PEGUIS FIRST NATION Applicant v. THE ATTORNEY GENERAL OF CANADA AND MANITOBA HYDRO, 2021 FC 990

Date: 20210924 Dockets: T-1147-19 T-1141-19 T-1150-19 T-1442-19 Citation: 2021 FC 990 Ottawa, Ontario, September 24, 2021 PRESENT: The Honourable Madam Justice McVeigh Docket: T-1147-19 BETWEEN: PEGUIS FIRST NATION Applicant and THE ATTORNEY GENERAL OF CANADA AND MANITOBA HYDRO Respondents and CANADIAN ENERGY REGULATOR Intervener Docket: T-1141-19 AND BETWEEN: ROSEAU RIVER ANISHINABE FIRST NATION Applicant and THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO Respondents Docket: T-1150-19 AND BETWEEN: LONG PLAIN FIRST NATION Applicant and THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO Respondents Docket: T-1442-19 AND BETWEEN: CHIEF JIM MAJOR ON HIS OWN BEHALF AND ON BEHALF OF ANIMAKEE WA ZHING #37 FIRST NATION Applicant and THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO Respondents JUDGMENT AND REASONS Table of contents I.

Introduction 4 II. Background 5 A. The Project 5 B. Project Approval Process and Consultation 6

(1) Phase 1 - the Provincial Approval Process and Consultation 7

(2) Phase 2 - NEB Hearing 8

(3) Phase 3 - Supplemental Consultation 10 C. Consultation with Peguis First Nation (T-1147-19) 12 D. Consultation with Animakee Wa Zhing (T-1142-19) 17 E. Consultation with Roseau River First Nation (T-1141-19) and Long Plain First Nation (T-1150-19) 20 III. Decision under review 24

IV. Issues 25 A. Preliminary Issues 25 B. Issues 25 V. Standard of Review 26 VI. Analysis 27 A. Preliminary Issue – Admissibility of Affidavit Evidence 27

(1) Hydro and Canada’s Submissions 27

(2) Analysis 28 B. General Legal Principles regarding the duty to consult 32 C. Issue 1: In T-1141-19 (AWZ), T-1141-19 (Roseau River), T-1150-19 (Long Plain), did Canada properly assess the scope of its duty to consult and accommodate the First Nations? 38

(1) AWZ’s submissions 38 i. Moose 39 ii. Use and Enjoyment of the Land (LOTW Water levels) 39

(2) Roseau River’s and Long Plain’s submissions 40

(3) Analysis – AWZ, Long Plain, and Roseau River 41 D. Issue 2 - Constitutional law: Was it reasonable for the GIC to conclude that Canada’s consultation with Peguis, AWZ, Roseau River, and Long Plain was adequate? 44

(1) T-1147-19 – Peguis 44 i. Peguis’ Submissions 44 ii. Canada’s position 45 iii. Analysis 46

(2) T-1442-19 – AWZ 51 i. AWZ’s Submissions 51 ii. AWZ-Analysis 53

a) Moose 53

b) Water Levels on LOTW 58

c) Economic Accommodation 61

(3) T-1141-19 Long Plain and T-1150-19 Roseau River 63 i. Long Plain’s and Roseau River’s Submissions 63 ii. Analysis 66

a) Consultation Too Late 66

b) TLE 68

c) The GIC’s reasons 71

d) Accommodation 71 E. Issue 3 – Administrative law: Was the GIC’s decision reasonable? 74

(1) Peguis’ Submissions 74

(2) Long Plain’s and Roseau River’s Submissions 76

(3) Analysis 77

F.

Summary 82 VII. Remedy 82

(1) Quash the Decision 84

(2) No Remedy 84

(3) Order Further Consultation 85

(4) Declaration 86 VIII. Costs 89 I. Introduction [ 1 ] This is an application for judicial review of Order in Council [OIC] PC Number 2019 – 0784 issued by the Governor in Council [GIC] on June 13, 2019. The OIC directed the National Energy Board [NEB] to issue a Certificate of Public Necessity and Convenience [Certificate] for the Manitoba-Minnesota Pipeline Project [MMTP or the Project].

The Project has now been built and in operation since approximately July 2020. [ 2 ] The Applicants are Peguis First Nation [Peguis] (T-1147-19), Animakee Wa Zhing #37 [AWZ] (T-1442-19), Long Plain First Nation [Long Plain] (T-1150-19), and Roseau River First Nation [Roseau River] (T-1141-19). The Applicants are all " “Bands” " within the meaning of the Indian Act , RSC 1985 c. I-5 , and their members Aboriginal peoples pursuant to s. 35(1) of the Constitution Act, 1985 . Peguis, Roseau River, and Long Plain are signatories to Treaty 1. AWZ is signatory to Treaty 3.

The Applicants are each challenging the adequacy of Canada’s consultation for the Project and the reasonableness of the GIC’s decision. [ 3 ] The Respondents are the Attorney General of Canada [Canada] and Manitoba Hydro [Hydro], the Project’s proponent [proponent]. The Canada Energy Regulator [CER] is intervening in this application. The CER is the successor to the NEB, and appears in order to assist the Court as to the role of the NEB in the consultation process, but takes no position on the merits of the judicial review applications. [ 4 ] Each of these applications are separate but were heard together.

Given that they all relate to the same project, I am writing a consolidated decision. II. Background A. The Project [ 5 ] The MMTP is an international transmission line operated by Hydro. It runs from Winnipeg to the Manitoba/Minnesota border, crossing Treaty 1 territory. The purpose of the MMTP is to deliver energy to Manitoba and surplus energy to Minnesota. The MMTP is 213 kilometers long, with 92 of those kilometers running on existing rights of way while 92 kilometers is on new right of way. Of those 92 kilometers, 85 are on privately held land and 36 kilometers are on provincial Crown land.

Construction on the Project began in September 2019, and was completed in July 2020. The MMTP is currently in service and operating. B. Project Approval Process and Consultation [ 6 ] To proceed, the Project needed to be approved by both Manitoba and Canada. Hydro was required to get a provincial licence pursuant to Manitoba’s The Environment Act , CCSM c E125 [ Environment Act ] and federal approval under both the National Energy Board Act , RSC 1985, c N-7 [ NEB Act ] and the Canadian Environmental Assessment Act, 2012 , SC 2012, c 19, s 52 [ CEAA ]. [ 7 ] The federal and provincial processes were coordinated.

In 2013, Hydro began its environmental assessment process, including its First Nation Engagement Process [FNMEP], and in 2015 it completed its Environmental Impact Statement [EIS]. Hydro engaged with a large number of affected and possibly affected First Nations during its environmental assessment process in order to collect and listen to First Nations input and feedback. [ 8 ] From Canada’s perspective, consultation took place in three phases, following a similar process to other energy project approvals.

Canada identifies the first phase as the provincial approval process, including the Clean Energy Commission [CEC] hearings and Manitoba’s separate Crown consultation. The second phase was the NEB hearing and the third phase was Canada’s supplementary consultation.

(1) Phase 1 - the Provincial Approval Process and Consultation [ 9 ] Manitoba’s approval process consisted of three parts: an environmental assessment, CEC hearings, and Provincial Crown-Indigenous consultation. [ 10 ] Hydro submitted the EIS to Manitoba on September 22, 2015. On October 3, 2016, Manitoba wrote to the CEC advising that it had completed the environmental assessment process and that any concerns with the Project could be addressed using licensing conditions.

[ 11 ] On December 31, 2015, Manitoba wrote to the CEC asking it to hold hearings on the Project and providing terms of reference for the public review hearings. The terms of reference (revised on February 15, 2017) required the CEC to consider the Project-related impacts to Indigenous groups, per

section 5 of the CEAA but noted that Manitoba would conduct consultation separately from the CEC process. The CEC process consisted of pre-hearing meetings, workshops, information requests, and 18 days of hearings. The CEC submitted its final report on September 12, 2017, recommending that the Project be approved subject to 17 licensing conditions. [ 12 ] Manitoba conducted consultations with a number of Indigenous groups separately from the CEC process. The details of that consultation process are not on the record and the adequacy of Manitoba’s consultation is not an issue on this judicial review. [ 13 ] Manitoba granted an Environmental Act licence, with 64 conditions, on April 4, 2019.

