failed to consult with [Waterhen] prior to issuing the Permits to the Hamlet. [Waterhen] says that this constitutes a violation of the Crown’s duty to consult arising from the Honour of the Crown and was a breach of procedural fairness and natural justice. When each of the decisions made by the Minister and the Agency is considered this ground for relief can be broken down into the following questions: i.

Did the Minister err in concluding that a duty to consult was not triggered by the proposal to construct the marina? ii. Did the Agency err in not conducting its own review to determine if a duty to consult had been triggered? iii. Did the Minister have and did it breach an administrative law duty of procedural fairness in determining that a duty to consult was not triggered? iv. Did the Agency have and did it breach an administrative law duty of procedural fairness when it did not provide notice to and hear from Waterhen before: 1.

Deciding that it would defer to the Minister on the question of whether a duty to consult had been triggered? 2. Issuing the Aquatic Permit? b. That the Permits are unreasonable and should be quashed because they were issued: i. Without providing Waterhen an opportunity to be heard and consulted with prior to their issuance. In my view, when the first ground for relief is broken down as it is above, this ground overlaps with those questions and does not add to the list of questions to be answered; ii. In violation of Saskatchewan’s First Nations and Metis Consultation Policy Framework; iii.

Without an Environmental Impact Assessment under the Environmental Assessment Act ; and iv. On the basis of [the Habitat Report] that was overly narrow in scope, failed to take into account the impact of the Marina on the environment generally and on [Waterhen’s] Aboriginal and treaty rights in particular, and drew conclusions without any evidence. This ground of relief can be broken down into these questions: 1. Was the decision by the Minister to issue the Work Permit, applying the law concerning the triggering of a duty to consult, unreasonable because it relied on the Habitat Report?

Inherent to this issue is whether there were flaws in the Habitat Report and

whether Waterhen has met the burden of establishing that there is a potential for an adverse effect on a treaty right. This question overlaps with a(

i) above and these questions will be addressed when that question is analyzed. 2. Was the decision by the Minister to issue the Work Permit, applying administrative common law principles, unreasonable because it relied on the Habitat Report? Again, inherent in this issue is whether there were flaws in the Habitat Report and whether Waterhen has met the burden of establishing that the decision was unreasonable. 3. Was the decision by the Agency to issue the Aquatic Permit, applying administrative common law principles, unreasonable because it relied on the Habitat Report?

Similarly, this issue draws into question whether the Habitat Report was flawed and whether Waterhen has met the burden of establishing that the decision was unreasonable. [ 67 ] Not all of these questions were addressed by Waterhen in its written and oral argument. But they were addressed by one or more of the Respondents. To ensure that I have not misread or misunderstood Waterhen’s arguments and because the Respondents did present written and oral argument on them, I will address them. [ 68 ] I will begin with the decision by the Agency to defer to the Minister on whether a duty to consult was triggered.

The Decision to Defer to the Minister on Whether a Duty to Consult was Triggered [ 69 ] The Supervisor for the Agency explained in her affidavit that where a development that requires an Aquatic Permit is located in a provincial park the Minister will be the primary decision-maker and the Agency relies on the decision-maker to take the lead in deciding whether the project triggers a duty to consult and whether to approve the project.

If there is no approval by the Minister, there is no need to consider the application for the Aquatic Permit. [ 70 ] It was not and cannot be seriously contended that the decision by the Agency to accept whatever decision the Minister made on the duty to consult question is subject to review on any standard under either the constitutional or administrative law grounds. [ 71 ] On a constitutional basis, the Agency is taken to know of Waterhen’s treaty rights.

The conduct in deferring to the Minister is Crown conduct but the decision by the Agency to defer to the Minister on the question of whether duty to consult was triggered could not be the cause of an adverse affect on one of Waterhen’s treaty rights.

The question was yet to be decided by another government agency who would examine the question with all treaty rights of Waterhen in mind and in accordance with the same law and policy as would be utilized by the Agency if it was called on to examine the issue. [ 72 ] It would be inefficient and a duplication of effort to have the same question reviewed twice by two agencies of the same government especially when the Agency says it accepts and follows whatever decision is made by the Minister. Moreover, there is no prejudice to Waterhen.

If it cannot successfully establish that the Minister breached its obligation to consult on the basis that Waterhen’s treaty right to fish might be adversely affected, it could not do so in a challenge to an independent decision by the Agency that no duty to consult had been triggered, if it had made one. [ 73 ] It must be kept in mind that at the heart of this case is the question of whether there was a potential for any of Waterhen’s treaty or other rights to be adversely affected by the construction of the marina.

Canadian jurisprudence has developed and refined in cases like Rio Tinto tests for determining if a duty to consult is triggered. The third arm of the test focuses on when there will be an adverse effect on an aboriginal claim or title or a treaty right. In this case that determination was to be made by the Minister and that determination is under review in this litigation. [ 74 ] As Cardinal points out the obligation of procedural fairness arises when a decision-maker like the Agency makes a decision that affects the rights or interests of an interested party.

In deferring to the Minister on the question of whether a duty to consult had been triggered the Agency was not making a decision that affected the rights or interests of Waterhen. The Agency said it would abide by whatever decision the Minister made on this question. It was leaving the determination of those rights to the Minister. [ 75 ] In my view the Agency did not owe a duty of procedural fairness to Waterhen in making the decision to defer to the Minister on the question of whether a duty to consult was triggered. [ 76 ] This assessment is also consistent with the guiding principle set out in Baker .

Procedural rights must provide affected parties with a meaningful opportunity to present their case. At the point of the decision to defer no determination had been made on whether a duty to consult had been triggered.

There was no case to be presented on the question of whether both the Minister and the Agency should be conducting separate assessments or whether a duty to consult had been triggered. [ 77 ] Furthermore, the decision by the Agency to defer to the Minister on the question of whether a duty to consult was triggered was not unreasonable. [ 78 ] The Agency was aware that the Hamlet had sought the approval of the Minister for the development of the marina and that a Work Permit would be required.

It was also aware that an application had been made to it for the Aquatic Permit. [ 79 ] The jurisdiction of the Minister and the Agency set out in the Park’s Legislation and the Agency Legislation is well defined. While there is a broad scope of responsibility and jurisdiction given to the Agency with respect to aquatic habitat protection permits it is, as that title implies, limited to matters affecting or that live in water. The responsibility for the review and issuance of the Work Permit fell squarely into the Minister’s jurisdiction.

While it may be that the Agency would have been required to conduct a duty to consult analysis if this development had not been in a provincial park the fact is that it is in a provincial park. Provincial park rules and

regulations were engaged.

Knowledge of those rules and regulations, the history of the Park and existing developments, its resources and any studies pertaining to those resources and, for that matter, the Park’s relationship with Waterhen, made the Minister the more logical and better suited government agency to consider whether there would be an impact on the collage of Waterhen’s treaty rights. [ 80 ] A somewhat analogous situation arose in Sagkeeng First Nation v Canada (Attorney General) , 2021 FC 344 , where the federal minister decided that a project would not be designated for environmental assessment under federal legislation.

The project was already subject to an environmental assessment under provincial environmental assessment law in Manitoba. The court concluded: 119 Upon review of the Minister's decision and the record that was before her when she made that decision I am satisfied that her decision was justified, transparent and intelligible and, therefore, reasonable. The decision was based on an internally coherent and rational chain of analysis and is justified in relation to he facts and law that constrained the Minister ( Vavilov at para 85, 105 ).

The Minister did not fundamentally misapprehend or fail to account for the evidence before her ( Vavilov at para 126 ). 120 Based on her expertise and the factors that she considered in arriving at her threshold discretionary decision that the Project would not be designated for an environmental assessment under CEAA 2012 [ Regulations Designating Physical Activities , S0R/2012- 147], it was reasonable for her to rely, in part, on the fact that Manitoba would be conducting an environmental assessment of the Project pursuant to Manitoba's The Environment Act, including consultations.

There is no evidence that the Minister was informed of the issuance of the Licence prior to the issuance of her decision or that, prior to the Minister's decision, Manitoba had failed to undertake any form of consultation with Sagkeeng.

To the extent that Sagkeeng is of the view that the consultation were inadequate and that Manitoba breached its duty to consult with Sagkeeng as a part of that process, its remedy is to challenge Manitoba's process. [ 81 ] Considering the record before the Agency (that the proposed development was to be located in a provincial park) and considering the jurisdiction of both the Agency and the Minister, I conclude that the decision to defer to the Minister on whether a duty to consult had been triggered was, subject to one caveat, justified, transparent and intelligible.

It was, subject to that caveat which I will deal with in the next section, based on an internally coherent and rational chain of analysis and is justified in relation to the law and the facts that constrained the Agency. It was reasonable for the Agency to rely on the fact that the Minister would be conducting an analysis and making a determination of whether a duty to consult had been triggered while knowing at that same time that its decision on whether to grant the Aquatic Permit might, in effect, result in a different conclusion.

A Flawed But Harmless Approach to Determining if a Duty to Consult was Triggered [ 82 ] At the point of the two decisions by the Agency regarding the Aquatic Permit (to proceed without notice to Waterhen and to approve the permit) a determination had been made by the Minister to approve the project. Included in the Minister’s decision was the decision that a duty to consult had not been triggered. But approval of the project would not become final until the Work Permit was issued.

Issuance of the Work Permit was conditional on the approval of the Aquatic Permit. [ 83 ] The decisions by the Minister that there was no duty to consult and the decision of the Agency that the development would not have an impact on fish and fish habitat seems to be out of proper sequence. In determining that the duty to consult had not been triggered it must be accepted that the Minister knew of Waterhen’s treaty right to fish. A component of the decision that a duty to consult was not triggered was that the right to fish had not been threatened.

Yet, the question of whether fish habitat and populations would be threatened was yet to be reviewed by the Agency when it considered whether the Aquatic Permit would be issued. [ 84 ] In other words, the Minister had made a determination that the right to fish would not be threatened knowing that another government agency whose statutory mandate it was to determine that issue had yet to review the question.