(2) Phase 2 - NEB Hearing [ 14 ] Pursuant to sections 45(1) and 58.11 of the NEB Act, Hydro filed a permit application with the NEB on December 16, 2016. [ 15 ] On June 13, 2017, the NEB sent letters to 25 Indigenous communities and organizations that the NEB identified as being potentially affected by the Project. The letters advised the Indigenous groups about the permit process and invited them to participate in the process, noting that participant funding is available. [ 16 ] On October 31, 2017, the NEB recommended to the GIC that the NEB proceed through the certificate process set out in

section 58.16 of the NEB Act , instead of the permit process in

section 58.11 of the NEB Act . The NEB reasons indicate that it made this recommendation for two reasons. First, because the CEC concluded that it did not need to assess whether the Project’s effects might impact the exercise of Aboriginal or Treaty rights.

Second, because of the Supreme Court of Canada’s [SCC] two decisions in Clyde River (Hamlet) v Petroleum Geo-Services Inc , 2017 SCC 40 [ Clyde River ] and Chippewas of the Thames First Nation v Enbridge Pipelines Inc , 2017 SCC 41 [ Chippewas ], which provided guidance on the NEB’s duties in Indigenous consultation. [ 17 ] On December 15, 2017, the GIC accepted the NEB’s recommendation, ordering the NEB to proceed via the certificate process. [ 18 ] On December 21, 2017, the NEB released Hearing Order EH-001-2017 [Hearing Order].

The Hearing Order contained the list of issues to be addressed through the NEB hearing. It also incorporated the record of the CEC hearings and the CEC Reasons into the NEB record. The Hearing Order stated that all parties that applied to participate in the permit process were granted pre-decided standing for the Hearing. The Hearing Order also noted that interested parties could apply to participate in the Hearing. [ 19 ] On February 14, 2018, the NEB released Ruling No. 4 [the Ruling].

This Ruling specified: the NEB’s role in satisfying the duty to consult; clarified the scope of issues to be considered by the NEB; and listed the successful applications to participate. The Ruling states that the eight parties who registered to participate in the permit process were granted pre-decided standing. Further, that NEB accepted all twelve applications to participate as an Intervener. [ 20 ] On March 20, 2018, the Minister of Natural Resources advised the NEB that Canada would be relying on the NEB process to fulfill Canada’s duty to consult.

Canada’s intent to rely on the NEB process was communicated to the Applicants in April and May of 2018. [ 21 ] Throughout the spring of 2018, parties exchanged information requests. The NEB also sought the Interveners’ comments on the CEC Reasons, draft conditions and potential mitigation measures. Some of the participants (including some of the Applicants in these applications) sought to compel answers to information requests of Hydro, and when that motion was denied by the NEB, sought a variance of the NEB decision. [ 22 ] The NEB Hearing took place in June 2018.

Some of the Indigenous interveners gave oral traditional evidence in person from June 4 to 8, 2018. Later in the month, from June 18 to 22, 2018 oral submissions, cross-examination of Hydro’s representations, and final argument took place. [ 23 ] The NEB Reasons for Decision [NEB Reasons] were released on November 15, 2018. The NEB concluded that the Project is and will be required for the present and future public convenience and necessity. The NEB recommended that the GIC issue a Certificate, subject to 28 conditions.

(3) Phase 3 - Supplemental Consultation [ 24 ] By letter dated August 14, 2018, Canada notified potentially effected Indigenous groups that it would conduct supplemental consultations. The purpose of the supplementary consultation was to identify any outstanding concerns regarding Project-related impacts to Aboriginal and Treaty rights that were not communicated to the NEB or not addressed by the NEB, and to discuss incremental accommodation measures if appropriate.

The letter initiating supplemental consultation offered First Nations participant funding (between $5,000-$9,000) to those groups who wished to participate in supplemental consultation. [ 25 ] A number of attachments were included with the August 14, 2018 letter that went to all of the First Nations. Included was the Project Agreement for the MMTP, which guided the coordination of consultation as between various federal agencies. Also attached was a document titled " “Summary of Information Available and Preliminary Depth of Consultation Assessment” " [DCA] for each First Nation.

This document summarized the Aboriginal and Treaty rights, potential project impacts on those rights, and Canada’s preliminary assessment of the depth of consultation owed to each First Nation. Finally, an application for participant funding for supplemental consultation and a funding eligibility criteria document was provided.

[ 26 ] Canada’s evidence is that supplemental consultation took place with twelve Indigenous groups between August 2018 and June 2019. Pursuant to

section 58.16(10) of the NEB Act , the GIC must decide whether to approve or not to approve the NEB’s recommendation and to issue a Certificate within three months of the release of the NEB’s Reasons. In this case, the NEB released its Reasons on November 15, 2018 and the original GIC’s deadline for decision was February 15, 2019. However, that deadline was extended twice through OIC, first to May 16, 2019 and then to June 14, 2019. [ 27 ] On March 22, 2019, Canada sent a draft annex of the Crown Consultation and Accommodation Report [CCAR] specific to each First Nation for their review and comment.

The covering letter to the draft CCAR invited the First Nations to provide written submissions directly addressing any outstanding concerns, issues or other views regarding the Project. The Indigenous groups were given until April 23, 2019 to provide feedback. [ 28 ] On May 16, 2019, Canada sent a letter to the Indigenous groups they were consulting with indicating that Canada was prepared to propose amendments to the NEB Conditions after receiving the Indigenous groups’ feedback. Additionally, the letter stated that Canada intended to share the text of the draft conditions.

Finally, as a response to concerns identified, Canada indicated that it was proposing a Terrestrial and Cultural Studies Initiative [TCSI] to fund Indigenous-led studies. [ 29 ] On June 3, 2019, Canada again wrote to the Indigenous groups they were consulting with indicating that consultation had ended. Canada attached a copy of the final CCAR and the First Nation-specific annex as well as the proposed amendments to the NEB’s conditions. [ 30 ] On June 13, 2019, the GIC issued the OIC, directing the NEB to issue a Certificate, subject to amendments to the NEB conditions.

On June 14, 2019 Canada advised the Applicants of the GIC’s decision. [ 31 ] I will now summarize the details of consultation with each of the Applicant First Nations. C. Consultation with Peguis First Nation (T-1147-19) [ 32 ] Peguis first became involved in the Project in 2013 as part of Hydro’s FNMEP. As part of Hydro’s engagement, Peguis produced an Aboriginal Traditional Knowledge Study [ATKS]. Peguis also participated in Hydro’s MMTP Monitoring Committee [MMTPMC].

The MMTPMC is composed of representatives from impacted First Nations and Hydro that meets regularly in order to provide updates and share feedback about the Project. [ 33 ] Peguis participated in the CEC hearings and was granted Intervener status for the NEB proceedings. As an Intervener, Peguis submitted and responded to information requests, cross-examined Hydro’s panel of witnesses, commented on the NEB’s draft conditions, and provided oral traditional evidence and written submissions. [ 34 ] Canada wrote to Peguis on August 14, 2018, inviting them to participate in supplemental consultation.

In its preliminary DCA, Canada indicated that it owed Peguis a moderate level of consultation. Canada offered Peguis $9,000 in participant funding. [ 35 ] The DCA was done unilaterally by Canada, but Canada’s evidence is that it was a preliminary assessment and could change during the consultation process. [ 36 ] Peguis responded to Canada’s August 14, 2018 letter, submitting a participant funding application on September 12, 2018 for approximately $77,000. This included an application for funding an archeological study that it felt was necessary.

Canada did not approve the application and between September and November 2018, representatives from Canada and Peguis discussed funding through email and meetings. On November 14, 2018, Peguis resubmitted its funding application, which had been put on hold because of the amount requested. On December 12, 2018, the parties participated in a teleconference where they discussed the activities eligible for participant funding.

On December 19, 2018, Canada wrote to Peguis that it had increased the available funding from the initial offering of $9,000 to $27,000 and invited Peguis to submit a funding application form for that amount. On February 8, 2019, Peguis submitted a participant funding application for $28,000 which was $1,000 more than the offering. [ 37 ] On February 19, 2019, the parties participated in a teleconference where they discussed activities eligible for participant funding, particularly funding for an archeological study.