The Agency’s decision on whether fish populations and habitat would be adversely affected by the development of the marina would be an important piece of evidence to be considered by the Minister in deciding if a duty to consult had been triggered. [ 85 ] Looking at the process adopted by the Agency it would similarity seem illogical for the Agency to rely on the decision of the Minister that a duty to consult had not been triggered as it must also be taken to have known that a potential infringement of Waterhen’s treaty right to fish would trigger a duty to consult and, at the same time, of course, knowing that the impact of the marina on fish and fish habitat was a question it had to address in deciding to issue the Aquatic Permit. [ 86 ] Arguably, the decision that a duty to consult had not been triggered without considering whether the Aquatic Permit would be approved would be unreasonable because it did not consider relevant evidence or, in this case, wait until the decision on the Aquatic Permit had been made.

In

summary, it is difficult to see how a fulsome decision on the question of whether a duty to consult had been triggered could be made without a decision by the Agency on the Aquatic Permit.

It is equally difficult to understand why the Agency would abide by a decision of the Minister on that question when its mandate directed it to decide if one of the treaty rights would be affected. [ 87 ] Perhaps a better approach would have been for the Minister to say that it was prepared to approve the project if the Agency approved the Aquatic Permit reserving its decision on whether a duty to consult had been triggered until the decision on the Aquatic Permit decision was made. [ 88 ] Acknowledging that the Work Permit would not be issued if the Aquatic Permit was denied could be characterized as an acknowledgement that a duty to consult would be triggered with the denial of the Aquatic Permit or as an acknowledgement that the denial of the Aquatic Permit would require the Minster to review its decision on whether a duty to consult had been triggered before issuing the Work Permit.

[ 89 ] But that is not the position advanced by the Minister or the Agency in its evidence. The Minister says it approved the project and the Agency says it would not consider the application for the Aquatic Permit unless and until the Minister did so. The Minister does not say in its evidence that a denial of the Aquatic Permit because of an adverse effect to fish or fish population would translate into a conclusion that a duty to consult was triggered or even that it would require the Minister to reconsider whether a duty to consult had been triggered.

But that might have been the reality flowing from a decision to deny the Aquatic Permit. [ 90 ] However, there is another reality, and it is this. The Aquatic Permit was approved. It corroborated the decision by the Minister that no duty to consult was triggered because there was no potential affect on the treaty right to fish. The result is that both the Minister and the Agency determined that there was no potential for an adverse effect on fish habitat and populations and by extension Waterhen’s treaty right to fish.

Notwithstanding that the Minister had made a decision without knowing what the Agency would conclude with respect to the impact on fish populations and that the Agency deferred to a decision that no duty to consult had been triggered when it had yet to determine if fish habitat and populations would be adversely affected, these errors in approach became harmless. [ 91 ] I turn then to analyzing if the two remaining decisions made by the Agency should be quashed on administrative common law grounds. [ 92 ] The granting of the Aquatic Permit is challenged as being granted without regard to Waterhen’s common law procedural rights.

The decision to grant the Aquatic Permit is also challenged as being unreasonable because it relied on a flawed report – the Habitat Report. These are separate questions. I will first analyze the claim that there was a breach of Waterhen’s procedural rights when the Agency proceeded to consider that application for that permit without notifying Waterhen that it was going to do so. Quashing the Aquatic Permit for Breach of the Common Law Duty of Procedural Fairness [ 93 ] The core question in this case is whether Waterhen’s treaty right to fish may be adversely affected by the construction of the marina.

If it is, it has the constitutional right to be consulted before the project is approved. [ 94 ] The constitutional right to consultation is a procedural right. Inherent in that right is the right to notification of conduct that may adversely affect, in this case, a known treaty right and the right to participate in the decision-making process in some manner depending on the level of the infringement.

A decision that a duty to consult is not trigged means that no notification is necessary. [ 95 ] It appears that in duty to consult cases, the Crown actor makes the decision on whether a duty had been triggered without notice or input from interested parties like Waterhen. That is, those parties potentially affected by Crown conduct do not have notice of or input into the question of whether the duty had been triggered.

To argue that an interested party like Waterhen is entitled to notice that the Minister was considering whether a duty to consult was triggered by the development of the marina would amount to notice and perhaps consultation prior to a determination that a treaty right might be adversely affected.

The constitutional right to consultation does not extend that far. [ 96 ] A dispute on that question is resolved on an application for judicial review. [ 97 ] To then suggest that Waterhen should be given notice by the Agency under administrative common law principles that it was about to consider the application for the Aquatic Permit would provide Waterhen with a procedural right that does not exist under the Rio Tinto constitutional analysis.

In effect it would provide Waterhen with a right of consultation before a determination had been made that a duty to consult had been triggered. [ 98 ] This overlap between the constitutional right to notice and notice under administrative law right to procedural fairness becomes more evident when the grounds advanced for quashing the Aquatic Permit are considered. As the Agency points out the reasons that Waterhen says it should have been given notice of the application for the Aquatic Permit are set out in Waterhen’s Brief of Law at paras. 70 to 80. In

summary, these reasons are that the Agency knew that the right to consultation was a live issue and the decision to grant the Aquatic Permit will affect its treaty rights.