The conclusion in the minutes from the meeting show that Canada’s representative, Sebastian Labelle, indicated that " “what Peguis was proposing in its revised application for participant funding sounded relatively reasonable.” " However, " “he clarified that further due diligence was required prior to making a decision,” " and " “added that he would discuss the proposal with Assistant Deputy Minister Labonté and would respond to Peguis shortly thereafter.” " [ 38 ] Canada followed up the February 19, 2019 meeting by letter dated March 8, 2019.

Canada responded to the study request by indicating that it would not fund studies that have already been undertaken by the proponent or Indigenous groups. Canada’s understanding was that the proposed archeological study had already been conducted, at least in part, through the ATKS Peguis developed as part of its engagement with Hydro. Canada reiterated its offer of $27,000 for eligible activities. [ 39 ] On March 5, 2019, Peguis inquired with Canada whether it would have to resubmit its funding application, and on March 13, 2019, Canada confirmed that they would.

On March 22, 2019, Peguis resubmitted the funding application for $27,010.72. [ 40 ] On the same day, March 22, 2019, Canada sent the draft Peguis-specific annex of the CCAR to Peguis for review. In their letter, Canada noted that if Peguis provided comments by April 8, 2019, Canada could incorporate them and provide Peguis with the updated CCAR for review. The letter indicated that the deadline for providing comments is April 23, 2019. The letter also expressed that Canada’s representatives were available to meet and that Peguis could provide independent written submissions.

[ 41 ] On April 10, 2019, a representative from Canada emailed Peguis inquiring about whether they intended to

schedule community meetings. Peguis responded the same day, noting that they could not

schedule meetings until the funding application had been approved. At the hearing, Peguis indicated that this position was based on the funding application, which stated that " “ [i]f you are successful in receiving funding, you cannot request payment for any work done before you sign a Contribution Agreement with us and only work done after you sign an agreement with us is eligible for payment ” " (emphasis added). [ 42 ] On April 12, 2019, Canada wrote to Peguis that their funding application had been approved but for a slightly lesser amount of $26,960.72.

The approval indicated that the next step was to sign a contribution agreement. The funding agreement was signed by all parties by April 29, 2019. [ 43 ] On April 13 and 26, 2019, representatives from Canada followed up with Peguis about scheduling community meetings. The April 26, 2019 communication noted that given that the legislated deadline for the GIC’s decision was May 16, 2019, meetings would have to occur by May 3, 2019. Peguis understood they now had one week (until May 3, 2019) to hold the meetings.

Their evidence is that one week was too short of a turnaround to do this given their reserve composition. [ 44 ] No community meetings were scheduled. The next communication between the parties on the record is a May 17, 2019 letter from Canada. This letter states that the GIC’s decision had been extended until June 14, 2019, that Canada was considering amending the NEB’s conditions, and that Canada would be developing a TCSI. On June 3, 2019, Canada wrote to a very surprised Peguis indicating that consultation had ended, and that Canada would be amending some of the NEB’s conditions.

With that correspondence, Canada attached a final copy of the CCAR and the Peguis-specific annex. [ 45 ] On June 5, 2019, Mr. Sutherland on behalf of Peguis wrote to Canada noting that a decision should not be made when the consultation with Peguis has not yet occurred. Peguis noted that they would be writing to request an extension for the decision. The extension request letter, dated June 6, 2019, was sent to Canada on July 11, 2019, almost a month after the GIC decision was made on June 13, 2019.

No further response was received by Peguis in relation to their request for an extension. [ 46 ] On September 6, 2019, Canada responded to Peguis’ letter, inviting them to submit any expenses for reimbursement and apply for funding through the TCSI. D. Consultation with Animakee Wa Zhing (T-1142-19) [ 47 ] AWZ’s traditional territory is located in Manitoba, Minnesota and Ontario. AWZ has used its territory to harvest wild rice, trap, hunt, and gather medicines.

AWZ is a signatory to Treaty 3 and has over 400 registered members and 11 reserves in Ontario and southeastern Manitoba. [ 48 ] Members of AWZ primarily reside at Windigo Island on Lake of the Woods [LOTW] and Regina Bay. Water levels on LOTW have historically fluctuated based on human development, and the resultant flooding has negatively impacted AWZ’s reserve land and their ability to harvest wild rice.

LOTW water levels are controlled by the Lake of the Woods Control Board [LOTWCB]. [ 49 ] Hydro did not identify AWZ as a potentially affected Indigenous group and therefore did not include AWZ in its FNMEP from 2013 to 2016. While AWZ asserts that they were first informed of the Project in 2017, Canada notes that AWZ received a letter from Manitoba about the Project in January 2016. Regardless, the NEB identified AWZ as a potentially affected group and directed Hydro to engage with AWZ.

AWZ’s active involvement began in June of 2017 after receiving letters from both the NEB and Hydro. [ 50 ] AWZ met with Hydro representatives and participated in Hydro’s MMTPMC. Hydro also provided funding to AWZ (together with another First Nation) to conduct a traditional knowledge study. AWZ received a draft copy of that study in April of 2018. While there were discussions about conducting further study, no further study was conducted. [ 51 ] AWZ was granted Intervener status for the NEB hearings.

As an Intervener, AWZ made information requests of Hydro, brought motions to compel responses from Hydro and to review NEB rulings, filed affidavits, cross-examined Hydro’s panel of witnesses, commented on the NEB’s draft conditions and providing oral evidence and written submissions. [ 52 ] Canada wrote to AWZ on August 14, 2018, inviting them to participate in supplemental consultation. In the letter, Canada included a DCA, which concluded that it owed AWZ a moderate level of consultation. Canada also offered AWZ $9,000 in participant funding. [ 53 ] Officials from the MPMO met with AWZ on January 24, 2019.

At that meeting, they discussed AWZ’s outstanding concerns and potential accommodation measures. AWZ raised concerns about the Project’s impact on moose and the possibility of developing a Moose and Moose Habitat Management Plan [MMHMP]. They also discussed concerns about the Project’s impact on LOTW and funding for an advisor to attend and advocate at LOTW Control Board [LOTWCB] meetings.

Additionally, there was discussion about the Project’s impact on plants, the psycho-social impact of electromagnetic fields [EMF] and economic accommodation. [ 54 ] On February 11, 2019, MPMO invited AWZ to a February 21, 2019 meeting with the LOTWCB already scheduled with another First Nation, and MPMO sent an agenda of the meeting on February 20, 2019. AWZ did not attend the meeting because of the short notice and lack of funding for travel. [ 55 ] On April 12, 2019, Canada offered AWZ an additional $14,500 in participant funding.

Around this time, AWZ held elections, and the transition in governance interrupted their ability to engage with Canada. [ 56 ] On March 22, 2019, Canada sent AWZ a draft of the CCAR and an AWZ-specific annex and requested feedback and written submissions. AWZ responded on May 3, 2019, requesting further engagement with Canada, and on May 17, 2019, expressing concerns with the consultation process and outlining their outstanding concerns.

[ 57 ] On May 9, 2019, AWZ and MPMO met again.

They discussed water levels on LOTW, protecting moose habitat, capacity funding for AWZ to engage with Hydro, and economic accommodation. [ 58 ] On June 3, 2019, Canada wrote to AWZ advising that the consultation had concluded and attaching the final CCAR and AWZ- specific annex and providing a copy of the proposed amendments to the NEB conditions. [ 59 ] On July 24, 2019, after the Project had been approved, Canada wrote to AWZ inquiring about its interest in the TCSI through the program, AWZ applied for and received funding to complete a traditional knowledge study and develop a MMHMP. E.

Consultation with Roseau River First Nation (T-1141-19) and Long Plain First Nation (T-1150-19) [ 60 ] Roseau River is a signatory to Treaty 1 and their traditional territory is located within Manitoba. Roseau River’s reserves are located in southern Manitoba and they have a population of about 2,600 people. [ 61 ] Roseau River has outstanding Treat Land Entitlement [TLE] interests in southern Manitoba. On March 27, 1996, Roseau River signed a TLE Settlement Agreement [TLESA] with Canada. [ 62 ] Long Plain is also a signatory to Treaty 1 and their traditional territory is located within Manitoba.