But these are the very issues to be determined in this application under the constitutional tests for the right to consultation set out in Rio Tinto . [ 99 ] To put this argument into the context of the general common law principle set out in Cardinal this would mean that the Agency owed a duty of procedural fairness at some level to Waterhen when considering the application for the Aquatic Permit because issuance of the Aquatic Permit could affect the rights, privileges and interests of Waterhen.

Yet, the only interests that Waterhen advances are its rights to consultation on potential adverse effects on treaty rights which is the very question being considered in determining if Waterhen’s constitutional right have been breached.

In effect Waterhen is asking for a procedural right to protect its treaty rights that does not exist under the Rio Tinto test that has been designed to provide procedural rights. [ 100 ] If Waterhen was asserting the right to healthy and sustainable fish habitat and fish populations without tying that concern to its treaty rights then all users of the Lake including the owners of the commercial developments and sport fishers would have a similar interest and consideration would have to be given to whether any of them had standing by conducting an analysis like that found in P & S Holdings Ltd. v Canada , 2015 FC 1331 , 23 Admin LR (6 th ) 32 , and in the dismissal of the appeal from that decision in P & S Holdings Ltd. v Canada , 2017 FCA 41 , 23 Admin LR (6 th ) 49 .

In the later decision the Federal Court of Appeal pointed out when reviewing the lower court’s decision on standing: [26] In addressing that question, the Judge was entitled to look at the nature and purpose of the statutory scheme. As this Court noted in Irving Shipbuilding [ Irving Shipbuilding Inc. v Canada (Attorney General) , 2009 FCA 116 , [2010] 2 FCR 488 ] (at para. 45), the common law duty of fairness is not free-standing and reviewing courts must therefore examine the scheme according to which the impugned administrative decision is taken.

Having considered the nature and purpose of the regulatory scheme, she could (and she did)

find that the appellants were strangers to that process and therefore not entitled to even a minimum degree of participation. The Judge didnot assess the factors enumerated in Baker [Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999]2 SCR 817], and there was no need for her to do so in light of her conclusion. [101] As is pointed out in this passage the common law duty of fairness is not free standing.

When I look at theconstitutional and statutory scheme that is engaged and consider that the grounds for relief advanced for asserting a common law duty offairness are the same as those advanced in asserting that the constitutional right to consultation was triggered, I cannot conclude thatWaterhen was entitled to notice and in effect the right to be consulted on whether the Aquatic Permit should be issued. [102] The foundation issue is whether notice is required.

The determination that a duty to consult was not triggered andthat no notice to Waterhen was required was based on a finding that no interests were affected.

If it is correct that no interests wereaffected and no notification was necessary under Waterhen’s constitutional rights, then no argument can be made that interests exist thatwould trigger the right to procedural fairness on administrative law grounds. [103] In my view Waterhen’s argument that it has a procedural right to notice on administrative law grounds that theAgency had received and was considering that application for the Aquatic Permit is subsumed in, continues and is brought forward inthe argument that it is entitled to notice on constitutional law grounds.

To consider whether Waterhen had procedural rights in both thedecision to issue the Aquatic Permit and the Work Permit is unnecessary. It would in effect amount to considering the same questiontwice. [104] It also seems logical to say that before a decision by an administrative body can affect the rights of a party, thatthe decision must be final. If, for example, the decision by the Agency to issue the Aquatic Permit was the only decision necessary tomove forward with the marina it would be final and properly subject for review. But that is not the case here.

It was the decision to issuethe Work Permit that made the decision to approve the marina final. [105] When the Agency concluded the fish habitat and populations would not be adversely affected by the marina itremained available to Waterhen, as is evident in this proceeding, to challenge that conclusion employing judicial review and the testsdesigned in the jurisprudence to determine if there has been an adverse affect on a treaty right.

In doing so it may, as it attempts to do inthe other issues it raises, take issue with the evidence considered by the Agency in issuing the Aquatic Permit. [106] The proper and constitutionally endorsed right to notice and participation is through the duty to consult process.A disagreement as to whether that process has been triggered is through an application for judicial review which engages the tests thathave been established in the jurisprudence for determining if a duty has been triggered and the standard of review to be applied in suchapplications. [107] Not giving Waterhen notice that the application for the Aquatic Permit was being considered would be the denialof a procedural right that would be reviewed on a correctness standard. [108] For the reasons set out, it is correct to say that Waterhen did not have a separate and distinct right onadministrative law principles to notice that the Agency would be considering whether or not to approve the Aquatic Permit. [109] In coming to this conclusion I also rely on the analysis employed in determining that the decision to defer to theconclusion of the Minister on whether a duty to consult was triggered was reasonable.

The statutory responsibilities of the Minister andthe Agency and their experience and knowledge were important to performing their statutory responsibilities. The Agency says it wouldabide by whatever decision the Minister made on the question of whether a duty to consult was triggered. When the Agency movedforward with considering the application for the Aquatic Permit it is obvious that it did so without notice to Waterhen.