Long Plain has reserves near Portage La Prairie, Manitoba and a population of about 4,400 people. [ 63 ] Similar to Roseau River, Long Plain has outstanding TLE interests in southern Manitoba. On August 3, 1994, Long Plain signed a TLE Settlement Agreement with Canada. [ 64 ] Long Plain was identified by Hydro as a Treaty 1 First Nation potentially affected by the Project. Long Plain participated in the project through Hydro’s FNMEP since 2013.

Long Plain, through the Aboriginal Traditional Knowledge Study [ATKS] Management Team – a group of three potentially affected First Nations – produced an ATKS Report in 2015. This report was meant to inform the Project’s route selection and the EIS. [ 65 ] Roseau River was identified by Hydro as a Treaty 1 First Nation potentially affected by the Project. Roseau River participated in Hydro’s FNMEP since 2013.

Roseau River produced its own ATK Report. [ 66 ] These two First Nations were represented by the same counsel, who provided mirrored arguments save the specific facts of each First Nation. [ 67 ] In a June 13, 2017 letter, the NEB informed Long Plain about the hearing and invited Long Plain to participate, including noting that participant funding would be available. In an April 29, 2018 letter to Chief Meeches, Long Plain’s Chief, Canada informed Long Plain that it intended to rely on the NEB’s process in order to satisfy its duty to consult.

However, citing funding concerns, Long Plain did not participate as an intervener in the NEB process. [ 68 ] Canada submits that Long Plain’s interests were nevertheless represented at the NEB hearings through the EIS, the CEC Record, and through the Southern Chiefs Organization [SCO], an independent political organization representing Treaty 1 and 3 First Nations. [ 69 ] Roseau River applied and was granted Intervener status for the NEB proceeding.

As an Intervener, Roseau River made information requests of Hydro, brought motions to compel responses from Hydro and to review NEB ruling refusing that motion, and was provided the NEB’s draft conditions for comment. Canada also submits that Roseau River’s interests were presented through the incorporation of the CEC record, and SCO’s involvement. [ 70 ] In their August 14, 2018 letter inviting Long Plain and Roseau River to participate in supplementary consultation, Canada included a DCA indicating that it owed Roseau River a moderate level of consultation and Long Plain a low level of consultation.

Canada offered Long Plain $5,000 in participant funding and Roseau River $9,000. [ 71 ] Long Plain’s and Roseau River’s experience overlap between November 2018 and January 2019 through their participation in the Treaty 1 Technical Team. In November 2018, Long Plain and Roseau River were one of six First Nations who formed the Treaty One Technical Team [TOTT]. During a November 16, 2018 call with the MPMO, these Indigenous groups advised Canada that they were intending to create the TOTT to engage in supplemental consultation.

During a November 28, 2018 conference call, the TOTT advised that it intended to incorporate. [ 72 ] Between December 2018 and January 2019, Canada and the TOTT discussed the details of funding and the legalities of consulting with a corporation, Anishinabe Nations Construction Inc. [ANCI]. It was the First Nations’ position that ANCI would play a financial and administrative role, but that each First Nation would be responsible for carrying out its consultation obligations.

Canada’s position was that in order for it to provide funding to a corporation for consultation activities, the constituent First Nations had to provide band council resolutions confirming that that they had delegated their duty to consult to the corporation. The First Nations’ response was that they could not legally delegate their constitutional rights and therefore they could not provide the requested band council resolutions.

Ultimately, Long Plain and Roseau River submitted independent funding applications in February 2019 and funding amounts were settled in April 2019. [ 73 ] On March 22, 2019, Canada sent a draft of the CCAR and Long Plain-specific annex and Roseau-specific annex to the respective First Nations. Canada requested Long Plain’s and Roseau River’s comments and feedback and invited the First Nations to provide written submissions.

Both Long Plain and Roseau River submitted independent submissions, on May 15 and 14, 2019, respectively. [ 74 ] Around the same time, both First Nations initiated communications with Canada regarding TLE selections on land near or

overlapping with the Project’s proposed right of way. On April 6, 2019, Long Plain sent a letter to the Minister of Crown-Indigenous Relations [MCIR regarding land identified by Long Plain for TLE. On April 30, 2019, Long Plain sent this same letter to the Minister of Natural Resources Canada. On May 1, 2019, Long Plain again wrote the Minister of Natural Resources Canada and Manitoba to raise Long Plain’s identification of land for TLE purposes. [ 75 ] On May 1, 2019, Roseau River inquired with Indigenous Services Canada [ISC] about the availability of land located along the Project route for TLE purposes.

On May 23, 2019, ISC replied to Long Plain’s TLE inquiry and noted that the selected land was not for sale and that TLE acquisitions are made on a willing seller/buyer basis. [ 76 ] On April 18, 2019, MPMO staff met with Roseau River leadership and TLE concerns were discussed. On May 2, 2019, MPMO staff met with Long Plain.

At the meetings, the parties discussed funding, TLE, Manitoba’s conduct in approving the Project, and the adequacy of provincial and federal Crown consultation. [ 77 ] On May 2, 2019, MPMO staff also met with Roseau River and two other First Nations, and they discussed the adequacy of consultation with Manitoba and Canada, Canada’s accommodation mandate, TLE, compensation and economic participation. [ 78 ] On May 16, 2019, MPMO wrote to Roseau River indicating that the GIC’s decision had been extended to June 14, 2019 and that Canada was considering amending the NEB’s condition and introducing the TCSI Roseau River responded on May 24, 2019, requesting further dialogue and expressing optimism about the potential accommodation measures. [ 79 ] There was no further communication between Canada and Long Plain or Roseau River until June 3, 2019, when Canada wrote to Long Plain and Roseau River advising that the consultation had concluded and attaching the final CCAR and Long Plain and Roseau River-specific annexes, and providing a copy of the proposed amendments to the NEB conditions.

III. Decision under review [ 80 ] The decision under review is the GIC’s June 13, 2019 OIC, attached as Annex A to these Reasons. IV. Issues A. Preliminary Issues [ 81 ] The Respondent Hydro raises as a preliminary issue the admissibility of affidavit evidence and the cross-examinations in this judicial review. Canada also raises concerns about the admissibility of certain portions of the affiant’s evidence as hearsay, opinion, or argument. B. Issues [ 82 ] These applications raise four substantive issues: 1 .

In T-1141-19 (AWZ), T-1141-19 (Roseau River), T-1150-19 (Long Plain), did Canada properly assess the scope of its duty to consult and accommodate the First Nations? 2 . As a matter of constitutional law was it reasonable for the GIC to conclude that Canada’s consultation with Peguis, AWZ, Roseau River, and Long Plain was adequate? 3 . As a matter of administrative law, was the GIC’s decision reasonable? 4 . What is the appropriate remedy? V. Standard of Review [ 83 ] The parties do not dispute that the standard of review for whether there is a duty to consult, and the depth of consultation, is correctness.

The standard of review for whether consultation and the OIC was reasonable is reasonableness ( Coldwater First Nation v Canada , 2020 FCA 34 at para 27 [ Coldwater ]). [ 84 ] The Court in Coldwater also provided guidance on how to conduct reasonableness review in this context. The Court noted: [28] In conducting this review, it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning the Governor in Council’s decision. In many ways, that is what the applicants invite us to do.

But this would amount to what has now been recognized as disguised correctness review, an impermissible approach… [29] Rather, our focus must be on the reasonableness of the Governor in Council’s decision, including the outcome reached and the justification for it. The issue is not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better.

The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review.

[ 85 ] In that case, the Court, instructed that: the statutory scheme; the law regarding the duty to consult; post-approval consultation; and the importance of the matter to those directly affected, are the factors relevant to determining whether the decision was reasonable. VI. Analysis A. Preliminary Issue – Admissibility of Affidavit Evidence

(1) Hydro and Canada’s Submissions [ 86 ] Hydro submits that a judicial review should be decided based upon the record before the decision-maker. In this case, the record is the material before the NEB and the GIC, including the CEC record.