Unlike thecircumstances when the Agency decided to defer to the decision of the Minister on whether a duty to consult was triggered the decisionto proceed with considering the application for the Aquatic Permit was made knowing that the Minister had reached a conclusion that aduty to consult had not been triggered and no notice to Waterhen was required.

It must be taken that the Agency would also know thatthe decision that a duty to consult had not been triggered was subject to review on an application like the one before me. [110] Considering the record before the Agency and the circumstances that then existed when it proceeded to considerthe application for the Aquatic Permit without notice to Waterhen, and in particular, that the Minister had made a finding that a duty toconsult had not been triggered which in turn meant that Waterhen had no procedural rights to consultation, this decision by the Agencywas correct and reasonable.

And, in any event, it remained that the Agency in performing its statutory mandate might determine that theAquatic Permit might not be approved because it would have a detrimental affect on fish and fish habitat. But that does not equate to anobligation to provide notice to Waterhen of the issues to be decided by the Agency in considering whether or not to approve the AquaticPermit. [111] There remains the question of whether the issuance of the Aquatic Permit was unreasonable.

Quashing the Aquatic Permit for Unreasonableness [112] Some time was spent in the briefs and oral argument dealing with the admissibility of the affidavit filed byWaterhen from a PhD candidate in aquatic ecology [Waterhen Affidavit] in an application for judicial review.

In my view I do not haveto rule on these arguments as, in any event, this evidence does not establish on administrative common law principles that the decision ofthe Agency that fish habitat or populations will not be affected by the marina is unreasonable. [113] In issuing the Aquatic Permit the Agency relied on its own expertise and the Habitat Report.

The broad scope ofresponsibility and jurisdiction given to the Agency in The Water Security Agency Act, SS 2005, c W-8.1 and for the issuance of aquatichabitat permits under The Environmental Management and Protection Act, 2010, SS 2010, c E-10.22 demonstrates and recognizes itsexpertise. The author of the Habitat Report was recognized by the Agency for his expertise. His resume and the Habitat Report

demonstrate that he has the education and experience to provide an opinion on the effect the development of the marina might have on fish populations. [ 114 ] It is inherent in the decision by the Agency that with the mitigating conditions included in the Aquatic Permit that the aquatic habitat in the Lake would be at the same level after the development of the marina as it was before its construction.

If that is the case the construction of the marina could have no impact on fish populations in the Lake and Waterhen’s treaty right to fish could not be adversely affected. [ 115 ] Waterhen challenges the reliability of the Habitat Report which was relied on by the Agency and did so through the evidence found in the Waterhen Affidavit. The focus of Waterhen’s argument is that the Habitat Report was flawed.

The basis for this argument is grounded in a number of principles guiding the acceptance of expert evidence. [ 116 ] The most fundamental principle controlling the acceptance of expert evidence is that the opinion must be based in accepted facts. If the facts underlying the opinion are not accepted the opinion is unreliable and cannot be accepted.

Under the umbrella of this fundamental principle, unreliability can be activated when the expert’s opinion is not based on facts known to the expert by personal observation or investigation or accepted facts established by the research of others or is simply an opinion that cannot be drawn from the facts. [ 117 ] The Waterhen Affidavit starts by pointing to a number of potential impacts resulting from developments that disturb structurally complex habitats found on shorelines and in lake bottoms.

They include “… reductions in aquatic and terrestrial vegetation, removal of coarse woody habitat and impediments on the overall biological productivity and resiliency of an ecosystem”.

The Waterhen Affidavit then goes on to say that developments disturbing lake bottoms and shorelines may affect benthic species (which the affiant defines as invertebrates that inhabit the sediment of a lake) which support a healthy ecosystem and ultimately fish populations. [ 118 ] More specifically, the criticisms of the Habitat Report found in the Waterhen Affidavit, as summarized in Waterhen’s Brief of Law at para. 60, are that: a.

The author of the Habitat Report did not conduct and analyze samples of water and sediment and compare them to historical data for such things as ecological food and nutrient levels and water quality; b. That the channel to be cut into the lake will disrupt natural habitat where benthic vertebrates and minnows eat and spawn saying that the Habitat Report relied on the incorrect premise that fish and other aquatic species do not spawn in this habitat; c.

That the Habitat Report failed to consider the impact that the loss of forage fish, minnows and benthic vertebrates, resulting from the removal of vegetation, would have on the aquatic ecosystem and fish populations; d. That construction of the berms surrounding the marina out of sand will not promote the regrowth of vegetation which is necessary to create a buffer between the land and the Lake; e. That the dredging can lead to the release of harmful chemical and nutrients into the Lake which can be harmful to fish populations. [ 119 ] The

summary of the concerns found in the Waterhen Affidavit as set out in para. 60 of Waterhen’s Brief of Law does not mention other problems mentioned in the Waterhen Affidavit: a. That fish and fish habitat are important to maintaining good water quality; b. That the construction of the marina itself may kill fish; c. That the Short Jaw Cisco is a species at risk in the Lake. [ 120 ] The point of Waterhen’s argument is that the Agency relied on an opinion that is not reliable which in turn leads to the conclusion that the decision to approve the Aquatic Permit was not justified and is therefore unreasonable.