This record includes the EIS, traditional knowledge studies, transcripts from the CEC hearings, the exhibits filed at both the NEB and the CEC hearings, the Information Requests that the NEB and the NEB participants made of Hydro and Hydro’s responses, and documents generated during supplemental consultation. [ 87 ] Hydro submits that the Record is found in the Affidavit of Sebastian Labelle (Canada’s affiant) affirmed January 7, 2020 [Labelle Affidavit].

Hydro states that to the extent that the Applicants point to their own affidavits without an established basis in the Record, the evidence should be rejected. [ 88 ] Hydro’s position is that the cross-examinations should be inadmissible because they do not have a basis in the Record, and their use is limited to clarifying what was in or out of the Record. Hydro stated in their Memorandum of Fact and Law at paragraph 27: In addition, the cross-examinations too are inadmissible without a clear foundation in the Record. But more so, the cross-examinations should be for clarifying what was in or out of the Record.

It is not the time to test people’s views on consultation. It is not the time to get more facts about certain events on the Record. According to Hydro, the purpose of cross-examinations is not to test people’s views on consultation. [ 89 ] Canada objects because portions of the Applicants’ affidavits include content that is hearsay, opinion, and argument and therefore offend Rule 81 of the Federal Courts Rules , SOR-98/106 [ Federal Courts Rules ]. Rule 81 provides that affidavits are confined to facts within the deponent’s knowledge. Canada submits that this content is inadmissible and cannot be considered.

(2) Analysis [ 90 ] I agree with Hydro that the evidence on judicial review is the information that was before the decision-maker ( Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 [ Association of Universities ] at para 19 ). Evidence not before the decision-maker which goes to the merits of the decision is not admissible on judicial review. Typically, the " “record before a decision maker” " is provided in the form of the Certified Tribunal Record [CTR], from the tribunal whose decision is under review.

In this case, Canada claimed cabinet confidence over the material before the GIC, and no party has challenged that claim. Therefore, all the evidence is provided through the affiants, in particular through the Labelle Affidavit, but also through the Applicants’ affiants. In my view, there is no basis for Hydro’s submission that the Labelle Affidavit constitutes " “the record” " while the information provided in the Applicants’ affidavits does not.

That statement is not without a caveat. [ 91 ] As Justice Stratas stated in Association of Universities at paragraph 20 , there are recognized exceptions to the rule that the only admissible evidence is the record before the decision-maker. First, the Court can receive affidavit evidence that provides background on issues relevant to the judicial review. Second, affidavits may be necessary to demonstrate procedural defects that cannot be found in the record before the decision-maker.

Third, sometimes affidavit evidence is necessary in order to highlight the absence of evidence on particular point before the decision-maker. [ 92 ] While Hydro submits that the Applicants provide evidence that is not in the Record, they do not point to any specifics. Absent these specifics, in my judgment the Court should not ignore or disregard the affiants’ evidence.

As the Federal Court Appeal [FCA] stated in Tsleil-Waututh Nation v Canada (Attorney General) , 2017 FCA 128 at paragraph 13 , " “a fuller and more accurate record will promote the proper determination of the applications on their merits.” " [ 93 ] In my opinion, much of the content of the Applicants’ affidavits overlap with the evidence in the Labelle Affidavit. Further, as discussed below, the requirements of consultation are procedural, and have been compared to the administrative law requirements of procedural fairness ( Coldwater , at para 38 ).

Therefore, to the extent that the affidavits speak to the process of consultation, this evidence may be admissible under the second exception dealing with affidavits that demonstrate procedural defects.

Further, it is possible that some of the affiants’ evidence highlights an absence of evidence – again, Hydro does not point to any specifics. [ 94 ] Canada submits that certain portions of the Applicants’ affidavits are inadmissible pursuant to Rule 81(1) of the Federal Courts Rules because they are opinion or argument. [ 95 ] In particular, Canada identifies the following passages from the Applicants’ records: T-1147-19, Affidavit of Mike Sutherland, the last sentence of paragraph 126, the first sentence of paragraph 138, and paragraph 158 (opinion/argument); T-1150-19, Affidavit of Chief Meeches sworn October 31, 2019 - paragraph 24 (hearsay) and paragraphs 4, 5, 7, 14, 24, 33 and 35 (opinion/argument); T-1150-19, Affidavit of Ralph Roulette sworn October 30, 2019 - paragraph 49 (hearsay) and paragraph 57 (opinion/argument);

T-1150- 19, Affidavit of Patricia Mitchell sworn October 31, 2019 - paragraphs 36 (save for the first sentence), 37, 62 and 63 (opinion/argument); T-1141-19, Affidavit of Councillor Nelson sworn October 31, 2019 - paragraph 4 (save for the first sentence) (hearsay) and paragraphs 37, 40, 60, 61, 63, 66, 69, 71, 74, 85 and 87 (opinion/argument); T-1141-19, Affidavit of Patricia Mitchell sworn October 31, 2019 - paragraphs 35 (save for the first sentence), 36 and 65 (opinion/argument). [ 96 ] Rule 81 of the Federal Courts Rules states that: 81

(1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for

summary judgment or

summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included. [ 97 ] In Canada (Attorney General) v Quadrini , 2010 FCA 47 , the Court held: [18] The question of the respondent’s affidavit remains. As a general rule, the affidavit must contain relevant information which would be of assistance to the Court in determining the application. As stated by our Court in Dwyvenbode v. Canada (Attorney General), 2009 FCA 120 , the purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation .

The Court may strike affidavits, or portions of them, where they are abusive or clearly irrelevant, where they contain opinion, argument or legal conclusions, or where the Court is convinced that admissibility would be better resolved at an early stage so as to allow the hearing to proceed in a timely and orderly fashion ( McConnell v.

Canadian Human Rights Commission , 2004 FC 817 , affirmed 2005 FCA 389 ). [Emphasis in original] [ 98 ] To the extent that the portions mentioned above are hearsay, opinion, or argument – in particular paragraphs that ascribe Canada’s intent to delay or obstruct the process – the Court will give those portions little, if any, weight.

Specifically: Affidavit of Chief Dennis Meeches: I agree that the portions identified as opinion are indeed opinion, however I do not think that para 24 is hearsay because Chief Meeches indicates at the beginning of the affidavit that be believes information to be true; Affidavit of Ralph Roullette: I believe the identified portions are hearsay/opinion; Affidavit of Patricia Mitchell sworn October 31, 2019, Long Plain: I agree that paras 37, 62 and 63 are opinion/argument; Affidavit of Patricia Mitchell sworn October 31, 2019, Roseau River: I agree that paras 36 and 65 are opinion/argument; Affidavit of Councillor Nelson sworn October 31, 2019 – I agree that para 24 is hearsay and the remaining additional identified paragraphs are opinion/argument. [ 99 ] Regarding Hydro’s submission on the role of cross-examination, once again, Hydro does not cite any legal basis for its argument that the role of cross-examination is to clarify what was in the Record.

Rule 83 contemplates cross-examination of an affidavit made on an application and the Rule does not restrict the role or purpose of cross-examination in any way. Therefore, I will allow the cross- examinations to stand as part of the Record. B. General Legal Principles regarding the duty to consult [ 100 ] It is useful to start the analysis of the first and second issues – whether Canada correctly identified the scope of its duty to consult and whether Canada met its duty to consult – with a general overview of the law regarding the Crown’s duty to consult and accommodate for resource-based projects.

The SCC and the FCA has and continues to be a fertile ground for jurisprudential teaching regarding the duty to consult. Helpfully, the FCA has recently considered Canada’s duty to consult in a similar context of approving energy projects. [ 101 ] The duty to consult is grounded in the honour of the Crown. The obligation of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It is enshrined in s. 35 of the Constitution Act, 1982 , [ s. 35 ] which recognizes and affirms existing Aboriginal rights and titles.

S. 35 requires that the Crown act honourably in defining the rights s. 35 guarantees and in reconciling them with other rights and interests. This implies a duty to consult and, if appropriate, accommodate ( Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [ Haida ] at paras 16–18 , 20, 25, 32). [ 102 ] The duty to consult arises when the Crown has actual or constructive notice of a potential Aboriginal right and contemplates the potential for conduct that may affect that right ( Haida at para 35 ).