Waterhen does not directly advance the evidence found in the Waterhen Affidavit in support of an argument that the decision by the Minister that a duty to consult was not triggered was unreasonable. [ 121 ] Waterhen also says that issuance of both the Aquatic Permit and the Work Permit were unreasonable because it was done without the preparation of a technical report and the submission of that report to the Minister of the Environment pursuant to The Environmental Assessment Act , SS 1979-80, c E-10.1 .

Underlying this argument is the argument that the development of the marina was a “development” as defined in s. 2(

d) of that Act . This argument was not seriously pursued by Waterhen in written or oral argument but was addressed by the respondents, particularly the Hamlet and the RM, in written and oral argument. I will address it later in these reasons. [ 122 ] In response to the Waterhen Affidavit, the Agency filed an affidavit from its Senior Ecologist [Response Affidavit].

A review of his resume and experience shows that the Agency, as its statutory mandate recognizes, has a very high level of expertise and is familiar with the possible affects that the development of the marina might have on fish habitat and populations. It is clear that the Agency relied on more than just the Habitat Report in approving the Aquatic Permit. [ 123 ] Unlike most of the others who filed affidavits in this proceeding the affiants of the Waterhen Affidavit and the Response Affidavit were not cross-examined on their affidavits.

Nor was application made to cross-examine the author of the Habitat Report. [ 124 ] The Response Affidavit suggests there are a number of flaws in the Waterhen Affidavit. In the Response Affidavit the affiant says:

a. That he is unaware of any scientific literature or study that demonstrates that fish and fish habitat play an important role in maintaining healthy water quality and points out that the Waterhen Affidavit does not cite any scientific authority in support of that proposition; b. That the problems with the timing windows for the construction of the marina identified in the Waterhen Affidavit are premised on the existence of lake trout and sturgeon in the Lake. The Waterhen Affidavit does not reference any study or report suggesting these species inhabit the Lake. The Response Affidavit says that the existence of these species in the Lake has never been documented; c. The

article cited in the Waterhen Affidavit in support of the proposition that fish species in lakes have experienced an increase in water temperatures in the winter season due to climate change does not say as much. The Response Affidavit says that this

article deals with the impact on fish from changes in water levels and points out that the construction of the marina will not affect water levels in the Lake; d. That the assertion in the Waterhen Affidavit that water column temperatures in the Lake have increased is not supported by the Environment Canada Report relied on by the Affiant. The Response Affidavit points out that the report relied on in the Waterhen Affidavit on this point deals only with air temperature increases in the Park and the surrounding area; e.

That there is no listing or registry identifying that the Short Jaw Cisco is a species at risk in the Lake and the affiant of the Response Affidavit says during his 10 year career with the Agency in managing the impacts of developments on species at risk, due diligence has never required verification that a species does not exist in a water body where they have never been documented before; f. That the assertion in the Waterhen Affidavit that sandy conditions are the natural habitat that provide food sources and spawning grounds for many benthic community vertebrates and minnows is not correct.

The affiant of the Response Affidavit says he is unaware of any fish species in Saskatchewan that use sand for feeding or spawning and points out that the literature cited in the Waterhen Affidavit does not support that assertion; g. That the Waterhen Affidavit relied on the flawed premise that the area being excavated had some connectivity to the Lake; h. That there is no scientific support in the literature cited in the Waterhen Affidavit for the assertion that material excavated from a Lake bottom does not promote the regrowth of vegetation and the affiant says his firsthand experience suggests otherwise; i.

That the concerns expressed in the Waterhen Affidavit with shoreline erosion does not take into account the soil chemistry in this location, the volume of soil entering the Lake, the fate of the soil once it enters the Lake, the volume of the Lake and the surface area of the Lake, and that these broad generic concerns fail to identify any actual risks to the Lake from the development of the marina; j.

That the reports relied on in the Waterhen Affidavit in support of the risk of the release of harmful chemicals or nutrients into the Lake resulted from the dredging of sites, were sites that were previously exposed to industrial and commercial activity; k.

That the risks to aquatic life from suspended sediments resulted from dredging and erosion is mitigated by the sediment and erosion control measures that are found in the conditions set out in the Aquatic Permit and because the dredging will largely take place inland and during winter months. [ 125 ] The Agency also points out that the affiant of the Waterhen Affidavit did not collect water or sediment samples and analyze them or compare them to historical or baseline data to confirm or support any of the fears arising from the lack of testing. [ 126 ] The Agency also says that the suggestion in the Waterhen Affidavit that the Short Jaw Cisco is a species at risk in the Lake is not supported by any evidence or studies suggesting that this species of Cisco inhabits the Lake and the suggestion that an investigation should be conducted to see if that is the case hardly raises the risk of an adverse effect to even the level of speculation. [ 127 ] The Agency argues that the Waterhen Affidavit should be given no weight for many of the same reasons that Waterhen challenges the Habitat Report.

I agree. [ 128 ] The Waterhen Affidavit provides opinions based on facts that are not accepted. There is no connection between the Lake and the area to be dredged. There is no evidence that the Short Jaw Cisco, lake trout and sturgeon inhabit the Lake. There is no evidence that the site for the marina was exposed to industrial or commercial or any other activity that would put contaminants that are dangerous to fish and water quality in that area. [ 129 ] It is questionable whether some of the evidence from scientific journals and studies relied on by the Waterhen Affidavit support the opinions found in it.