The duty to consult derives from the imperative to protect Aboriginal rights and interests while land and resource claims are ongoing or when a proposed action may impact an Aboriginal right. [ 103 ] The first stage of the analysis is to determine whether the duty to consult arises and if so where on the consultation spectrum Canada’s duty falls ( Haida at para 39 ).

The Crown does not dispute that the duty to consult arises here. [ 104 ] The task of conducting the often difficult determination of what constitutes the scope of the duty, is assisted by the SCC’s analysis in Haida : 42 At all stages, good faith on both sides is required . The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised ( Delgamuukw , supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. 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 theCrown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government frommaking decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see HalfwayRiver First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 , [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 2003 BCSC1422 , 19 B.C.L.R. (4th) 107 (B.C.S.C.).

Mere hard bargaining, however, will not offend an Aboriginal people’sright to be consulted. 44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right andpotential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage ishigh. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required.

While preciserequirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to makesubmissions for consideration, formal participation in the decision-making process, and provision of written reasons to showthat 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 oradministrative 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 approachedindividually. Each must also be approached flexibly, since the level of consultation required may change as the processgoes on and new information comes to light.

The controlling question in all situations is what is required to maintainthe honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect tothe interests at stake. …. [Emphasis added] (see also Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 at para 489 [TWN] and Coldwater at para 41) [105] The FCA considered the duty to consult for resource-based projects in Coldwater and TWN.

At issue in both cases was whetherCanada satisfied the duty to consult when approving the Trans-Mountain Pipeline Extension Project. [106] Coldwater held that "“…. the precise content of the honour of the Crown … also turns on the circumstances of the particularcase.” "The content of the honour of the Crown will depend on the circumstances of each case (para 45).

However, the purpose ofconsultation is to prevent the Crown from acting dishonourably by acting "“unilaterally in a way that could affect the rights ofIndigenous peoples, without first engaging in meaningful consultation”" (Coldwater, at para 46). [107] The Court avowed that practical requirements of the duty to consult have been compared to administrative law standard ofprocedural fairness (Coldwater, at para 38). While noting that the subjects of consultation are complex, and that reasonable minds willoften differ on the issues raised, ultimately consultation must be reasonable.

This means that Canada has to show that it has consideredand addressed the right claimed by Indigenous peoples in a meaningful way (Coldwater, at paras 39, 40). [108] The Court then went on to explain how to make that assessment: [41] So what do the words “reasonable” and “meaningful” mean in this context? The case law is replete with indicia, such asconsultation being more than “blowing off steam” (Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 54 [Mikisew 2005]), the Crown possessing a state of open-mindedness aboutaccommodation (Gitxaala Nation, para. 233), the Crown exercising “good faith” (Haida Nation, para. 41; Clyde River,paras. 23-24; Chippewas of the Thames, para. 44), the existence of two-way dialogue (Gitxaala Nation, para. 279), theprocess being more than “a process for exchanging and discussing information” (TWN 2018, paras. 500-502), theconducting of “dialogue […] that leads to a demonstrably serious consideration of accommodation” (TWN 2018, para. 501)and the Crown “grappl[ing] with the real concerns of the Indigenous applicants so as to explore possible accommodation ofthose concerns” (TWN 2018, para. 6).

In cases like this where deep consultation is required, the Supreme Court hassuggested the following non-binding indicia (Chippewas of the Thames, para. 47; Haida Nation, para. 44; Squamish FirstNation, para. 36; see also Yellowknives Dene First Nation, para. 66): the opportunity to make submissions for consideration; formal participation in the decision-making process; provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on thedecision; and dispute resolution procedures like mediation or administrative regimes with impartial decision-makers. [42] Examples and indicia in the case law are nothing more than indicators.

The Supreme Court, while providing us withmany of these indicia, has made it clear that what will satisfy the duty will vary from case to case, depending on thecircumstances (Haida Nation, para. 45). So where do we get guidance? [43] The Supreme Court has identified the concepts that animate the duty. In its view, the “controlling question” as to whatis “reasonable” or “meaningful” consultation is “what is required to maintain the honour of the Crown and to effectreconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake” (Haida Nation,

para. 45 ). [emphasis added] [ 109 ] This passage indicates that while there is a certain checklist of activities required for consultation, the guiding question is whether, in all of the circumstances, consultation maintained the honour of the Crown and promoted reconciliation. [ 110 ] In TWN , the FCA found that Canada’s consultation process met the requirements of deep consultation (para 549). The Court was clear the Crown can rely on the NEB process to satisfy the duty to consult (para 530).

However, the Court found that on the facts of that case, the supplemental consultation process, while in design capable of meeting the duty to consult, in execution consultation was not adequate. If any clarification was needed in prior jurisprudence to understand that a two way dialogue must take place it could not be set out more clearly in these paragraphs: [558] To summarize my reasons for this conclusion, Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue.

Canada’s ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate. For the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. [559] On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants.

While there are some examples of responsiveness to concerns, these limited examples are not sufficient to overcome the overall lack of response. The Supreme Court’s jurisprudence repeatedly emphasizes that dialogue must take place and must be a two-way exchange. The Crown is required to do more than to receive and document concerns and complaints… [Emphasis added] [ 111 ] In addition to the deficient dialogue, the Court held that Canada’s consultation was unreasonable for two reasons. First, Canada was unwilling to depart from the Board’s findings in order to genuinely understand the Indigenous parties’ concerns.

Second, it was deficient because of Canada’s " “erroneous view that it was unable to impose additional conditions” " on the project proponent ( TWN , at para 560 ). [ 112 ] Regarding accommodation, the Court in Coldwater held that meaningful consultation may or may not result in accommodation. Importantly, the Court indicated that if there was a failure to accommodate it does not mean there was no meaningful consultation (para 51).

The Court concluded that reconciliation does not dictate a particular outcome, and while it is preferable that the parties agree, Indigenous groups do not have a veto over projects (paras 52, 53). The two important ramifications flowing from this conclusion were that: Imposing too strict a standard of review for the process of consultation would effectively give Indigenous groups a veto; and Indigenous groups cannot bargain in bad faith in order to try to veto the project (paras 54, 55). [ 113 ] Consultation does not guarantee outcomes, and a form of accommodation can be to impose conditions on the proponents.

The duty to accommodate requires Canada to balance Indigenous concerns with the potential impact of the Project on Aboriginal and Treaty rights – a task that can be done by an administrative agency like the NEB ( Coldwater , at paras 58, 59 ). [ 114 ] The FCA in Coldwater concluded that the GIC’s decision was reasonable and that consultation was adequate: [76] In this case, the Governor in Council’s key justifications for deciding as it did are fully supported by evidence in the record.

The evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations, all very much consistent with the concepts of reconciliation and the honour of the Crown. [ 115 ] The legal issues and the consultation framework in these applications are very similar to what the Court considered in Coldwater and TWN . C.

Issue 1: In T-1141-19 (AWZ), T-1141-19 (Roseau River), T-1150-19 (Long Plain), did Canada properly assess the scope of its duty to consult and accommodate the First Nations?

(1) AWZ’s submissions [ 116 ] AWZ’s position is that Canada incorrectly determined that the Project’s impacts on AWZ were low and therefore AWZ was owed a moderate degree of consultation. AWZ stated that because their right to harvest moose and their right to enjoy its reserve lands both treaty rights were impacted they were owed a high level of consultation. i. Moose [ 117 ] AWZ submitted that when a First Nation has a treaty right to harvest mammals, the duty to consult falls at the high end of the spectrum ( Clyde River , at para 43 ).

AWZ’s position is that they as a nation have harvested moose in Manitoba since time immemorial. While the moose population in southern Manitoba has declined significantly in the past decade for other reasons to the point of few remaining, AWZ has indicate that the moose are beginning to return. The Court heard information regarding the responsibility of a First Nation to the moose generally, and specifically the First Nation’s responsibility to ensure the moose are able to return.

[118] Canada acknowledges that, when plentiful, moose were of critical value to AWZ and concluded that the impact on moose was lowand not significant. Canada’s conclusion was based on the NEB’s and EIS’s analysis and conclusion about the Project’s impact on thewildlife population, including moose. ii.

Use and Enjoyment of the Land (LOTW Water levels) [119] Treaty 3 set aside land for AWZ’s exclusive use, and the law recognizes that this interest in reserve land has the highest priorityand protection (Opetchsaht Indian Band v Canada, (SCC), [1997] 2 SCR 119 at paras 85-86; Guerin v The Queen, (SCC), [1984] 2 SCR 335), AWZsubmits that its ability to use and enjoy its reserve land is impacted by the LOTW’s water level, because water levels affect its ability tofish, harvest wild rice, and travel. Therefore, the Project’s impact on LOTW demanded deep consultation which is not what they wereaccorded.

(2) Roseau River’s and Long Plain’s submissions [120] These two First Nations submit that Canada pre-determined the scope of their duty to consult without conducting any consultationwith Roseau River or Long Plain. Further, they submit that Canada erred when it incorrectly determined that Roseau River was owed a"“medium”" level of consultation and Long Plain was owed a "“low”" level of consultation. [121] Both First Nations state that the consultation that occurred was the bare minimum, such that it did not meet the requirements ofconsultation at the lower end of the spectrum, let alone at the higher level.

Long Plain and Roseau River cite as Mikisew Cree FirstNation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at paragraph 64, for the proposition that even at the lower end of thespectrum, the requirements could require the Crown to "“provide notice to the First Nation, engaging directly with the First Nation,provide timely information about matters relevant to known First Nation interests, provide information about potential adverse impactson those interests so that concerns can be expressed, listen to concerns expressed, consider those concerns, and attempt to minimize anyadverse effects”". [122] The First Nations argued that because they provided the Crown with information of serious adverse impacts to their

section 35rights, including to its TLE interests, the Crown was required to engage in deep consultation. However, Canada did not alter its depth ofconsultation assessment. This incorrect depth of consultation meant Roseau River and Long Plain were "“deprived”" of the consultationprocess it was owed and that every decision that flowed from Canada’s incorrect assessment tainted the consultation process.

(3) Analysis – AWZ, Long Plain, and Roseau River [123] The scope and content of the duty to consult is reviewed on the correctness standard, while questions of the adequacy ofconsultation are reviewable on the standard of reasonableness (Haida at paras 61-62). In doing so, the substance of the consultation ismore important than its form (as labelled by the parties). That is to say, the extent of consultation that actually occurred is moreimportant than the depth it was labelled as being (Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para168; Coldwater, at paras 41-43).

The substance of the consultation, rather than its form or label, is what should be reviewed. [124] Canada acknowledges that it had a duty to consult each of the Applicants and that deep consultation requires the First Nations havethe opportunity to make submissions, to formally participate in the decision-making process, and to be provided written reasons (Haida,at para 44).

Canada submits that the guiding question is not the extent of the duty, but rather whether the consultation process, viewed asa whole, resulted in reasonable efforts to inform and consult (Haida, at para 62). [125] For all the Applicant First Nations, Canada says that it did a preliminary depth of DCA for each Indigenous group at the start ofsupplementary consultations, and based on this applied a label of low, medium or high consultation required.

However, Canada consultedwith each of the First Nations as if they were owed a deep level of consultation no matter what label they had given in the DCA.Canada’s position is that consulting every First Nations as if they were owed a deep level of consultation ensured that they met their dutyto consult. [126] AWZ’s position that because their Aboriginal and Treaty rights to hunt moose and to enjoy its reserve lands may be impacted bythe Project, they deserved a greater level of consultation and accommodation.

However, as discussed further below, the studies andevidence all found that the Project would not affect water levels on LOTW. Further, it was found that any impact to moose populationwould be minimal given that there are very few moose. In other words, Canada found that the risk of non-compensable damage was nothigh. [127] As set out above at paragraphs 123-125, the substance of the actual consultation is more important than the label.

Canada owedAWZ a moderate to high level of consultation, and did not owe AWZ the deepest level of consultation given the assessment of how theywere affected. [128] The materials show that Long Plain and Roseau River’s Aboriginal and Treaty rights may be impacted by the Project. In Canada’spreliminary depth of consultation assessment, sent to Roseau River on August 14, 2018, Canada assessed Roseau River as being owed a moderate duty. However, the draft CCAR sent to Roseau River on March 22, 2019 assessed Roseau River at the high level.

So it wouldappear that Canada and Roseau River ultimately agreed as to the depth of consultation Roseau River was owed. [129] Similarly, Canada assessed Long Plain as being owed a low level of consultation in their preliminary depth of consultationanalysis. In the draft CCAR sent to Long Plain on March 22, 2019, Canada’s assessment had not changed; however the final CCARstates that Long Plain was owed a moderate level of consultation. [130] As stated in Yellowknives Dene First Nation v Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148:

[53] I agree that little turns on the terminology used to describe the nature of consultation that was required. What is important is the determination of whether the level of consultation afforded was proportionate to the preliminary assessment of the strength of the claimed rights and the seriousness of the potential for adverse effects of the Proposed Development on those rights ( Haida Nation at paragraph 35 ). That is precisely the situation on these facts. [ 131 ] The fact that the depth of consultation assessment changed as the matter progressed demonstrates a willingness to listen and to be flexible.

Ultimately, regardless of the fact of the varying assessments between the three First Nations (AWZ was assessed as moderate to high; Long Plain was assessed as moderate; and Roseau River was assessed as a high level of consultation), the fact remains that all three First Nations were consulted on a deep level. [ 132 ] The real question is whether Canada adequately met its duty to consult – which would involve the opportunity to make submissions, to formally participate in the decision-making process, to be provided written reasons – and whether there was a meaningful consultation process that maintains the honour of the Crown.

D. Issue 2 - Constitutional law: Was it reasonable for the GIC to conclude that Canada’s consultation with Peguis, AWZ, Roseau River, and Long Plain was adequate?

(1) T-1147-19 – Peguis i. Peguis’ Submissions [ 133 ] Peguis’ submissions are that a review of the supplementary consultation process shows that the Crown failed to meet the requirements of maintaining the honour of the Crown and implementing reconciliation (citing Haida and Coldwater ). Peguis argued that consultation needs to be meaningful, and in these circumstances Canada should have tried to secure Peguis’ consent to the Project.

If consent was not possible, then Peguis said Canada should have selected an appropriate framework, engaged and dialogued meaningfully, and then actually explored accommodation measures with Peguis instead of proceeding without their participation in the supplementary consultation. Peguis summarized their position as being that Canada failed to satisfy the requirements of the duty to consult. They state that Canada did not meaningfully consult with Peguis, prevented the conditions necessary for meaningful consultation, and purported to determine accommodation measures before consulting.

Peguis says this decision affects Aboriginal and Treaty rights, which was made without adequate consultation. Therefore, they assert that it violates the duty to consult and should be quashed. [ 134 ] Peguis also makes submissions about the adequacy of consultation. On this issue, they submit that as a matter of law, adequate consultation requires both the selection of a reasonable process, and the reasonable execution of that process. Specifically, Peguis could not set up community meetings without first finalizing funding and signing the funding agreement.

Peguis states that they did not prevent, nor did they try to hinder or slow the process in anyway, but were thwarted in their efforts to participate before the final decision. ii. Canada’s position [ 135 ] Canada submits that the whole of the record needs to be considered when determining whether the duty to consult was satisfied.

Peguis, however, focuses only on whether supplemental consultation was adequate. [ 136 ] I agree with Canada that it is well established in the case law that existing regulatory processes like NEB hearings can satisfy Canada’s duty to consult ( TWN , at para 529 ), despite Peguis’ stated position that the NEB hearing was not " “ s. 35 consultation” " . [ 137 ] In this case, there is no direct evidence on the purpose of the supplementary consultation. Peguis submits that in initiating supplementary consultation, Canada was acknowledging that the NEB’s process was deficient.

However, Canada in response to that argument is that the August 14, 2018 letter initiating supplementary consultation stated that the purpose of supplementary consultation was, first, to identify any outstanding concerns regarding project-related impacts on Aboriginal and Treaty rights not communicated to the NEB, and second, to consider any incremental federal accommodation measure to address those concerns. Canada submits that nothing in this letter indicates that supplementary consultations were initiated because of concerns with the NEB process. iii.