Examples are the reports and studies relied on in support of the assertions that water temperatures in the Lake have increased, that sandy bottoms are a spawning habitat and that Lake bottom soil will not support the regrowth of vegetation. [ 130 ] On some assertions such as the importance of fish populations to water quality there is no evidence from scientific journals or studies cited in support of the opinions. [ 131 ] It is also unclear as to whether the affiant of the Waterhen Affidavit has a clear understanding of the application of federal and provincial law to this development.

The Waterhen Affidavit relies heavily on the Fisheries Act, RSC 1985, c F-14 but it is not at all clear whether this development engages the application of that federal legislation. In addition, it is pointed out that there are some exceptions under both federal and provincial law allowing for the maintenance and development of a marina such as the one in question and that the prohibitions under this legislation for removing such things as lake bottom vegetation are not absolute. They are subject to regulatory review and approval in appropriate circumstances.

[ 132 ] The shortcomings in the opinions found in the Waterhen Affidavit as noted above put into question the reliability of the whole of the Waterhen Affidavit.

In addition, while the education and expertise of the affiant of the Waterhen Affidavit shows credentials that provide a basis for expressing some of the opinions found in the Waterhen Affidavit, that education and experience pales in comparison to the education and experience detailed in the resumes of the authors of the Habitat Report and the Response Affidavit. [ 133 ] At best, the evidence as to the reliability of the Habitat Report is in conflict and leaves open the question as to whether Waterhen has met the burden of establishing that the issuance of the Aquatic Permit was not justified and thereby unreasonable. [ 134 ] But the better characterization of the Waterhen Affidavit is that it largely misses the point of this inquiry and the onus it places on Waterhen.

The inquiry is whether there is an identifiable real or potential risk to fish populations that are not sufficiently mitigated by the conditions to the Aquatic Permit. The question, to put it in the terms of the inquiry conducted by the Agency, was whether the marina, if constructed, would see fish habitat and fish populations at the same level after the construction as they were before construction. The inquiry does not change when it is posed as a question of whether a duty to consult has been triggered or whether the approval of the Aquatic Permit was unreasonable.

The Waterhen Affidavit does not establish that the risks it identifies are real or potentially risks in this case. [ 135 ] For example, the Waterhen Affidavit suggests that the disturbance of sediments, shoreline erosion and the release of contaminants can degrade the overall lake quality and fish habitat and populations. No doubt this is true. But the Waterhen Affidavit largely fails to identify a credible potential or real risk to fish populations from the development of this marina on this Lake arising from these problems.

It does not take into account the actual composition of the soil being disturbed by the development of the marina and the channel. Nor does it provide any estimate of the volume of soil that might enter the waterbody or opine on where the soil will end up if it enters the Lake. It does not consider the volume and surface area of the Lake in outlining the possible problems that might result from the development of the marina. It does not explain how a 15-meter channel dug into the shoreline of this Lake which has a total shoreline of over 450 kms would affect fish populations.

It does not consider nor conduct a cost benefit analysis of replacing the existing offshore marina found in this Lake (that was regularly dredged and the material from the dredging piled on the shoreline where that channel will enter the Lake and, in the area, where the inshore marina is to be located) with this inshore marina. It does not consider whether the inshore marina would provide additional habitat for aquatic organisms and in turn fish populations. [ 136 ] The Waterhen Affidavit suggests that the construction of the marina itself may kill fish and aquatic habitat.

That this construction will destroy aquatic habitat is a difficult proposition to understand when the marina itself is being constructed on land and the excavation into the Lake of the 15-meter-wide channel will be in a location that has been affected by previous excavation work.

No estimate was made of the time it would take to complete the excavation of the channel, no consideration was given to the time of year that the work would be done or the equipment that would be used and no estimate was provided as to how many fish might be killed much less an opinion how those numbers might adversely affect the fish populations generally. [ 137 ] Nor does the Waterhen Affidavit establish that there is a real or potential risk to water quality generally. [ 138 ] It is the Waterhen Affidavit that is not sufficiently reliable.

It relies on facts that are not established, it provides opinion that are not supported by other scientific research or investigations, it is questionable whether some of the scientific research or reports relied on support the foundation for some of the opinions and is lacking in a thorough analysis. [ 139 ] For the reasons outlined, the expert opinions found in the Waterhen Affidavit do not give me reason to conclude that there may be a risk to fish habitat or populations.

Nor do they call into question the reliability of the Habitat Report. [ 140 ] Considering the circumstance that existed at the time the Aquatic Permit was approved, the expertise of the Agency and of the author of the Habitat Report, the decision by the Agency to grant the Aquatic Permit was not unreasonable.

The evidence found in the Waterhen Affidavit does not meet the burden of unseating that conclusion. [ 141 ] In any event, the question of whether Waterhen’s treaty right to fish might be adversely affected by the construction of the marina can only and is properly analyzed by considering the collective decisions of both the Minister and the Agency on the constitutional law ground of whether a duty to consult had been triggered.