Analysis [ 138 ] I find that Canada failed to meet the substantive requirements of the duty to consult with Peguis. Similar to TWN , although the process established was capable of satisfying Canada’s duty to consult, in execution it did not. This is why, as I noted earlier, it is critical to distinguish between the level of consultation identified in form, and the level of consultation undertaken in substance. [ 139 ] If Canada is going to initiate supplementary consultation, then that process must meet the requirements of adequate consultation.

This finding is supported by the Court’s decision in TWN , where the Court considered the adequacy of the Crown’s supplementary consultation after the NEB process. The FCA held that Canada was required to engage in meaningful consultation during this supplementary phase. If Canada is offering supplemental consultation, and the First Nations express interest in that consultation, it is not enough to simply say that because Peguis participated in the NEB process, the duty to consult was satisfied. That is not to say that the NEB process was deficient.

Rather, Canada indicated it was initiating supplemental consultation and there is no indication on the record that Canada and Peguis engaged in substantive consultation with a two-way conversation.

[ 140 ] In this case, and similar to TWN , I believe that the consultation framework was capable of meeting the requirements of the duty to consult, however in substance the duty was not met. In terms of what would have been required, as discussed above, Canada states that it proceeded as if each First Nation was owed a deep level of consultation. The case law is clear that deep consultation requires an exchange of information, the opportunity for Peguis to express its concerns, and there need to be written reasons demonstrating how those concerns impacted the outcome ( Coldwater , at para 41 ).

However, to the extent that Peguis submits Canada was required to obtain its consent, the Court in Coldwater rejected this submission, noting that a consent requirement would amount to a veto (para 194). [ 141 ] Canada does not dispute that it never actually met and discussed Peguis’ outstanding substantive concerns. Rather, Canada submits that Peguis had the opportunity to make submissions before the NEB. Further, Canada was willing to meet with Peguis, but did not because Peguis did not set up the community meetings.

It also submits that Peguis had more than six days notice about setting up community meetings, because it was aware as of August and September 2018 that Canada was open to engage in supplemental consultation, including community meetings. Finally, Canada submits that it addressed Peguis’ concerns that were identified in the NEB and CEC record and the CCAR.

Canada said Peguis benefitted from the accommodation provided in the amended conditions, and in their view, all of this means in substance that the duty to consult with Peguis was met. [ 142 ] Canada relied on Bigstone Cree Nation v Nova Gas Transmission Ltd, 2018 FCA 89 [ Bigstone ], where the Court held at paragraph 43 that the First Nations’ submissions that consultation was left too late, when they did not take part during the first three months of a four-month consultation process, could not succeed.

Similarly, in Coldwater , one of the applicants had submitted that they were not given an opportunity to comment on the updated CCAR. The Court held that while such an opportunity would have been desirable, because the Squamish had an opportunity to, and did submit independent submissions, not being able to comment on the updated CCAR was not a serious breach of the duty to consult (para 144). [ 143 ] Canada’s submissions cannot succeed. I recognize that the MPMO and Peguis spent a significant amount of time discussing funding, particularly whether the participant funding could be used for an archeological study.

Further, there is no evidence that these funding discussions were " “bad faith bargaining” " on Peguis’ part. Peguis’ evidence is that it could not proceed with setting up community meetings before it had finalized funding. Even if Canada’s position was that Peguis could proceed with consultation-related expenditures before finalizing funding, it did not make that clear to Peguis and the funding application form stated that no expenditures could be made prior to approval.

Until the agreement was signed, Peguis could not set up community meetings and then submit the cost of the expenditure to be paid (see above paragraph 41). I do not find that the delay attributed to Peguis was meant to thwart the consultation process. [ 144 ] These cases relied on above at paragraph 142 are distinguishable on this point. This is because there was no opportunity for Peguis to express its outstanding concerns, through correspondence, teleconference, a community meeting, a meeting with leadership or otherwise.

If the problem in TWN was that Canada did not meaningfully consider the First Nations’ concerns, here there was no effort by Canada to ascertain Peguis’ outstanding concerns, let alone meaningfully consider them. [ 145 ] In Coldwater , the Court found that Canada satisfied its duty to consult because " “the evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations, all very much consistent with the concepts of reconciliation and the honour of the Crown” " (para 76).

Canada did not demonstrate such genuine consideration in the case at hand when it comes to their engagement with Peguis during supplemental consultation. [ 146 ] Canada submits that because Peguis did not comment on the draft CCAR, it discerned Peguis’ concerns from its submissions before the CEC and NEB and ensured they were addressed and accommodated. [ 147 ] Recognizing that Peguis did not provide comments (for reasons discussed above), there are still a few problems with Canada’s approach.

Discerning Peguis’ concerns from the NEB and CEC process flies in the face of Canada’s stated purpose for supplementary consultation, which was to discern any outstanding c oncerns from the NEB process and propose additional or further accommodation measures. Further, the draft was distributed for comment in March 2019, and since Canada had not meet with Peguis up until that point, it had no way of discerning Peguis’ outstanding concerns. Canada sent the draft CCAR to all parties on March 22, 2019, and as a result it appears that they were working on a uniform timeline.

The problem is not that Peguis did not reply, but that Canada developed the CCAR without any further input and did not indicate this in the CCAR. Meaningful consultation which fulfills the duty to consult and accommodate must be a dialogue between the parties. The problem, in short, is that in this case, Canada’s consultation with Peguis was a monologue, rather than a dialogue. [ 148 ] As stated above, Canada’s response to Peguis’ concerns is that they were accommodated through the amendments to the NEB conditions.

However, as the FCA held in Gitxaala Nation v Canada , 2016 FCA 187 at paragraph 308 [ Gitxaala ]: " [308] In our view, it was not consistent with the duty to consult and the obligation of fair dealing for Canada to simply assert the Project’s impact would be mitigated without first discussing the nature and extent of the rights that were to be impacted. In order for the applicant/appellant First Nations to assess and consult upon the impacts of the Project on their rights there must first be a respectful dialogue about the asserted rights.

Once the duty to consult is acknowledged, a failure to consult cannot be justified by moving directly to accommodation. To do so is inconsistent with the principle of fair dealing and reconciliation " . [Emphasis added] [ 149 ] In this case, there was no substantive consultation, even though Canada acknowledged that such a duty arose and the failure to consult cannot be remedied through accommodation. [ 150 ] This is in contrast to Roseau River, Long Plain, and AWZ, the Applicants in the related files.

In those cases, Canada met with the First Nations, either before the draft CCAR or before finalizing the CCAR and there was an opportunity for them to express their concerns. There was no such opportunity here. I do recognize that Canada made an effort to consult with Peguis. However, that does not

mean they could not have made further efforts, for example by advising Peguis that the May 3 rd deadline had been extended or following up on the draft CCAR. Further, a review of the Peguis-specific annex shows that there was no input from Peguis about possible accommodation measures, unlike, for example, the AWZ annex, which shows accommodation measures proposed by AWZ and Canada’s assessment of those proposals. [ 151 ] Based on the above, I find that Canada did not adequately discharge its duty to consult Peguis.

(2) T-1442-19 – AWZ i. AWZ’s Submissions [ 152 ] AWZ submits that Canada failed to discharge its duty to consult and accommodate with respect to the Project’s impact on Treaty rights to hunt, the Project’s potential impact on its reserve land, and the First Nations’ lack of benefit from the Project. [ 153 ] AWZ’s submissions are that the Crown failed to consult with AWZ about these three outstanding issues after the NEB process. [ 154 ] Regarding AWZ’s right to harvest moose, AWZ asserts that consultation failed for two reasons.

First, Canada did not engage meaningfully but rather deferred to the NEB’s assessment. Second, the Crown’s incorrect impact assessment led it to conclude that no moose specific accommodation was required. AWZ submits that the Project’s impact on moose was an " “obvious and unresolved” " issue from the NEB hearing. While both Hydro’s EIS and Canada found that the Project will have negative effects on moose, the NEB held that the Project’s impact on traditional lands and resources were insignificant. During supplemental consultation, AWZ explained their concerns and proposed possible accommodation measures.

However, Canada deferred to the NEB’s findings and offered no new information to address AWZ’s concerns [ 155 ] AWZ submits that Canada’s error in assessing the Project’s impact on moose led to Canada’s conc

[…]