I will move to that analysis after dispensing the argument that the Minister’s decision to grant the Work Permit should be quashed as being unreasonable on administrative common law grounds.

Quashing the Decision of the Minister that No Duty to Consult was Triggered on Administrative Law Grounds [ 142 ] Following a similar theme, I am of the view that administrative common law principles do not provide the proper forum or focus for challenging the decision to grant the Work Permit for the want of notice or consultation. [ 143 ] Waterhen does not challenge the reasonableness of the decision to grant the Work Permit based on the expert evidence contained in the Waterhen Affidavit.

Had it done so I would have concluded that administrative common law principles should not be employed to test the reasonableness of the approval of the Work Permit and I would have denied the application to quash the Work Permit for the same reasons that I would have denied the application to quash the Aquatic Permit.

That is, because I cannot give any weight to the Waterhen Affidavit, there is no evidence to suggest that fish populations and habitat may be affected by the development of the marina. [ 144 ] In any event, the criteria and tests for determining if notice and consultation on Crown conduct or action are required are now well developed in the jurisprudence. The right to notice and consultation is a procedural right. The right turns on the establishment by Waterhen of the three criteria set out in Rio Tinto . In this case the Crown is deemed to be aware of Waterhen’s treaty rights.

It is not disputed that the approval of the marina was Crown conduct. The question in dispute is whether the conduct does or has the potential to adversely affect one or more of Waterhen’s treaty rights. [ 145 ] The decision that a duty to consult was not triggered was a decision by a public authority that may have affected rights of an interested party. But the core question is whether any of Waterhen’s rights were affected which is, as mentioned, the precise

focus of the third Rio Tinto test. Whether Waterhen is entitled to procedural rights will be resolved in favour of Waterhen if it establishes an appreciable or discernable impact on a treaty right and that there is a causal relationship between the conduct and the impact. In effect, Waterhen bears the burden of establishing that the decision that no duty to consult was triggered is incorrect or unreasonable depending on the manner in which the question is framed and standard of review to be applied.

And, again, these are the same issues and questions that will be analyzed when Waterhen’s case is reviewed using the constitutional framework. [ 146 ] I see no useful purpose in concluding that Waterhen is entitled to procedural fairness under administrative law principles much less determining what that level of procedural rights it would be entitled to under Baker, when those are the very questions to be decided under the constitutional rights provided to Waterhen under s. 35 of the Charter as developed by the jurisprudence.

That regime allows for a determination of whether a duty to consult has been triggered without notice to Waterhen that such a decision is pending. [ 147 ] Let me move to the decision by the Minister that the construction of the inland marina would not trigger a duty to consult under each of the treaty rights that Waterhen says will be impacted. Before doing so I will provide some background to and some of the details of that decision.

The Decision that No Duty to Consult was Triggered [ 148 ] Because the land on which the proposed marina is to be constructed is in a provincial park the Minister is statutorily responsible for issuance of the Work Permit, The Parks Act , SS 1986, c P-1.1 , ss 2(1)(

d) and 15(2), and the Parks Regulations , 1991 , RRS c P-1.1, Reg 6 , s 42(3) [ Parks Regulations ]. But because the project also involved disruption to a shoreline and lake bottom the effect the marina would have on aquatic habitat and organisms engaged the statutory mandate of the Agency. It was statutorily responsible for issuance of the Aquatic Permit.

The Water Security Agency Act , SS 2005, c W-8.1 , ss 5 and 6, The Environmental Management and Protection Act , 2010 , SS 2010, c E-10.22 , s 38(4), The Environmental Management and Protection (General) Regulations , RRS c E-10.22 Reg 1 s 6 [ Agency Legislation ]. [ 149 ] Because of these statutory responsibilities, the Park’s manager says that when he was first approached by the Hamlet in July of 2020 about the possibility of constructing the marina he advised the Hamlet that application would have to be made to the Agency for an aquatic habitat protection permit and the project could not be approved without one.

He also acknowledges that during one of his first conversations with the Hamlet’s representative that he was told the Hamlet was retaining a biologist to provide the Habitat Report. [ 150 ] The Park’s manager inspected the proposed site in August of 2020 and completed an initial assessment in June of 2021 on the question of whether a duty to consult had been triggered and prepared a report found at Tab 2 of the Record of Proceedings entitled Pre-Consultation Assessment [Report].

The Report is completed on a form that poses several questions aimed at determining if a duty to consult had been triggered and, if so, the level of consultation. [ 151 ] The views of the Park’s manager as expressed in the Report were that the proposed project: a. Was not on unoccupied Crown land, occupied Crown land or public water bodies to which Metis or First Nations had a right-of- access to exercise Rights and Traditional Uses. In describing the land in relation to this view the Report says: The location is within Meadow Lake Provincial Park adjacent to an existing subdivision (Hamlet of South Waterhen).

The area is not currently accessed by First Nations or Metis for traditional use because of the adjacent infrastructure. The area is located next to an existing cottage subdivision and is surrounded by other park infrastructure: M&N Resor

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